THE REVOLUTION AND STATE CONSTITUTION-MAKING AND LEGAL REFORM

R. B. Bernstein,
Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998),
and Adjunct Professor, New York Law School

Any revolution whose architects hope for it to be successful must make sure that their revolution is constructive as well as destructive. And the Americans of 1776 were well-aware of this essential quality of successful revolutions. For one thing, they believed that they had launched a revolution on behalf of constitutional principles that, they believed, they had preserved in America while they were being corrupted in Great Britain. For another, they knew the value and necessity of legitimate government. Indeed, the point of the Americans' constitutional argument with Great Britain was that they were defending legitimate government -- according to their understanding of what the unwritten British constitution was about. In the Americans' eyes, no government that wielded power without legitimacy could have authority.

In late 1775 and 1776, as the dispute between the Americans and the British flared into military conflict, British colonial governments crumbled. Self-appointed provincial congresses and revolutionary councils (often colonial legislatures' lower houses meeting under alternative names and forms) took the place of the disintegrating colonial governments and struggled to supply the void of legitimacy that the collapse of those governments left behind. To be sure, these quasi-governmental bodies had the allegiance of the people -- at least, of those people who did not actively resist (and, perhaps, of those people who simply wanted to get on with their lives). But they lacked legitimacy. In 1775-1776, the great American quest side-by-side with the quest for independence was the quest for legitimate government.

That quest found its greatest and most sophisticated intellectual champion in John Adams of Massachusetts, who represented his colony in both the First and the Second Continental Congresses. For a solid year, from May 1775 to May 1776, Adams insisted that the Second Continental Congress had to respond to the American colonists' pleas for guidance as to reestablishing legitimate government. Finally, on 10 May 1776, Congress adopted his resolution authorizing the colonies to form new constitutions; five days later, Congress also adopted his preamble to that resolution stating the justifications for that step.

The resolution's preamble and its operative clause reveal the constitutional assumptions and strategies of the Americans in the last stages of the dispute with Britain. First, the resolution placed the responsibility for the step it authorized squarely on the shoulders of George III and his allies in Britain. Second, the replacing of colonial forms of government deriving their authority from the consent of the Crown (the old colonial charters) with new forms of government framed and adopted by the people of the several colonies at least arguably was an actual, practical declaration of American independence -- supplanting governments based on royal sovereignty and royal consent with governments based on popular consent and popular control. John Adams believed so, and, for the rest of his life, he never understood why the Declaration of Independence stole the thunder.

Other Americans also understood the need for legitimate government -- for example, the great pamphleteer Thomas Paine. We think of Common Sense (1776) as a hammer-blow shattering the old, constricting context of the constitutional argument between Great Britain and the colonies; we tend to assume that Common Sense swept away the argument over the British constitution and put the quest for independence at the core of the Americans' political agenda. We should not forget, however, that Paine recognized as clearly as John Adams did that the governments founded on the basis of American independence had to be legitimate. Common Sense sets forth the governmental plan that Paine deemed satisfactory: Each colony was to govern itself by a congress or legislature, with no independent executive and no independent judiciary. The Americans generally would be governed on a similar pattern. Paine denied the need for doctrines of separation of powers or checks and balances. The people being their own governors, he insisted, they had no need of such devices, which were a legacy of the time when the people and their government were natural adversaries. Paine taught that government should be simple, and that needless complexities such as doctrines of separation of powers and checks and balances were the tools of designing politicians who wanted to keep the people ignorant and enslaved.

Paine's prescription, echoed by the influential 1776 pamphlet The People the Best Governors (which some scholars attribute to Paine), was followed by the architects of the Pennsylvania constitution of 1776, which in turn served as the basis for the constitutions of the state of Georgia (1776) and of the "independent republic of Vermont" (1777). Pennsylvania had a one-house legislature (though it assigned to the people the power to approve or disapprove the laws made by the General Assembly, and thus the people can be seen as a second-chamber at large). There was no independent executive; the Supreme Executive Council provided by that constitution resembles the board of directors of a large business corporation, with the President of that council resembling the chairman of the board. There was no independent judiciary having constitutional status -- though, of course, the legislature could create a judicial system as a matter of statutory law.

