Between Authority and Liberty

State Constitution-making in Revolutionary America

Marc W. Kruman

• Publisher: The University of North Carolina Press
• Year: 2014
• Print ISBN: 9780807847978, 9780807823026
• eBook ISBN: 9781469620381
• Topic: History
• Subtopic: Early American History
• Index: History

In a major reinterpretation of American political thought in the revolutionary era, Marc Kruman explores the process of constitution making in each of the thirteen original states and shows that the framers created a distinctively American science of politics well before the end of the Confederation era. Suspicious of all government power, state constitution makers greatly feared arbitrary power and mistrusted legislators' ability to represent the people's interests. For these reasons, they broadened the suffrage and introduced frequent elections as a check against legislative self-interest. This analysis challenges Gordon Wood's now-classic argument that, at the beginning of the Revolution, the founders placed great faith in legislators as representatives of the people. According to Kruman, revolutionaries entrusted state constitution making only to members of temporary provincial congresses or constitutional conventions whose task it was to restrict legislative power. At the same time, Americans maintained a belief in the existence of a public good that legislators and magistrates, when properly curbed by one another and by a politically active citizenry, might pursue.

1

Nearly in the Old Channel?

English Constitutionalism, Imperial Crisis, and State Formation in Revolutionary America

On May 10 and 15,1776, the Continental Congress ordered the suppression of “the exercise of every kind of authority under the . . . crown” and urged that “all the powers of government, [be] exerted under the authority of the people of the colonies.”¹ Congressional delegates viewed state government formation as both a cause and an effect of revolution. Leaders like John Adams saw the creation of state governments as de facto state declarations of independence: the mere existence of independent state governments would sever American ties to Great Britain. But urgency about the need for governments increased when royal authority collapsed after Lexington and Concord. Provincial congresses and conventions filled the governmental breach left by departing royal officials, but because political leaders perceived these bodies as temporary, extralegal expedients, they hastened to establish regular governments to secure civil order and foster independence.

Past experience seemed to dictate the shape of the new governments. “The great outlines of our future government, are to be found in our former,” averred one New Yorker.² An “Independent Whig” agreed: “Some of the Colonies have their modes of Government, so agreeable to the voice and suited to the rights of the people, and which they have been so long habituated to, that an attempt to alter them would only occasion confusion.”³ A worried Virginian urged each colony to adopt “a Constitution . . . as nearly resembling the old one as Circumstances, and the Merit of that Constitution will admit of.”⁴ Another writer saw great opportunities in impending independence: “The British constitution may be immediately restored to each colony, with the great and necessary improvements of a Governor and Council chosen by the people.”⁵

Many contemporaries, and subsequent historians, believed that the framers of the state constitutions had drafted such documents based on the British model. “This form is much approved of, as matters are expected to go on nearly in the old channel,” one Charlestonian wrote appreciatively of South Carolina’s temporary constitution of 1776.⁶ In general, historians have seen marked continuities between the new state constitutions and the royal past. They have been struck especially by the presence of bicameral legislatures and governors, a structure that “closely resembled the old governments,” which in turn had reflected English ideas about good government.⁷

The extent to which Americans attempted to maintain constitutional continuity may be measured by examining the fate of Carter Braxton’s plan for a Virginia constitution. As delegates to the Virginia convention debated a plan of government for the colony, they received advice from different quarters. From Philadelphia, Thomas Jefferson offered one of his three drafts of a state constitution to the convention for its consideration.⁸ Jefferson’s recommendations influenced enough delegates to change some portions of the constitution. But Carter Braxton’s constitutional model attracted more attention, and abuse.

Writing under the pseudonym “A Native,” Braxton offered an English Radical Whig diagnosis of the ills besetting the British constitution and prescribed for Virginia a constitution resistant to such political diseases. Because the British constitution approached perfection, he argued, Virginians ought to emulate it. But he also found room for improvement. The king had used his patronage and fiscal policies to destroy the independence of both houses of Parliament. Following the Radical Whig insistence that frequent elections would ensure legislative independence, Braxton proposed that Virginia replace the septennial election of parliamentarians in England with the triennial election of assemblymen by the traditional electorate of freeholders. He also urged that the constitution prohibit representatives from holding posts of profit.

