IDEA OF UNION

by

Paul Ferrino, MA Thesis April, 2011 SCSU

CHAPTER 1INTRODUCTION

It is a general maxim in every government, there must exist, somewhere, a supreme, sovereign, absolute and uncontrollable power; but this power resides always in the body of the people; and it never was, or can be delegated to one man, or a few.1

The colonial law making body of Massachusetts Bay was known as the General Court. A modern day person would see or hear the word Court and automatically refer to the judicial system. This seemingly insignificant fact is an enormous reason why events in history can become distorted. Human beings continually look into the past using eyes of the present. Historians call this phenomenon present-ism. Present day cosmology inserting itself into the cosmology of the time under investigation is present-ismand it distorts historical evidence. This essay requires that the reader be vigilant in this way. This essay will illuminate the dynamics that occurred from the revolutionary democratic impulse at the provincial, or state, level to the adoption of a continental, or nationalist, vision of Americas future. The revolutionary impulse was seen in the first state constitutions after 1776. This preference for local political control was also seen in the 1777 drafting, and eventual ratification in 1781, of the Articles of Confederation and Perpetual Union. The nationalist vision of Americas future was clearly seen in the 1780 Massachusetts Constitution. The 1787 Constitution of the United States continued this American Archives. Proclamation by the General Court. Accessed March 2, 2011. http://www.lincoln.lib.niu.edu/
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continental view of American society. These facts indicate that there was little doubt that such a paradigm shift occurred. However, there has been virtually no scholarship undertaken that reveals such a shift in the period secondary source literature. This is primarily due to the magnitude of scholarship produced concerning the primary historical period under investigationthe period between American Independence and the ratification and implementation of the American Constitutionapproximately 1775-1790. An appreciation that this contentious political discourse occurred largely during a mortal military battle with the worlds hegemonic power makes the founding of the American Republic a compelling saga. As the vast majority of the Atlantic North American colonists were loyal subjects of the British constitutional system, it is important to understand how the colonists who saw themselves as Englishmen came to see themselves as Americans. It is perhaps crucially important to see how the Americans decided on the future course of their civilization. The story of an American societal shoot gestated in British constitutionalism and breaking through the North Atlantic soil nourished with Anglo-American Whiggery is almost irresistible to tell. One possible reason for the paucity of scholarship delineating this shift was the consistent stance of the American aristocratsboth revolutionary and conservative. The drawn line of the vision of American civilization was apparent from at least the First Continental Congress in 1774. Those leading men favoring a loose confederation of states and those advocating a more energetic central government engaged in political battle well before the fulcrum of July 4, 1776 was established. And both camps were formidable in their powers of rhetoric, political tactics, and willingness to fight to the last.

Unfortunately, that story has not been consistently and clearly disseminated to either secondary school or college students. The result has been considerable confusion as to just what did occur at the crucial time of the American founding. In other words, the popular notion of the Articles of Confederations demise resting on the documents weaknesses is flawed in superficial interpretations of the periods dynamics. This confusion may lead to the publics uncritical acceptance of the expropriation of the symbolism of the nations framers. This kind of propaganda seems to be increasingly used by modern day political entrepreneurs in a decidedly a-historical fashion to the detriment of American civilization. One possible antidote to current internal threats to the American republic is to clearly explicate the political discourse that took place during the founding era of the United States of America. The thesis of this essay is that the founding era was not marked by the abandonment of a weak Articles of Confederation but that there was a gradual shift from a notion of hard won individual rights being upheld by local political control to the rights of individuals being most efficiently protected by greater central governmental control. This essay will provide a portal into the founding era of the United States. The primary documents used in this study are the 1776 Pennsylvania Constitution, the 1781 Articles of Confederation and Perpetual Union, the 1780 Massachusetts Constitution, and the 1787 Constitution of the United States. The four documents listed above will provide a persuasive demonstration thereby dispelling the popular notion of a monolithic cause of the period shift due to a weak Articles of Confederation. The Articles of Confederation and the 1776 Pennsylvania Constitution are documents that have much in common. For example, both enumerate political controls

that are very much local in nature. The Articles of Confederation kept sovereignty in each individual state and the 1776 Pennsylvania Constitution provided for the citizenry to be closely involved in its representation. Both kinds of local political control are understandable given the close proximity of both documents to the Revolutionary War with Great Britain. After the peace of 1783, and continuing to the ratification of the 1787 United States Constitution, there was less preoccupation with the evils of monarchy and central control and more awareness of the new nations place in the world of nations. This necessitated consideration of national as well as local concerns within the new North American republican experiment in individual freedom. The 1780 Massachusetts Constitution and the 1787 United States Constitution were also two documents that had much in common. The United States Constitution stipulated that sovereignty was in all of the people of all of the states and the Massachusetts Constitution shifted its representation away from local control by enumerating provisions for a House of Representatives and a Senate. Here was a clear continuum of peripheral control to more central controlall with the main goal of protecting individual liberties. Alan Gibson, in his recent book Interpreting the Founding: Guide to the Enduring Debates over the Origins and Foundations of the American Republic,2 provides this writer with several convenient categories useful in delineating and explicating the scholarship produced on this topic from the Progressive Era to the War on Terror Era. A listing of categories is reproduced3 as follows:
2

Alan Gibson, Interpreting the Founding: Guide to the Enduring Debates over the Origins and Foundations of the American Republic (Lawrence, KS: The University of Kansas Press, 2006).
3

Gibson, Interpreting the Founding, Contents page. 4

The Progressive Interpretation The Scottish Conversation The Tunnel History of Republicanism The Liberal Tradition The Multiple Traditions Approach

The Progressive Interpretation Perhaps the fitting place to begin is with Charles A. Beards 1913 book, An Economic Interpretation of the United States Constitution.4 Much was written prior to Beards bombshell, but his essay was the clear seminal beginning of recent modern founding historiography. The first example would be a view of Beards seminal work very much the starting point to a discussion of The Progressive Interpretation. This masterwork cleared the historical scholarship deck of an emphasis on political causality and argued persuasively that economic considerations or interests motivated the Framers of the Constitution. In particular, Beard chose to juxtapose the signers of the document produced at the Philadelphia Convention of 1787 with the personalty, or securities, that they held. The idea was to provide historical evidence that the Framers of the American Republic did not just act from their political perspective but were motivated as much from their economic interests. At the time, this new reconstruction, or reasoning, or interpretation, obliterated the previous paradigmatic emphasis on political determinism and it was indeed, a new groove. One might take Beard at his word when he writes that his work was entitled An rather than The which allows one to properly view his work as a starting point for future inquiry rather than as a target for aspiring scholarship. As an

Charles A. Beard., An Economic Interpretation of the Constitution of the United States (New York: The Free Press, 1986).

aside, one could wonder if Beard might have found more fruitful, and defensible, historical evidence if he also investigated and explicated the realty interests of the Framers rather than focusing solely on their personalty holdings. Beard was later challenged and essentially refuted by several revisionist historians, most notably by Forrest McDonald and Robert E. Brown.5 These scholars revealed inconsistencies in Beards methodology and conclusions. Beard was sandwiched by two other well-known progressive historians, Carl Becker6 and Vernon Parrington.7 Parrington in particular became associated with Beards thesis as being influenced by the tenor of their times and an undue emphasis on economic determinism. Parrington felt that Beards thesis helped him to uncover how the demos and the property owners were at opposite ends of the societal spectrum. Becker framed his questions about the Revolutionary period less polemically, and thus escaped the academic censorship of later generations.