Pennsylvania was only the most radical of the first wave of state constitutions -- the revolutionary constitutions of 1776. (Connecticut and Rhode Island merely revised their old colonial charters to remove all references to their former colonial status.) Revolutionary conventions and congresses in such colonies as Delaware, Virginia, New Jersey, and New Hampshire drafted constitutions rapidly. These constitutions codified the Americans' responses to the development of colonial politics in the eighteenth century -- in particular to the contests between those branches of government dominated by British officials and their colonial allies (the executive and the judiciary) and those branches of government dominated by American colonists (the legislatures, especially the lower houses). It was only natural for state constitution-makers to vest more power in the branches that had been their friends and strip power from branches that had been their foes.

These new state constitutions each had an executive branch led by a governor, but the governor was elected by the legislature, and responsible to the legislature; he had no veto power or appointment power, and indeed few or no independent powers of any kind. Their judiciary systems, like that of Pennsylvania, were matters for the legislature to design, to staff, and to monitor.

One key development emerged from this stage of constitution-making -- the invention of the bill of rights or declaration of rights as a core component of a constitutional system. Virginia's George Mason drafted the first declaration of rights that was an integral part of a polity's written constitution, but he framed it in conditional language. Why? Rights are "what is right", or right principles -- not yet individual rights enforceable against government through the means of courts. The Americans of the late 1770s thus understood a bill of rights as a codification of what ought to be the case in a free society, a guideline by reference to which voters might assess the actions of their elected representatives.

Although, as John Phillip Reid has shown, many provisions of these state constitutions are traceable to the principles of British constitutionalism, it is at least as significant that many of those early state constitutions were reactions against those traditions as the Americans saw them in operation in the mother country and in the colonial governments in the 1760s and 1770s.

Not all Americans endorsed the first wave of state constitution-making. For example, Thomas Jefferson was skeptical of lodging all power in the hands of the legislature; "one hundred seventy three despots," he wrote, "would surely be as oppressive as one." (His convictions on this point only intensified after his mortifying term -- in 1781 -- as Virginia's governor; powerless to muster the state's military force to repel British invasion, he then suffered the indignity of legislative inquiries into his conduct, from which he never fully recovered.)

Far more famous and vociferous in his criticisms of radical state constitution-making was John Adams. Beginning in November of 1775, Adams began receiving letters from politicians, particularly in the southern colonies, who sought his advice about constitution-making. Patiently, Adams copied out and from time to time refined and expanded his prescription for sound constitutional government. Finally, in April of 1776, he published one of these letters as a pamphlet, Thoughts on Government (1776). Adams later noted that one spur for his publishing his own pamphlet on the question was the appearance a few months before of Thomas Paine's Common Sense; though Adams valued Paine's arguments for independence, he was shaken and appalled by Paine's rejections of doctrines of separation of powers and checks and balances. Countering Paine, Adams insisted that these doctrines were not deliberate mystifications of the "divine science of politics" but bulwarks of liberty that had been tested by centuries of experience, particularly in the ancient world, in England, and in the colonies.

By contrast with the first round of constitution-making, New York's admirable constitution of 1777 (drafted by, among other people, John Jay and Gouverneur Morris) was a major rethinking of what a constitution should be. This document possessed the following important features. First, it carefully cited the authority by which New York's provincial congress justified its framing of a new constitution -- specifically the Second Continental Congress's resolution of May 1776 and the Declaration of Independence adopted by Congress on 4 July 1776 and ratified by New York's provincial congress later that month. Second, it authorized an independent, popularly elected governor who would serve a three-year term (the longest set by any state) and who would have a veto power and a power to appoint officials (even though he would share both powers, one with a Council of Revision and the other with a Council of Appointments). Third, the governor could exercise that modified and shared veto power over legislation -- but, if the legislature could muster a two-thirds majority in each house, it could override that veto. The mechanics of the reversible veto, in particular, influenced all later state constitutions -- and, a decade later, the framing of the Constitution of the United States. Finally, although the New York constitution did not possess a separate bill of rights, it did include several rights-declaring provisions -- including the first "due process" clause in American constitutional history.

Ironically, Massachusetts, the home of the greatest and most insistent campaigner for state constitution-making, John Adams, put off constitution-making for several years. But, when they finally got round to it, they came up with the most fully developed of the Revolutionary state constitutions (with New York, a model for the United States Constitution), and a vitally important innovation in the framing and adoption of constitutions. We first consider the 1780 constitution as a charter of government, and then examine the process by which it was framed and adopted.

