The First State Constitutions

The founding fathers of the American states originated the modern written constitution. They have not received, as Peter Onuf has argued, the credit they deserve for the boldness of their actions in putting theory into practice. ³⁵ In a world dominated by

-60-

monarchy and aristocracy, where the traditional authority of government was taken for granted, there were few precedents for the Americans' central claim that they were entitled to make their own governments. The states, then, as today, were great laboratories of constitutional experimentation, and their early organic laws reconciled the revolutionary idea of popular sovereignty with a commitment to a rule of law under limited, constitutional government. The founders of the new states responded to their novel situation by empowering special conventions to draft written constitutions: this was their most important contribution to constitutional theory and practice. Yet the earliest of these constitutions also reflected the ongoing confusion in American life between what was constitutional and what was legal.

Phases of Early State Constitutional Development

Early state constitutional development passed through two distinct phases. The first began in 1775. Provincial legislatures, responding to calls from the Continental Congress, drafted and then ratified constitutions in the same way they drafted and passed bills. The legislators, in framing these first organic laws, believed that they constituted the "full and free representation of the people." ³⁶ The people did not ratify their labors; the distinction between fundamental and statutory law remained blurred. There can be no doubt, however, that the drafters of these first state organic laws believed that popular will was the basis of sovereignty. The first North Carolina constitution, for example, stated that the legislature that drafted it was "chosen and assembled . . . for the express purpose of framing a Constitution." ³⁷

A second phase came a few years later, and it involved a clear distinction between statute and constitution making. Astute contemporaries realized that state governments that operated under the earliest constitutions (organic laws neither drafted by constituent conventions nor ratified by the people) were not fully compatible with the idea of popular sovereignty and limited government. Thomas Jefferson, for example, complained in his Notes on Virginia ( 1781) that under the Virginia Constitution of 1776, "the ordinary legislature may alter the constitution itself." ³⁸ While the legislature represented the people of a state, that did not mean that the legislators could act for the people in a constituent capacity, even when authorized to do so by a special vote. The inhabitants of Beverly in Essex County, Massachusetts voted against the 1779 constitution proposed for their state because "some other Body, distinct from the General Court, [should] be delegated from among the People for the sole & entire purpose of forming a Bill of Rights & Constitution of Government." ³⁹

Americans met this challenge by creating constituent constitutional conventions. This device was chosen "for a specific purpose, not to govern, but to set up institutions of government." ⁴⁰ Americans were determined to separate the extraordinary act of creating a government from the ordinary act of legislating. The constituent convention of popularly elected members established a distinct source for fundamental, constitutional law, and provided the theoretical basis for separation of powers and judicial review in a republican government where all power flowed from the people.

Massachusetts was the first new state to use successfully the convention technique. Many of that state's town meetings, fearful that they were not sufficiently represented in the legislature, had blocked ratification of the 1778 constitution. They then successfully demanded adoption of the convention procedure, and the result was the constitu

-61-

tion of 1780, the world's oldest written fundamental frame of government. Political necessity in early Massachusetts influenced constitutional decision making, a pattern that subsequent generations would repeat again and again.

Date: 2015-01-29; view: 756