The Scottish Conversation This school of thought pertaining to this essay is marked by reference to Scottish thinkers such as Francis Hutcheson, Adam Smith, David Hume, Thomas Reid and Adam Forrest McDonald, We the People: The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958). Robert E. Brown, Charles Beard and the Constitution: A Critical Analysis of An Economic Interpretation of the Constitution (Princeton: Princeton University Press, 1956).
5

Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York; Alfred A. Knopf, 1948). Vernon L. Parrington, Main Currents in American Thought (New York: Harcourt, Brace, 1954).

Ferguson. A very distinguished American philosopher, Morton White, with his Philosophy, the Federalist, and the Constitution,8 joins the formidable Douglass Adair and Garry Wills as major forces of this paradigm. Adair was a particularly incisive writer of the influence of Scottish ideology upon the Framers. His The Intellectual Origins of Jeffersonian Democracy: Republicanism, the Class Struggle, and the Virtuous Farmers,9 published posthumously and edited by Mark E. Yellin, was partially an answer to Beards essay, Some Economic Origins of Jeffersonian Democracy. Adair countered Beards economic emphasis on the framers motives with his own underscoring of the power of ideas in the nations founding. Perhaps Adairs most pertinent work to this essay is Fame and the Founding Fathers: Essays by Douglass Adair,10 edited by Trevor Colbourn. Adair seemed to believe that the Framers self-consciously realized their place in history and behaved accordingly and with alacrity. James Madison, often referred to as the Father of the Constitution, wrote his Notes of Debates in the Federal Convention of 1787,11 as a primary witness. Moreover, Madison wrote a preface to his Notes entitled A Sketch Never Finished Nor Applied that Adair believed underscored his view of the historical self-consciousness of the Framers.
8

Morton White, Philosophy, The Federalist, and the Constitution (New York: Oxford University Press, 1987).
9

Douglass Adair and Mark E. Yellin, ed., The Intellectual Origins of Jeffersonian Democracy: Republicanism, the Class Struggle, and the Virtuous Farmer (Lanham, MD: Lexington Books, 2000).
10

Trevor Colbourn, ed., Fame and the Founding Fathers: Essays by Douglass Adair Indianapolis: Liberty Fund, 1998).
11

James Madison, Notes of Debates in the Federal Convention of 1787 (Athens, OH: Ohio University Press, 1966).

Finally, Adair wrote of the influence of David Hume on Madisons legendary Federalist No. 10. Morton White agreed with Adair concerning the importance of the influence of David Hume and John Locke on the American founding intelligentsia. White, in a dense explication, thoroughly discussed the combined influence of Lockean liberalism and Humes empiricist political thought on the thinking of the Framers of the American Republic. Writing as a philosopher and intellectual historian, White argued that he saw little philosophical difference between the seminal documents of the 1776 Declaration of Independence and the 1787 United States Constitution. He concluded that both documents upheld the notions of individual liberties and civic virtue. Given that the written works of the Framers were political and not purely philosophical documents, White needed to rely upon his analysis of The Federalist Papers12 to make his points. Although Whites philosophical explication, or accompaniment, of The Federalist Papers was almost an anti-climax, his work helps one understand what transpired just before a bit better. Garry Wills assisted the foundational understanding of the period by detailing the changes the Continental Congress made to the original draft of Americas founding document. Garry Wills, in Inventing America: Jeffersons Declaration of Independence,13 transposed the thought of Frances Hutcheson with John Locke on Thomas Jeffersons original drafting of the 1776 Declaration of Independence. According to Wills, Jeffersons notion of independence not only wished to separate America from the King,
12

Alexander Hamilton, John Jay and James Madison with Robert Scigliano, ed., The Federalist (New York: The Modern Library, 2000). 13 Garry Wills, Inventing America: Jeffersons Declaration of Independence (New York: Doubleday, 1978).

but also to separate the Americans from the British. In a very real sense, Wills juxtaposed his book with that of the Locke of Carl Beckers Declaration of Independence by emphasizing Hutcheson with Hume, Reid, and Adam Smith. This is valuable because Wills drew a clear connection to the Scottish Conversation as mentioned above. Wills, like Adair, believed that the Framers were mostly college trained men who were grounded in much the same texts. Wills educates one anew to the sensitivity of Jeffersons thought and to those who authored the texts of his formative years. The Tunnel History of Republicanism This paradigm probably has the most star-studded roster of all these categories. Scholars such as J.G.A. Pocock, Bernard Bailyn, and Gordon Wood emphasized the importance of classical republicanism in their work. In his The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition,14 Pocock postulated that the American founding was really the last gasp of Machiavellian republicanism rather than the birth of Lockean liberalism. This Machiavellian moment, or the institutionalization of civic virtue, was presented as a kind of definition of the political life which is the end of man. Bernard Bailyn prefaced Pococks book with perhaps the seminal work of this republican paradigm. Bailyns The Ideological Origins of the American Revolution15 began with his collection of revolutionary pamphlets that suggested a readily identifiable thread of thought in the American political mind of the age and time. Clearly, the Framers of the
14

J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 1975).