As in New York, the Massachusetts constitution of 1780 provided for a popularly-elected, powerful, independent governor. He would serve one year, armed with a veto power (though one that could be overridden, as in New York, by a two-thirds vote of both houses of the state legislature) and an appointment power. The constitution was prefaced with an elaborate declaration of rights, in thirty articles -- but, as with previous state bills of rights, this declaration of rights was a codification of right things or sound principles of republican government rather than of judicially-enforceable guarantees of individual liberty. For one thing, Articles II and III of the declaration of rights codified the people's right -- and duty -- to worship God, and the power of the government to support various religious denominations to preserve the virtue of the people. For another, the now-famous article XXX, on separation of powers, was essentially a statement of absolute separation of powers "to the end it be a government of laws and not of men" -- even though such provisions as that giving the governor a veto power, or that giving the legislature power to override the governor's veto, suggested a system of checks and balances -- separated institutions sharing power -- rather than one of a strict separation of powers.

In the constitution itself, Article VI, on education, is noteworthy for its emphasis on an educated citizenry as a bulwark of free and virtuous republican government, for its fostering of public systems of education, and for its provisions for what we know as Harvard University.

Massachusetts is at least as important for its contributions to constitutional theory of framing and adopting constitutions as for the content of the 1780 Constitution. The key concept is the constituent power -- the power to frame, or constitute, a government. Who should exercise that power? Previously, each colony had a provincial congress or convention to coordinate resistance to British forces. Forced by the pressure of events and the collapse of legitimate colonial governments, these congresses and conventions arrogated to themselves the power to frame a constitution and to declare it adopted. But, in Massachusetts, the people had other ideas.

In 1778, after two years of struggling to conduct business with a jury-rigged independent version of the old colonial political system, the Massachusetts legislature informed the people that their participation in the next legislative election would additionally authorize the legislature to frame a new constitution. The constitution the legislature drafted then would be submitted to the voters for their approval. In the first decision of this type in human history, the voters rejected the proposed constitution by a margin of about 3 to 1. Among reasons for this document's defeat was its lack of a declaration of rights, its failure to embody doctrines of separation of powers or of checks and balances, and the defective procedure by which it was framed and submitted to the people.

In 1779-1780, in response to the political controversy swirling around the framing and defeat of the 1778 constitution, the people of Massachusetts tried something new. Under the pressure of the 1779 defeat, the legislature proposed that the people elect a separate body that would frame the constitution, that it should send the proposed new charter of government to the town meetings for their comments, and that it then would determine whether the new constitution had been adopted. Thus, Massachusetts invented the constitutional convention -- a body specially chosen (elected) to frame a new constitution. Meeting in Cambridge in late 1779, the convention named a smaller drafting committee, which in turn delegated the major work to John Adams, then at home for a brief period between diplomatic missions. Working hastily but with skill, Adams drafted what has since been praised as the most eloquent of all the state constitutions. The drafting committee made minor changes in his version, and the convention tinkered some more before sending the draft to the town meetings for their approval.

We already have reviewed some of the key provisions of the Massachusetts constitution of 1780. What most historians regard as most significant about that document, however, is not its substance but the debate over its provisions in the town meetings. Towns throughout the state deliberated the proposed constitution, clause by clause and provision by provision. Then the town meetings prepared documents known as "returns" or "results," setting forth their votes on the provisions and clauses of the proposed constitution and often explaining their reasons for approving some provisions and disapproving others. The most elaborate and famous of these "results" was the "Essex Result," drafted by the young lawyer Theophilus Parsons and showing the deep influence of John Adams's Thoughts on Government.

When the convention received the dozens of returns and results from the town meeting, as Samuel Eliot Morison showed in an early and influential study of the adoption of the constitution, the delegates artfully juggled votes to ensure that each and every provision received a majority vote. (As always, the American political formula is: high principle plus low politics.) Thus, on 25 October 1780, the convention declared the Massachusetts constitution to be in effect. Within fifteen years of the framing and adoption of the Massachusetts constitution of 1780, virtually every state recast its constitution to benefit from the experiences of New York and Massachusetts.

All these constitutions were influential when, in the late 1780s, Americans began to contemplate the need for federal constitutional reform -- but in different ways: some as models for emulation, others as sources of discrete terminology or phraseology, still others as models to avoid or guard against.