Otherwise, Braxton recommended a British system similar in structure to Virginia’s colonial government. The assembly would elect a governor for a term of good behavior and a council of twenty-four members for life. By suggesting such terms of office, Braxton came remarkably close to proposing kingship and lordship based, however tenuously, upon direct or indirect popular election. To be sure, the match with British practice was imperfect. Councillors and the governor could not bequeath offices to their heirs. Representatives and councillors could remove the governor from office. As in England, the governor and a privy council would make military and judicial appointments, but the assembly would appoint the state treasurer, secretary, and other “great officers.”⁹

Because Braxton’s essay came as close as any revolutionary tract to proposing a constitution faithful to English tradition, its repudiation by well-placed Virginians is revealing. Richard Henry Lee, for one, dismissed it as a “contemptible little Tract.”¹⁰ “A silly Thing. . . . The whole performance [is] an Affront and Disgrace to this Country,” scoffed Patrick Henry.¹¹ The convention punished Braxton by denying him reelection to the Continental Congress.¹² But the most telling commentary came from the Virginia state constitution itself. The constitution included only two of Braxton’s recommendations: the uncontroversial maintenance of existing suffrage requirements and the innovative exclusion of officeholders from the legislature. Otherwise, the authors of the state constitution implicitly repudiated Braxton’s proposal. Voters elected members of the lower house annually and of the upper house quadrennially. The same electorate chose members of both houses, who possessed no special social or economic distinctions, thereby undermining the tenets of mixed government. Together, the two houses elected the nearly powerless governor (with no veto and minimal appointive power) for a one-year term, not the stuff of which monarchs—even republican monarchs—were made. And the short terms of legislators, dependent upon popular election in a society in which more than half of the free white adult males could vote, meant constitution makers feared unlimited power in the hands of any man or group of men. Moreover, in an effort to limit the powers of legislators as well as those of the governor, the framers carefully separated the branches of government by forbidding individuals to hold office in more than one branch.

The fate of Braxton’s proposals reveals how many American revolutionaries dismissed out of hand any consideration of retaining the colonial constitutional order. Despite talk about continuity and the need to preserve familiar governmental structures in a time of public unrest, the framers of the first constitutions were determined to “new-modell” state governments.¹³

How did Americans do this? The most important and influential study of the state constitutions, Gordon Woods Creation of the American Republic, argues, on the one hand, that the revolutionaries of 1776 maintained traditional English Whig notions about representation, government, and constitutionalism but, on the other hand, that their deep fear of the magistracy caused them to write constitutions strikingly at odds with those beliefs. At the beginning of the Revolution, Wood contends, medieval political categories shaped the constitutional thought and practice of the revolutionary political leadership.¹⁴ American Whigs envisioned a political society in which the magistrate protected the peoples liberties and received, in return, their allegiance. But because people holding power always lusted for more, politics became “a perpetual battle” between potentially tyrannical rulers and the people (who participated in public life mainly by electing assemblymen) protecting their liberty.

British imperial policy after the Seven Years’ War seemed to validate Whig political theory. Leaders of the American resistance blamed oppressive British policies on the king’s ministers, who, they charged, manipulated the House of Commons in order to establish an arbitrary government. The House of Commons, no longer a bulwark of popular liberty but a tool of the ministry, supposedly had passed unconstitutional, oppressive legislation effective both at home and abroad. As a consequence of the persistence of medieval political theory and its validation after the Stamp Act crisis, Americans wrote constitutions that enfeebled governors and situated virtually all governmental power in the hands of enlarged legislatures more entirely representative of the people.

As revolutionaries launched their experiment in republicanism, the responsibilities of public men increased. Republicanism, according to Wood, demanded “the sacrifice of individual interests to the greater good of the whole.”¹⁵ Underpinning republican governments were the related assumptions that a common good existed “prior to and distinct from the various private interests that made up the community” and that the people “were a homogeneous body” capable of discerning and expressing commonalities.¹⁶

Both republican ideology and fear of a powerful magistracy, Wood explains, shaped revolutionaries’ understanding of political society. These factors influenced conceptions of a constitution, the composition of political society, membership in and representation of the political community, the extent of governmental powers, and the distribution of those powers.