15

Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: The Belknap Press of Harvard University Press, 1967).

new nation were the intellectual locus of American society having supplanted the intellectual force of the Protestant clergy. Bailyn showed how colonial thought prepared the Americans to respond to the discourse between themselves and the Empire after 1763. Astoundingly erudite in matters of government, these men solved the problem of their timehow to create a new nation with particular attention to the health of future generations of Americans. Recalling John Adams famous quotation, this radical transformation took place in the minds of the people. Hence the book title, The Ideological Origins of the American Revolution. Bailyns underscoring of the English commonwealth tradition influencing the founding echoed Caroline Robbins 1959 work, The Eighteenth Century Commonweatlthman.16 Bailyns breakthrough work undoubtedly influenced the important works of historian Gordon Wood. Gordon Wood built upon this paradigm with his masterwork, The Creation of the American Republic, 1776-1787.17 Wood was keen to underscore the importance of the democratic impulse released by the Revolution. The first part of Creation contains his explication of North Atlantic Whig ideas. Bailyn and Pocock were influences in that the republic needed to be populated by a virtuous people responsible enough to choose good representatives for government. Part Two emphasized the republican nature of the Revolution as expressed in the first state constitutions. Wood asserted that the people ultimately choose mixed government that is preferable to a government too close to the
16

Caroline Robbins, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thought from the Restoration of Charles II until the War with the Thirteen Colonies (New York: Atheneum, 1968). Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill, NC: The University of North Carolina Press, 1969).

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people. Parts Four and Five describe the critical period as a decline in civic virtue necessitating the Whig solution of a return of aristocratic authority enshrined in the Constitution. In The Radicalism of the American Revolution,18 Wood marveled at the near complete break made by the former colonists from Old World societal deference psychology. This social revolution was the doorway through which Americans became the first moderns who pioneered the mass ambitious individual acquisition drive. The old values of kinship, hierarchy, and deference to ones betters bit the dust of time. The Liberal Tradition Louis Hartz was the mad bomber of the liberal tradition. His 1955 book, The Liberal Tradition of America,19 was ground breaking in its juxtaposition of European and American political traditions. Hartzs aim was to emphatically reveal how the lack of a feudal past, versus that of Europe, characterized the North American Atlantic experience. In his concept of a liberal society, there is only a dominant paradigm of Lockean liberalism that can explain the American founding and the subsequent devotion to property rights and individual acquisition. Unlike most historiography, the books language was riveting revealing a possible strategy of shock and awe designed to effectively counter the Progressive Interpretation arguments of Beard and Parrington. In the 1992 collection of her essays, Liberalism and Republicanism in the Historical Imagination,20 Joyce Appleby continued to counter the revisionist
18

Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage Books, 1993). Louis Hartz, The Liberal Tradition in America (New York: Harcourt, Brace & World, Inc., 1955).

19

20

Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge, MA: Harvard University Press, 1992).

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Republicanism paradigm populated by Bailyn, Wood, and Pocock. Appleby insisted that the United States was born liberal albeit with republican proclivities. She also took to task the revisionists stance that republicanism was the determinative paradigm of the American founding. The choices made by the Framers clearly belied a pluralistic paradigmatic influencechief among them the importance of free political institutions and individual liberties. John Patrick Diggins, in the 1985 book, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism,21 also conceded a pluralistic paradigmatic influence on the founding era. He agreed with Bernard Bailyns reliance on the influence of Protestantism but disagreed with J.G.A. Pococks thesis of Machiavellian republicanism. Diggins believed that American virtue was a myth at least insofar as how it actually permeated American life and culture. He asserted that the Framers of the Constitution realized that the polis had little public virtue and set about designing a system of government that protected the people from themselves. Isaac Kramnick continued the liberal tradition with more of an emphasis on paradigmatic pluralism. Isaac Kramnick, in a masterly article entitled The Great National Discussion, The Discourse of Politics in 1787,22 posited that, unlike J.G.A. Pocock, there was not one paradigm of discourse during the American founding but at least three republicanism, liberalism, and Protestantism. He convincingly outlined how this cacophony of paradigms easily coexisted during the period under investigation. This
21

John P. Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism (New York: Basic Books, Inc., 1984).

Isaac Kramnick, The Great National Discussion: The Discourse of Politics in 1787. William and Mary Quarterly 45 (1988): 3-32.
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thesis is significant because the American founding experienced paradigm pluralism underlined by the fact that both winners and losers in the political debates lived on, sans guillotine, to contribute to their present and into the collective future. The Multiple Traditions Approach Three historians that may best embody the multiple traditions paradigm are Lance Banning, James T. Kloppenberg, and Michael Lienesch. All three have a Rodney King-ish cant we all just get along aspect to their historiography that one may find superficially appealing. One might say superficially because one might rather prefer the solid intellectual stand of a John Paul Diggins book, the soft serenade of an Edmund Morgan essay or the blindingly clear explication of a Merrill Jensen article. Diggins, Morgan, and Jensen are three distinguished historians working in this field today. James T. Kloppenberg, although a relative newcomer, has produced some impressive scholarship. Kloppenberg, in The Virtues of Liberalism,23 defended liberalism while also showing how democratic tendencies were nurtured by the Framers in their political ruminations. In this collection of essays, Kloppenberg provided the reader with a good introduction into the debate between the republican and the liberalist historians. Kloppenberg rightly maintained that a working liberalism required a healthy measure of civic virtue to bolster its foundations. Lance Banning continued along with this academic view.

23

Kloppenberg, James T., The Virtues of Liberalism (New York: Oxford University Press, 1998).

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Banning, in The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic,24 refused to take sides on the classical republicanismliberalism dichotomy and instead intimates that civic humanism and liberalism are twins. This characterization is pertinent because the two children are friendly thereby constituting a viable conceptual framework. Banning used the debate among period historians as to whether or not James Madisons thought was inconsistent during the founding era. Rather than asserting that Madison was pro-Hamilton during the late 1780s and then proJefferson in the late 1790s, Banning demonstrated that Madison was inherently republican, akin to Jefferson, and that Hamilton was monarchist at heart. Banning revealed a truer Madison who believed in both a nationalist vision of America with the conviction that individual states should decide on matters of local control that did not conflict with national issues. Michael Lienesch furthered this multiple traditions approach with his take on the sacred fire of liberty of Madison-ian thought. Lienesch, in New Order of the Ages: Time, the Constitution, and the Making of Modern American Political Thought,25 makes clear the argument that liberalism and republicanism, classicalism and modernism, are indeed present and operative during the founding era of the United States. Lienesch wrote about how the evangelical Protestant thought of the colonial era combined with the rationalist thought of the Enlightenment era could result in the individual pursuit of wealth and still retain a pragmatic element of the importance of the public good. Lienesch reincarnated Pococks Florentine imagery while Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca: Cornell University Press, 1995).
24

Michael Lienesch, New Order of the Ages: Time, the Constitution and the Making of Modern American Political Thought (New Jersey: Princeton University Press, 1988).
25