The formation of state polities and of states' law continued below the constitutional level, too. Three key examples:

(i) Religious liberty and issues of church and state:

The two contrasting models that define the spectrum of American experiments in defining church-state relations and individual religious liberty are Article 16 of the Virginia Declaration of Rights of 1776, which emphasize the individual's right to worship in any manner he deems fit so long as he does so peaceably, and Articles II and III of the Massachusetts Declaration of Rights of 1780, which emphasizes individual duties of worship and the power of government to levy taxes for the purpose of supporting religious institutions. Buttressing the Virginia Declaration of Rights was the Virginia Statute for Religious Freedom drafted in 1779 by Thomas Jefferson but only enacted in 1786 after a difficult battle to disestablish the Anglican Church in Virginia. This statute, which stresses that "Almighty God hath created the mind free" and renounces any governmental power to direct the individual citizen in matters of religious belief, was hailed in some quarters (including Europe) as a landmark in the history of human liberty and damned in others as a concession to irreligion.

Jefferson's draft of the Virginia Statute for Religious Freedom manifested his ardent belief that the goal of separation of church and state was to protect the individual mind and the state from the corrosive influences of religion. (The Virginia legislature, while it accepted the core of his argument, edited Jefferson's draft to remove the radical Jeffersonian stress on the uncontrollable nature of the human mind.) James Madison agreed with Jefferson's case for strict separation of church and state to protect individual thought and the secular political realm, but he also argued -- in his 1785 "Memorial and Remonstrance against Religious Assessments" -- that separation of church and state also protects the individual mind and religion from the corrosive influences of the state.

We should remember, again, that Virginia was the leading edge of separation of church and state, but it was only one end of the spectrum of state solutions to the problem of church-state relations. Massachusetts and several other New England states, for example, maintained "multiple establishments" of religion and used the power of government to mandate an individual's duty to worship the Supreme Being. Still other states were less restrictive than that, but imposed religious tests on voting and office-holding. Pennsylvania, for example, required any candidate for office to swear to or affirm his belief in the divine inspiration of the Old and New Testaments.

(ii) Loyalties

Legend has it that one-third of the American people supported the Revolution, one-third opposed it, and one-third took cover and hoped that nobody would ask them what they thought. Whatever the figures, the key problem here is what James Kettner and Linda Kerber have called volitional citizenship -- are you a citizen or a subject because that's where you were born, or may you choose to change the focus of your loyalty and patriotism? Also, imagine a husband and wife. The husband flees because he is a Loyalist, and the Committee for Detecting and Defeating conspiracies confronts the wife, who is running the farm, and tells her that it must confiscate the farm because her husband is a Loyalist. "But I'm not," she says. "I'll be happy to swear the oath to support the Revolution." Under the old common-law doctrine of coverture, which merges the husband's and wife's legal identities into one unit, for which the husband is the sole spokesman, the husband is the only one whose loyalty is of concern to us, and thus the farm gets confiscated. But the wife says, "Wait a minute -- I thought that this Revolution was being fought for liberty, and I should be free to have my own ideas about this, and besides -- isn't coverture a British common-law doctrine?"

Suffice it to say that the tragedy of the Loyalists (sometimes known as Tories) is one of the key points of the constitutional and legal history of the American Revolution. The legacy of the Loyalists is the treason clause of the Constitution, which establishes a narrow and precise definition of the crime of treason as a fundamental component of the Constitution.

(iii) Slavery, Manumission, and Abolition

Samuel Johnson (the literary critic, poet, and dictionary-maker who is most famous as the subject of James Boswell's Life of Johnson) derided the Americans' arguments for liberty, saying, "How is it that we hear the loudest yelps for liberty from the drivers of negroes?" Johnson's comment is especially ironic in light of Somerset v. Stewart (Court of King's Bench 1772), in which the great English jurist -- and Tory -- William Murray, Lord Mansfield, issued a writ of habeas corpus to release from slavery an American slave brought to Great Britain. Some argue that Somerset v. Stewart abolished slavery under the common law of England; others insist that it merely defined the principles at the heart of all later legal controversies over slavery. During the Revolution, the Americans continued to argue over whether slavery was consistent with a democratic revolution. Jefferson argued for gradual manumission (release of a slave with compensation to the owner); others pleaded for emancipation of the slaves and abolition of slavery. Northern states adopted manumission statutes and other measures over a generation that put slavery into what Lincoln would call the course of ultimate extinction. Southern states had a far more difficult time of dealing with the issue, and ultimately gave up.

Related Topics

THE REVOLUTION AND STATE CONSTITUTION-MAKING AND LEGAL REFORM

R. B. Bernstein, Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998), and Adjunct Professor, New York Law School

R. B. Bernstein,
Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998),
and Adjunct Professor, New York Law School