State Constitutions

• Author: A. E. Dick Howard
• Pages: 2499-2503

Page 2499

When the American colonies broke with the mother country, several traditions led to the drafting of constitutions for the newly independent states. Steeped in the writings of JOHN LOCKE, Americans might have viewed themselves as being in a kind of state of nature; writing state constitutions would therefore be the adoption of social compacts. British constitutionalism offered a precedent; although Britain had, of course, no written constitution, the colonists, during the years up to the American Revolution, had become accustomed to relying upon "liberty documents" such as MAGNA CARTA. Americans could look as well to the example of their COLONIAL CHARTERS, whose guarantee of the "privileges, franchises, and immunities" of Englishmen they had invoked against British policies on revenue and other subjects during the 1760s and 1770s.

In 1775, Massachusetts proposed that Congress draft a model constitution for all the states. Congress chose not to take this step. In May 1776, Virginia's convention, meeting in Williamsburg, instructed its delegates in Congress to introduce a resolution declaring the colonies to be free and independent states. The Virginia resolves viewed the drafting of state constitutions as best left to the several states.

The drafting of a constitution was, in 1776, a new art, but drafters did not want for advice. As early as November 1775, JOHN ADAMS had offered his ideas on a constitution for Virginia in a letter to RICHARD HENRY LEE; Adams's plan was of a distinctly democratic flavor. Others, like Carter Braxton, looked to the British constitution, in the form it took after the Glorious Revolution of 1688?1689, as the best model for Americans. THOMAS JEFFERSON, then in Philadelphia, thought that the people ought to have a say if a state constitution was to be written. As early as 1776, work on, and thinking about, state constitutions foretold the emergence of comparative CONSTITUTIONALISM.

Virginia's convention set to work on two documents: a "declaration of rights" and a "plan of government." GEORGE MASON of Fairfax County had a central role in the drafting of both documents. The VIRGINIA DECLARATION OF RIGHTS became especially influential. It served as a model for the bill of rights subsequently adopted in other states,

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and it foreshadowed the BILL OF RIGHTS added to the United States Constitution in 1791. Indeed, French scholars have traced the influence of Mason's draft on their declaration of Rights of Man and Citizen, adopted in 1789.

In the 1770s the distinction between a constitution and ordinary laws was still imperfectly perceived. One thinks of a constitution as the ultimate act of the people, yet the first state constitutions were commonly drafted by revolutionary conventions or legislative assemblies and then enacted by the same bodies, without referendum. This pattern of enactment presented something of the paradox found in British notions of Magna Carta as a superstatute, yet, like other acts of the realm, subject to alteration or repeal by Parliament. Both Thomas Jefferson and JAMES MADISON argued that Virginia's 1776 convention had no authority to enact anything but ordinary legislation; by such reasoning, the 1776 constitution was only an ordinance. Jefferson called for a constitution resting "on a bottom which none will dispute."

It fell to Massachusetts to perfect the idea of a constitution based upon popular consent. In western Massachusetts, the Berkshire constitutionalists called for a "social Compact" so that there would be a clear distinction between FUNDAMENTAL LAW and the acts of the legislature. There must be, as an address from Pittsfield to the General Court put it, a foundation "from which the Legislature derives its authority." When the Commonwealth's leaders sought in 1779 to produce a constitution without full popular participation, western Massachusetts resisted. In 1780 a CONSTITUTIONAL CONVENTION was elected specifically to draft a constitution, which was then submitted to the voters for their approval. The political theory underlying the MASSACHUSETTS CONSTITUTION of 1780 is explicit in the document's declaration that it is "a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."

The early state constitutions varied in important particulars. For example, in some states, legislatures were to be bicameral, and in others, unicameral. Notwithstanding such variations, however, the early state constitutions reflected certain shared assumptions. There was common ground, not simply in the tenets of political theory but more immediately in Americans' political and social experience during the colonial period, a gestation period for what became the framework of American constitutionalism. The first state constitutions bespoke a belief in LIMITED GOVERNMENT, the consent of the governed, and frequent elections. They were based, by and large, on a Whig tradition emphasizing direct, active, continuing popular control over the legislature in particular and of government in general.

In these constitutions, professions of theory sometimes conflicted with reality. A commitment to the SEPARATION OF POWERS was common, yet the early state constitutions in fact made the legislature the dominant branch of government. State governors were, by contrast, virtual ciphers. Only in New York and Massachusetts was the governor elected by the...