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acknowledging the likelihood of the primacy of Lockean liberalism. In a sense, there is something in this school for everyone. Several other scholars need to be mentioned here. Their insightful writings help to understand the dynamics of the period under investigation. These writers are Lee Ward, Akhil Amar, and Cecelia Kenyon. Others could be mentioned but space dictates otherwise. Lee Ward, in his 2004 The Politics of Liberty in England and Revolutionary America,26 sets the historical context of the transplantation of English political theory and practice to the North American colonies. This context is essential to embarking upon a proper understanding of what happened before the American War of Independence to the first state constitutions to the Articles of Confederation and Perpetual Union and ending in the United States Constitution. The journey from divine rights to natural rights to individual rights as vigorously championed by American enlightenment elites is only understood when properly aware of the discourse among Filmer, Hobbes, Locke, Hume, Bolingbroke and Algernon Sidney, et al. This theoretical political discourse was studied during the formative years of the Framers of the American constitutional system. This system, enshrined in The 1787 United States Constitution,27 was beautifully explicated in Akhil Reed Amars 2005 Americas Constitution: A Biography.28 Amars intent was to possibly awaken modern Lee Ward, The Politics of Liberty in England and Revolutionary America (Cambridge: Cambridge University Press, 2004).
26

Primary Documents in American History. 1787 United States Constitution. Accessed February 19, 2008. http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html
27

28

Akil R. Amar, Americas Constitution: A Biography (New York: Random House, 2005).

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America to its venerable fundamental law, a sort of a re-acquaintance with an elderly ancestor. Given that the Framers of the Constitution intended the document to be adapted to changes in national life, albeit carefully and slowly, logic demanded that each generation began to fulfill its civic duty by first understanding the law of the land. Cecelia Kenyon, over the course of a long career, wrote brilliantly about the ideology of the era that produced Americas Constitution. In Men of Little Faith: Selected Writings of Cecelia Kenyon,29 Stanley Elkins, Eric McKitrick and Leo Weinstein presented a coherent and convenient compilation of important articles written by Professor Kenyon. However, Ms. Kenyon wrote a chapter pertinent to this study, entitled Constitutionalism in Revolutionary America, that appeared in the 1979 Constitutionalism, Nomos XX.30 This writing uses the Virginia Constitution of 1776, the 1776 Pennsylvania Constitution, and the 1780 Massachusetts Constitution as prime examples of how the newly formed states began their experiment in constitutional republicanism. Kenyon maintained that these first state constitutions provided invaluable experience to the political elites who hammered out the enduring fundamental law document of 1787. Kenyons insights are valuable as secondary sources in the writing of this essay. The literature reviewed above has served as a lamp of experience to this author in preparing this essay. The content of the several chapters of this essay can be distilled into the following graphic: Cecelia Kenyon and Stanley Elkins, Eric McKitrick and Leo Weinstein, eds., Men of Little Faith: Selected Writings of Cecelia Kenyon (Amherst: University of Massachusetts Press, 2002).
29

J. Roland Pennock and John W. Chapman, eds., Constitutionalism, Nomos XX (New York: New York University Press, 1979): 84-121.
30

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Pennsylvania (1776)

Massachusetts (1780)

Articles of Confederation (1781)

United States Constitution (1787)

PennsylvaniaThe states history began with William Penn receiving a proprietorship from King George II. The 1681 First Frame of Government was the initial fundamental

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law document of the colony. Succeeding documents to the 1701 Charter to the first state constitutions are evidence of the continuity of political values identifiable to Pennsylvania. The institutionalization of basic rights and liberty protection stems from Penns belief that freedom of individual convictions was essential. Penn provided for individual rights via property and liberty language embedded within Pennsylvania covenants with the freemen of the colony. Quaker theology was combined with natural rights and natural law. The 1776 Pennsylvania Constitution came in to being 75 years later. This documents most salient features were a unicameral legislature, a diluted executive, a non-independent judiciary, and a council of censors designed to be a legislative watch dog for the people. The 1776 Constitution was unique in that it was crafted and ratified via the most democratic, or closest to the people, manner of the first state constitutions. Those responsible for its implementation meant for most Pennsylvania citizens to exercise their civic duty by voting and being vigilant over their elected representatives. One way this was ensured was by the removal of the property right qualification for voting. This was replaced by the more democratic requirement of paying taxes. Pennsylvania was the first state constitution that most closely paralleled the values inherent in the Articles of Confederation. MassachusettsAs the Pennsylvania colony was one of the newest to appear in colonial America, the Massachusetts colony was one of the oldest to be established on the North American Atlantic coast. And, the 1776 Constitution of Pennsylvania was among the first of the revolutionary state constitutions, while Massachusetts came much later in

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1780. Moreover, the constitutional history of Massachusetts differs from that of Pennsylvania in that the fundamental law evolution imbeds itself in a voluntary association of individuals. In fact, the text of the 1780 Massachusetts Constitution reads, 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. This significant language can be traced back to the Puritan beginnings of 1620 at Plymouth Rock. The Plymouth Colony, led by John Carver and William Bradford, began shakily but soon stabilized and flourished. The government in Boston, called the General Court, was a private company that included in its jurisdiction Boston and the expanding frontier settlements. This colonial government was also essentially a Puritan theocracy as evidenced by the vast political influence of individuals such as John Cotton. This nascent state was soberly viewed by the populace as an agency of Gods will on earth. The people of the Massachusetts Bay Colony emigrated from England in large numbers attracted by the freedom to be Puritans without persecution. This immigration resulted in the frontier expanding to the North shore, the South shore, and to the Western interior. In addition, the vast majority of these settlers were Puritansthere was a real homogeneity of religious belief in the beginnings of colonial Massachusetts. The Puritan settlers of Massachusetts organized socially in towns, or villages, where the center of life was on the common at the meetinghouse. Here is where the pastor governed over long Sabbath services. In addition, the meetinghouse also served as the site for the New England town meeting. Today the town meeting has come to

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symbolize the beginnings of democracy in America, when in actual fact the town meeting was used to enforce social and religious conformity. Evidence of this is the fact that only propertied male church members were allowed to participate in town meetings. This nascent social compact is apparent. This history underscores the significant homogeneity of the people of Massachusetts. Congregationalism permeated society with little or no competing religions. Unlike the religious toleration of colonial Pennsylvania, colonial Massachusetts was absolutely of Puritan descent. This is important to understand the text of the Preamble of the 1780 Massachusetts Constitution which in part states, It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them. The main characteristics of this document are a bicameral legislature, a strong executive, and an independent judiciary. John Adams, as principal author of the 1780 Massachusetts Constitution, made sure that the doctrine of the separation of powers was manifest in the structure of the document. In this way, the legislative, executive, and judicial branches functioned separately and as a check on power of the others. The 1780 Massachusetts Constitution, still in force today, differs from the 1776 Pennsylvania Constitution in many ways. The most important way is that Pennsylvanians believed then that they themselves could best protect themselves from those they themselves had consented to be governed by, and those in Massachusetts believed that they could not really be trusted to protect themselves from their elected representativesthey relied more upon the mechanics of the governmental system to