The idea of a constitution, for example, supposedly emerged slowly. By 1776, in response to the imperial debate, American theorists concluded that every government had to be based upon some written document.¹⁷ They were concerned primarily with fashioning a document that restrained the magistracy. Building upon the notion that all government originated in a contract between the ruler and the ruled, they believed that, in return for allegiance, the magistracy owed the people protection. The revolutionaries distinguished between fundamental and statutory law, but only at a “somewhat theoretical” level. Constitutions restrained magistrates, not legislatures. As the peoples “legitimate representatives,” legislatures could revise a constitution at will, at least until Americans developed “a new conception of representation.”¹⁸ By limiting the magistracy, the constitutions presumably would restrain the only part of government that potentially endangered historic rights. Thus, declarations of rights were inessential; to the extent they were deemed necessary, they aimed to restrict the magistracy further.¹⁹

Similarly, revolutionaries assumed that state legislatures, as bodies representing the people, possessed exclusive authority to draft constitutions. They viewed conventions as “legally deficient legislature[s],” in contrast to the modern notion of a constitutional convention as the embodiment of the sovereign people.²⁰

The same obsessive fear of the magistrate’s powers, according to Wood, also molded revolutionary thinking about constitutional doctrines like the separation of powers. Among American patriots, separation of powers did not mean the partitioning of governmental functions among different parts of the government. After all, colonial assemblies had been usurping and restraining executive power throughout the eighteenth century. Rather, the doctrine called to mind the elimination of executive meddling in legislative affairs.²¹

During the Revolution, however, traditional beliefs about representation crumbled, compelling Americans to view the legislatures not as embodiments of the popular will, but as threats to their liberty. Consequently, they developed new, modern understandings of constitutional conventions, constitutions, bills of rights, the separation of powers doctrine, and bicameralism.²²

While revolutionaries jettisoned the British notion of virtual representation (i.e., that every member of Parliament represented all members of the empire) in their argument with Britain, they retained it at home. They could move in seemingly opposite directions simultaneously because of their adherence to the concept of interest. Virtual representation explained the proper functioning of representation only if the legislator and the people shared the same interests. But, they declared, the concerns of England and the British North American colonies diverged markedly. Only in colonial assemblies did the interests of the representative and his constituents converge: what benefited or injured one, benefited or injured the other. So long as local assemblies remained active and vital, colonists rarely contemplated the act of or qualifications for voting; the disfranchised were as well represented as the electors because the interests of all were the same.²³

Thus, Wood argues, constitution makers in 1776 and 1777 largely ignored voting rights. Instead, they strengthened and expanded the legislature and weakened the power of the magistrate. In most states, patriots curbed or eliminated the governors patronage and veto powers to prevent him from corrupting the legislature. They also adopted annual legislative elections and expanded the size of legislatures to prevent long-sitting legislators from being corrupted by magistrates.²⁴ After making these changes, Wood contends, “Americans in 1776 were hopeful and confident that their representative assemblies, now definitely free from magisterial contamination, could be fair and suitable embodiments of the people-at-large.”²⁵

Soon, however, the citizenry, especially political conservatives, lost faith in legislative action as the embodiment of popular will. As legislatures seemed to divide into factions and enacted laws endangering the security of private property, some observers increasingly perceived the legislature as the primary threat to liberty. Viewing the legislature as an adversary, Americans found a new appreciation of voting. Only through deliberate, sometimes punitive use of elections could the citizenry protect itself from a hostile legislature. “Everywhere,” Wood writes, “politicians and writers put more and more emphasis on the explicitness of consent: on equal electoral districts, on a broadened suffrage, on residence requirements for both the elected and the electors, on the strict accountability of representatives to the local electorate, indeed, on the closest possible ties between members and their particular constituents.”²⁶

Whereas in 1776 the people participated in government through the “democratical” branch of government, the lower house of the legislature, by the late 1770s and early 1780s they had rejected this traditional notion of representation. Instead, they effectively withdrew from government. Sovereignty came to rest in the people at large, not in the legislature, and “the only criterion of representation left was election.” When election became “the sole basis and measure of ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• 1: Nearly in the Old Channel?: English Constitutionalism, Imperial Crisis, and State Formation in Revolutionary America
• 2: The Present Business of All America: Constitution Making in the Revolutionary States
• 3: The Compact of the Whole People and the Limitation of All Legislative and Executive Power: Declarations of Rights and Constitutions
• 4: Represented According to the True Intent and Meaning Thereof: Political Representation
• 5: The Greatest Right of Freemen: The Suffrage
• 6: By Their United Influence Become Dangerous: The Separation of Powers
• 7: Power Should Be a Check to Power: Bicameralism and the Reinvention of Mixed Government
• Conclusion: The Mechanical Polity
• Notes
• Bibliography
• Index