The Legislative Bias of Early State Constitutions

The transition to republican constitutionalism varied from colony to colony. Connecticut and Rhode Island, for example, clung to their original charters with only minor modifications. Elsewhere new ruling documents were adopted.

The constitutions of the first phase embodied a "Whig-republican" ideology that blended republicanism, popular sovereignty, distrust of executive authority, and communitarianism through social contract theory. The documents were based on the theory of actual representation, although they abetted political inequality as we would understand it today, because they excluded women and blacks from political participation and required a modest freehold of males to vote and hold office. These organic laws placed great authority in the legislative branch to determine community goals. In this corporatist scheme of republicanism, the commonwealth took precedence over the individual, but the new state constitutions also drew on natural law principles to limit the states' coercive powers through formal bills of rights.

The Whig-republican tradition flourished especially in New England. It included such constitutional devices as small electoral districts, short tenure in office, many elective offices, and constituent instruction of representatives. The documents that contained these provisions were, like the soon-to-be created federal Constitution, of modest length; they were charters of broadly sketched principles the implications of which subsequent generations would work out.

The second phase of early state constitution making somewhat limited this Whig- republican tradition by distinguishing the people from their representatives. The American predilection for written constitutions that blended popular sovereignty and fundamental law devalued legislation: state constitutions were "higher" laws and legislation was by definition limited in scope. The controlling idea was that the people were set apart from their representatives essentially to keep a watch over them. Once again, Jefferson's hostility toward the Virginia Constitution of 1776 was based on the fear that legislators would overreach themselves. "If the present assembly pass any act," Jefferson wrote in 1785, "and declare it shall be irrevocable by subsequent assemblies, the declaration is merely void, and the act repealable, as other acts are." ⁴¹ By the mid-1780s, a written constitution created by a constituent convention and the doctrine of separation of powers emerged as the two most important restraints on the excesses of legislative authority.

Date: 2015-01-29; view: 752