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provide the best balance of power to protect their individual liberties, which is the end, or ultimate purpose, of republican government. The Articles of Confederation and Perpetual Unionthis document established a treaty between the several states that had the form of a national government. Each state had a vote regardless of population and any changes to the document had to be ratified by all of the states. Its primary characteristics reflected the constitutionalism of many of the first state constitutions. These characteristics included: a unicameral legislature, no real executive, and no judiciary. The real power under this system was found in the individual state legislatures. There were men of influence in the new nation that believed that the revolutionary war goals were the creation of a system of government that was close to the people. Sovereignty was best located in the people of each individual state. This is where the people lived and where their interests were best overseen and protected. Representation was best located in the state legislatures where local interests could be best looked after. It was therefore natural to this organization of states to include the state legislatures as the most powerful element. It is important to remember that this treaty of friendship between the several states reflected the mentality of the oppressed fighting a war for liberty from the oppressors. The periphery, the American colonists, was fighting for independence from the central government, the British Parliament and monarchy. Distrust of centralized power31 was widespread. The vision of those who believed in peripheral political control triumphed over those who, while eschewing
31

United States Constitution Online. The Articles of Confederation. Accessed March 7, 2011. http://www.usconstitution.net/articles.html Article IIEach state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

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monarchy for republicanism, thought that stronger national government was essential to Americas future. The United States Constitutionthis document established the first system of national government in the United Statesone that essentially still exists today. Its primary characteristics are different than that of the Articles of Confederation. These characteristics are a bicameral legislature, a national executive, and a national judiciary. Unlike the Articles of Confederation where the real power could be found in the state legislatures, the real power in the United States Constitution was shared between the national government and the states, called federalism. It is important to note that the power of the individual state legislatures on a national scale was all but eliminated. One could say that the experience of the former colonists during the 1780s, including a frank and contentious debate, resulted in the creation of a constitutional convention which produced the current national system. It is important to note that three-fourths of the states, through special constitutional conventions and not the state legislatures, had to ratify the new system for it to go into effect and supplant the Articles of Confederation. The vision of men who believed that a more energetic central government32 would better ensure the peoples liberties than a more provincial system eventually triumphed. Given that the United States Constitution is still operational is testimony to the correctness of that vision and the good historical fortune of all Americans. There was a fractious debate between what might be called the Federalists, or those who sought to amend the Articles of Confederation with pragmatic changes, and the Nationalists, or those whose goal was to supplant the Articles with a new constitution via United States Constitution Online. The Articles of Confederation. Article.IVSection.4 The United States shall guarantee to every State in this Union a Republican Form of Government, . . .
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convention. In this debate is part of the proof of this essays thesisthat the United States Constitution better protects the individual rights of its citizens than did the Articles of Confederation with the individual state legislatures. The issue was not strength or weakness as is commonly thought and taught, but about the location of sovereignty and representation to best protect the people, from within as well as from without.

CHAPTER 2PENNSYLVANIA

WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has

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bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness . . . We, the representatives of the freemen of Pennsylvania, . . . do, by virtue of the authority vested in use by our constituents, ordain, declare, and establish, the following Declaration of Rights and Frame of Government, to be the CONSTITUTION of this commonwealth . . .33 Pennsylvania was arguably the center of the British American colonies in the latter part of the 18th century.34 More specifically, the city of Philadelphia could have claimed to be the grand dame of eastern American cosmopolitan centers. In addition, the revolutionary constitutional history of Pennsylvania can legitimately claim to have been the crucible through which the 1787American Constitution was forged. The story of how the proprietary colony of Pennsylvania evolved to the state of Pennsylvania and how the struggle to institutionalize power interests can be seen as laying bare the essence of how to structure a far-flung republic on the North Atlantic coast during Enlightenment times. It is important to note that this was the first time in the history of man that a republic was created by the people themselves. Previously, political power was granted, or bestowed, by some intermediary such as a monarchy, an existing hereditary aristocracy, or prevalent religious authorities. One must insert themselves into the cosmological moment of these times to begin to see in any way clearly and delineate meanings with any perspicuity. Some Pennsylvanians originally believed in the classical republican model of the best government being closest to the people.35 Their chance to seize power during the Pennsylvania Constitution. Constitution of the Commonwealth of Pennsylvania 1776. Accessed August 9, 2008. http://www.duq.edu/law/pa-constitutions/1776.cfm
33

Susan Mackiewicz, Philadelphia Flourishing: The Material World of Philadelphians, 1682-1760 (PhD diss., University of Delaware, 1988). 35 Baron de Montesquieu, Spirit of Laws (New York: P. F. Collier & Son, 1900). Note that Aristotle postulated that the city-state, or polis, requires goodness as a goal of the
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tumult of the Independence times was successful as the Continental Congress, meeting in Philadelphia, was committed to declaring independence in 1776. Those more aristocratic conservatives, who were sympathetic to independence but wanted to go at a slower pace, were effectively blocked. Their power was stripped by those with less property and prestige. Timing and wartime necessity played a large part in the Pennsylvania Radical Whigs finally taking power in Pennsylvania. It is important to remember that Boston (Massachusetts) was probably the epicenter of independence zeal and the conservative Philadelphians (Pennsylvania) were clearly less zealous to make the final break with the British than the Bostonians. A good example is to compare John and Sam Adams of Massachusetts with John Dickinson of Pennsylvania. All were patriots to the American cause but the Pennsylvanian was more cautious than the Bostonians. Nonetheless, the text of the preamble of Pennsylvanias first constitution of 1776, . . . the people have a right, by common consent to change it (their government), and take such measures as to them may appear necessary to promote their safety and happiness. It is necessary to now trace some of the history leading up to this watershed moment in Pennsylvania history. This can be summarized efficiently by utilizing the following chronological subdivisions: 1682-1760, 1761-1776, and 1777-1790. 1682-1760 The constitutional history of Pennsylvania during the seventeenth and eighteenth centuries is perhaps the most interesting of all of the former English colonies. This history began with the 1681 charter granted to William Penn by King George II and the community within a prescribed geographical area governed by a constitution and politicians. 25

succeeding fundamental law documentsthe 1681 First Frame of Government, the 1682 Great Law, the 1683 Second Frame of Government, the 1696 Markhams Frame of Government, the 1701 Charter of Privileges, the 1776 Pennsylvania Constitution, and the 1790 Pennsylvania Constitution. These documents provide an identifiable thread of continuity, or perhaps of development, that allow one to see shifts in fundamental law paradigms. In using Pennsylvania as a kind of test case (along with Massachusetts in a following chapter), the historical evidence will show that overall fundamental law development in the former colonies evolved toward a stronger central and national government that protected individual or minority rights better than did local governments. Moreover, the struggles and viewpoints of important historical characters give additional insight into the remarkable shift in fundamental law values in the 1780s. This shift in how basic rights and liberty protection should be institutionalized began in Pennsylvania with Penns 1681 First Frame of Government. A member of the Society of Friends, Penn believed in that every man should have the freedom of his convictions.36 Therefore, Penn included in his first compact for all free Pennsylvanians provisions for basic individual rights along the lines of liberty and property justified by the integration of natural rights, natural law, and Quaker theology. This first proprietary government set the tone for Pennsylvania fundamental law from the beginning until the formation of the 1790 Pennsylvania Constitution.

Gary B. Nash, Quakers and Politics: Pennsylvania, 1681-1726 (Princeton: Princeton University Press, 1968): 11-20. William R. Shepherd, History of Proprietary Government in Pennsylvania (PhD diss., Columbia College, 1896).
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After the Assembly passed the improved 1682 Second Frame of Government, the 1688 civil war in England interrupted the Penn proprietary government. Penns cousin, William Markham, having been appointed Governor, added the 1696 Third Frame of Government. The final colonial compact essentially ended proprietary government in Pennsylvania. This was the 1701 Charter of Privileges, also known as the Fourth Frame of Government.37 Tracing the constitutional development of Pennsylvania is almost schizophrenic on one hand, the conservative Quaker reign of power in the Assembly seems to embody the aristocratic status quo. Upon on the other, the triumphant Radicals of 1776 seem to scream an almost Jacobin reaction to the conservatives who had governed Pennsylvania politics for almost 100 years. Looking beneath the surface, one can see a continuity in Pennsylvania politics stretching from the beginnings of the proprietorship to the 1776 Constitution. There are consistent characteristics including freedom of conscience, Quaker egalitarianism and religious toleration, representation by consent of the governed, relatively rapid rotation in office, a weak executive, a dependant judiciary, and legislative supremacy. William Penn was the man who controlled the granting of real estate to the proprietors but allowed more common folk to acquire property and enjoy the same rights of property and religious choice reserved for the wealthy of England and mainland Europe. If one looks at early Pennsylvania as a sort of Quaker theocracy, one can observe

Sydney G. Fisher, Pennsylvania: Colony and Commonwealth (Philadelphia: Henry T. Coates and Company, 1896): 29-33.
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a further paradox of encouraging, and achieving, a heterogeneous community while pretending that only Quaker institutions be held inviolate in the Assembly.38 The expression of the Reformation in Quakerism can be seen through the Quaker belief in the inner light. This thought framework allowed each individual member of the Friends to cultivate a personal vision of salvation. No intermediaries, just a man, or woman, and God. This inner light also allowed egalitarian equality. This means that, to the Friends, each person was equal in the eyes of God. In a sense, this meant that fundamental Quakerism sensed a repudiation of all earthly authority, except as revealed by the inner light and the calling. How did this translate into worldly, or political authority? How did a spiritually level society, or community, fare in a political world? How did anything of political difficulty get done in a community of Friends without a seeming hierarchy?39 The answer is found in Quaker theology. The concept of correctness or being good is only measured by the individual Quaker living according to the Quaker perception of Scripture and having this piousness revealed in a successful calling. In other words, an individual was simply a Quaker first and then whatever he or she was called by God to do to glorify Him and the Friends. This is perhaps the closest a human society can get to a judgment free lifeof each other and H.M.J. Klein. The Church People in Colonial Pennsylvania. Pennsylvania History, IX (1942): 38. Klein wrote that The church people stood for authority in church life and conformity to established order.
38

Alan Tully, Forming American Politics (Baltimore: Johns Hopkins University Press, 1994): 77. In his chapter entitled, The Proving of Popular Power, Tully provides a lucid explication of how the Friends wove pacifism with the attainment of, and holding of, political power. In colonial Pennsylvania, not everyone viewed the colonys security concerns through the lens of Quaker pacifism. This was to be a recurring theme in Pennsylvania history. Deborah Gough, Pluralism, Politics, and Power Struggles: The Church of England in Colonial Philadelphia, 1695-1789 ( PhD diss., University of Pennsylvania, 1978): 25-72 and Nash, Quakers and Politics.
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those who do not share the theology of the Quakers. How this unusual egalitarianism translates into the practical world of politics is a bit tricky. Given that one is a Quaker first and foremost, then the next logical step would be the democratic reality of the Quaker meetinghouse. This could be described as a collective will with its genesis of individual equality. It is remarkable how closely this picture of the Quaker community dovetails with the European Enlightenment idea of the social contractanother vitally important concept to understanding this thesis. Once an individual calling had the effect of creating earthly wealth, the question then arises as what one does with the property? Interestingly, the wealth acquisition of the Quakers, in Philadelphia, and the Puritans, in Boston, was generally used in a divergent manner. The Philadelphia Quakers seemed to live relatively high, while their counterparts in Boston seemed to lead lower key lifestyles.40 Pennsylvanias rise as a proprietary colony can probably be explained by these words of William Penn, Any government is free to the people under it (whatever be the frame) where the laws rule, and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion.41 Although the colony was founded for the Friends, who immigrated to Pennsylvania in droves, others attracted to Penns egalitarianism came as well. It is important to note that the charter granted to William Penn was a proprietorship and not a royal colony as in Massachusetts. Penns charter was marked by the sovereignty of the British monarchy. It should be noted that Charles II did not James T. Lemon and Gary B. Nash. The Distribution of Wealth in Eighteenth Century America: A Century of Change in Chester County, Pennsylvania, 1693-1802. Journal of Social History 2 (1968): 1-24. 41 The Laws of Nature and Natures God. Frame of Government of Pennsylvania, April 25, 1682. Accessed April 2, 2011. http://www.lonang.com/exlibris/organic/1682fgp.htm
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meddle in Pennsylvania affairs. Even land allocation was done at the sole discretion of the Proprietor and not the King. Therefore, creation of all geopolitical entities, counties, cities, and towns, was at the pleasure of William Penn. Such power was wielded relatively lightly by Penn. Penn believed that the ends of government were to ensure happiness for the people and that it should terrify evil-doers and provide safe harbor for those not evil. Penn also believed that human nature was such that passions oftentimes overcame reason, necessitating a government where laws rule. The Proprietor may have been familiar with James Harringtons utopian vision.42 Penn knew that virtue and wisdom was important to the well being of the people. As a Quaker creating a colony primarily for Quakers, Penn obviously believed that the Friends would supply the government with ample virtue and Godly wisdom. Moreover, Penn wanted to secure the people from injustice from any source. Simply put, William Penn wanted to preserve individual liberties. While there were no enumerated bill of rights, the Quaker theology was clear in its toleration of others. Penn did not have to proceed in this way. He did not, for example, have to publicly post considered bills well before passage into law by the Pennsylvania Assembly. The summary point is that in early Pennsylvania history, individual liberties were not explicitly enumerated; the rights were guaranteed by the virtue and wisdom of Quaker government. Perhaps one could say that for all of the goodness of the Pennsylvania Assembly, this was an example of legislative supremacy. Another way to put this is to say that the Assembly decided on the definition of the rule of law, much as James Harrington, The Commonwealth of Oceana (1656). Penn clearly possessed a utopian vision of Quaker society in Pennsylvania. Harringtons novel of an ideal republic seems to match Penns sentiments.
42

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Parliament was to do after the French and Indian War. Therefore, whatever political culture developed in Pennsylvania is understandable from its Quaker beginnings and the effect of Quaker influence in the Assembly. These legislative protections were fragile as the 1688 military crisis in England led to a disruption in the Pennsylvania proprietary contract. The New York governor, William Fletcher, was granted military rule in Pennsylvania until William Penns contract was again honored several years later albeit by Penns nephew, William Markham, as Penn was now in England. Markham proceeded to hammer out a new frame of government that met with the disapproval of Penn and the king. William Penn returned to Pennsylvania in 1699 and began work on replacing the Markham frame of government with the 1701 Frame of Government. This constitution was notable for its emphasis on a unicameral legislature, thereby establishing this institution in the Pennsylvanias constitutional continuum. The 1701 Frame of Government was also significant because it furthered the written rights tradition of Pennsylvania fundamental law. The 1776 Pennsylvania Constitution came in to being 75 years later. That documents most salient features were a unicameral legislature, a diluted executive, a non-independent judiciary, and a council of censors designed to be a legislative watch dog for the people.43 1761-1776 In 1763, the western frontier of Pennsylvania was composed of the Scots-Irish and Germans. Both groups were primarily Presbyterian. After the successful defeat of the French in 1763, Native American land concessions were made by the British that were Theodore Thayer, Pennsylvania Politics and the Growth of Democracy: 1740-1776 (Harrisburg: Pennsylvania Historical and Museum Commission, 1953): 193-194.
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detrimental to the interests of these western folks. These settlers, who were not Quakers and definitely not pacifists, decided to defy Eastern authority and Quaker pacifism and take land back by force. This simple dynamic was defined frontiercosmopolitan relations. The Quaker-led Assembly was perceived as not helping their fellow Pennsylvania frontiersmen. The western settlers, primarily the Scots-Irish, came under attack from Native Americans. In Pontiacs Rebellion, the Pennsylvania frontier endured devastating attacks. The Scots-Irish achieved a political epiphany in response and began organizing with no small success. The distance in sentiments and geography between the Assembly, mostly comprised of Philadelphia Quakers and the proprietor-infiltrated Presbyterians, motivated the Scots-Irish to save their homesteads and perhaps save frontier Pennsylvania. Their momentum took a dark turn. A group of frontiersmen, known as the Paxton Boys, massacred a peaceful Native American tribe. The group then marched eastward and attacked and mutilated the Native Americans in their path. The group went as far as to attempt to march on Philadelphia with the intent to kill Native Americans living in the city. News of the impending attack reached the city and the attack by the Paxtons was thwarted by Pennsylvania militia outside of city limits. The vigilante group was persuaded to return to the frontier.44 The conservative elements in the Assembly immediately began to agitate for an abolishment of the proprietorship and a change to a royal governor. This was a clear sign of changing times in Pennsylvania. Opposition to this fundamental change in governance

44

Thayer, Pennsylvania Politics, 86-88.

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was about a possible encroachment by the Anglican Church and the concerns of those content with the status quo. The Quakers would not surrender power willingly. One prominent Philadelphian, John Dickinson, received information from England that Parliament was intending to implement a more stringent system of control over the colonies in North America. Dickinson was alarmed and sought to warn his fellow citizens. The Quaker party, along with Benjamin Franklin, believed that Parliament could be trusted and that imperial control was only talk. Many in Pennsylvania did not share this optimism. It was thought that if a royal governorship was enacted, then a near century of individual liberties and property rights end. The distrust of the colonists was warranted as 1764 saw the passage of the Quartering Act and in 1765, the Stamp Act. The Quakers and Franklin were proven wrong. John Dickinson was proven right. Dickinson wrote a series of famous tracts entitled, Letters from a Farmer in Pennsylvania.45 These propaganda sheets succinctly, and brilliantly, described the dangers of the new Imperial policy to American liberties. One should remember that John Dickinson, with wealth and an English education, typified the moderate Pennsylvania Whig position of caution on the issue of independence. Pennsylvanians knew that if a revolution was to come, it would be far simpler to change the proprietors than to oust a royal governor. There was a motion put forward in the Assembly to change to a royal governorship. However, the motion was allowed to lapse and perish. In fact, the Assembly began to sympathize with popular sentiment and instructed Benjamin Franklin

Dickinsons letters to his fellow British colonists elegantly outlined his opposition to the 1767 Townshend Acts as being no different than the repealed Stamp Act of a few years earlier.
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to cease advocating for change. Independence was beginning in the hearts and minds of the people of Pennsylvania. The events in Philadelphia in the early 1770s became compressed. The struggle for power between the moderate Whigs and the radical Whigs turned on the issue of how to best preserve American libertiesstatus quo within the Empire or independence from the Empire. The Radicals were gaining in support daily and convened a Provincial Convention in the winter of 1775. This Convention was the child of a series of public meetings held in 1774 to show support for the people of Massachusetts whose liberties were under attack from the Boston Port Act and other Coercive Acts. Loss of trial by jury and enactment of bills of attainder were serious breaches of constitutional protectionsat least from a colonial view. Parliament made it very clear to its subjects that Parliament could define the rule of law. This is clear from essential liberties such as trial by jury being circumvented by the use of Admiralty Courts. The astute colonial elite knew very well that this was not the protection of rights by the English constitution that they had flourished under. American lawyers believed that statutes, or positive law, should not over-rule natural law and that no man, or men, or representatives of men, should be above the law. For if men can define the rule of law then the social compact becomes led by individuals, alone or in concert, instead of led by law and not individuals, alone or in concert. Pennsylvanias Provincial Convention helped to form the county Committees of Correspondence and attempted to be in a position to relay public opinion to the Assembly. For its part, the Assembly retained its position by appointing only its own members to the delegation sent to the Continental Congresses convening in Philadelphia.

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The Provincial Convention essentially stood for independence from the Empire; the Assembly wanted to exhaust meaningful peaceful negotiation before independence. Both sides were concerned with the encroachment of American libertiesbut uncertainty was in play and events were quickly unfolding. Even after the electrifying pamphlet, known as Common Sense, was circulated, in January 1776, public opinion was divided over whether to negotiate or fight the mother country. The turning point may have came when the Continental Congress, meeting in Philadelphia, passed a May 26, 1776 resolution suggesting that the colonies begin to establish new governments without English authority. The radical agitation to replace the Assembly and replace the 1701 charter received a boost when shortly thereafter news was received that Virginias delegation to the Continental Congress favored independence. As those representatives who favored independence in the Assembly stayed away, the legislative body could not make a quorum and its authority began to wither. The radicals called for a constitutional convention to replace the charter. The frontier counties, the local Committees of Correspondence, the Continental Congress, and the lack of a credible response by the Empire, gave credence to the radical position. The radicals eventually pushed through a new constitution in September of 1776. Quakers in the Assembly let it be known that their pacifist stand was unchanged. This message was not well received by the western frontier. This fact, coupled with a recession in the west, was an important reason why the Quaker-led Assembly would fall in 1776 and a radical, new constitution would be created. Those men who precipitated the end of the 1701 Frame of Government and its Quaker-led Assembly, where alternatively known as Radicals and/Constitutionalists. The term Constitutionalist refers to supporters

35

of the 1776 Pennsylvania Constitution and not to the United States Constitution. Those men who opposed the 1776 Pennsylvania Constitution were known as Republicans. This struggle for the institutionalization of power interests in revolutionary and postrevolutionary Pennsylvania was a critical step in Pennsylvania history. The Constitutionalists were relatively unknown men of relatively little property. Several historians have characterized them in class conflict terms, in pre-Jacobin terms, and even as losers who benefited from beneficent historical timing. This historian prefers to describe them as individuals who were carrying on the business of governing themselves in the midst of armed conflict with the worlds mightiest military power. These Constitutionalists continued with the democratic institutions imbued in Pennsylvanias political culture by the seventy-five year old 1701 Frame of Government. They posted bills for public perusal, and established a unicameral legislature. Of course, new mechanisms such as a Council of Censors were instituted as well. This innovation was an elected council that acted as a watchdog over the constitutional health of the commonwealth. The council checked to see if constitutionality was preserved and set the agenda for any considerations of constitutional amendment. The Constitutionalists certainly revealed the depth of the Quaker influence in Pennsylvanias history. And it may be that the Constitutionalists error may have been Quaker-ian in origin. The Quakers governed as though they believed that they lived in a society that really only included themselves. The Constitutionalists did the same thing they governed as though they served a homogenous republic. They did notthey lived in the most heterogeneous provincial society on the North Atlantic seaboard. They were

36

always outsiders, however, and their political views were unpopular with many of their fellow citizens. Representation was a key issue. The emergence of the Constitutionalists, also called the Radicals, to challenge the Quakers and the Presbyterians resulted in an assault on the traditional suffrage qualificationproperty. There had always been a connection between property and voting rights until the Radicals assumed power. Their successful struggle with the Assembly produced a fundamental change in how citizens were represented in the legislature. Property qualifications were eliminated. Payment of taxes essentially replaced the property qualification to vote in Pennsylvania in 1776. As welcome as the elimination of property qualification was in 1776 Pennsylvania, the constitution also instituted a loyalty oath. Many voters were repulsed by the loyalty oath requirement. The loyalty oath requirement had two components. The first was a declaration of fidelity to the community in which the representative lived and advocated for. The second was a declaration of faith in God. The Constitutionalists required these oaths as means to secure the government to the community as a way to best protect individual liberties. Conversely, the Republicans believed that the best way to protect such liberties was through a mixed government and rule of law. One view of the function of oaths requires legislative supremacy and the other view refutes the notion that individual liberties can be protected best by positive, or statutory, legislation or law. The stage was set for the contest of the of power interests in Pennsylvania. What fundamental law values would Pennsylvanians ultimately consent to? The Constitutionalists were for government close to the people and legislative supremacy.

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The Republicans were for a more mixed governmental structure and popular sovereignty.46 1777-1790 1776 Pennsylvania was in turmoil. The Continental Congress was based in Philadelphia. The Committees of Correspondence and the local militias had formed and were effective. The frontier people were agitating for greater inclusion and attention to their security. The radical Whigs had sensed that their opportunity to increase their power was enhanced. The moderate Whigs did not really know what to do. Loyalists, neutrals, and patriots all mixed together and events ebbed and flowed with no apparent direction. This was what it was like to be alive in Philadelphia, and Pennsylvania, on the eve of Independence. This internal division is important to remember when thinking about this particular past. Those in the future know the outcomes of past events and dilemmas. Those at the time did not know what was going to happen. This is perhaps the most difficult issue when studying, and writing, about the pastescaping ones own cosmological moment and transporting to the time under investigation. Some overall issues seem to encapsulate the time: how should the state of Pennsylvania be governed? Should there be national independence and war? How to pay for such a conflict? How to best provide security for those in the cosmopolitan east

This section acknowledges the work of several scholars. Vincent McGuire, Republicanism at the American Founding: Virtue, Community and Liberalism in the Revolutionary Constitutions of Massachusetts and Pennsylvania, (PhD diss., University of Colorado, 1995). William G. Miller, Moral Legislation in Early American State Constitutions and Legislation, (PhD diss., University of Dallas, 2006). Nathan R. Kozuskanich, For the Security and Protection of the Community: The Frontier and the Makings of Pennsylvania Constitutionalism, (PhD diss., Ohio State University, 2005).
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and those in the frontier west? The two political groups who attempted to address these very real issues remained the Constitutionalists and the Republicans. The Constitutionalists, or radical Pennsylvania Whigs, were responsible for drafting, composing, and instituting the 1776 Constitution. They continued the Pennsylvania political tradition of a unicameral legislature but instituted the invention of eliminating property suffrage qualifications and requiring that people take a loyalty oath to Pennsylvania and to God. Diluting the executive and requiring a dependent judiciary were other departures. This was intended to be a government closest to the governed thereby ensuring the best government of and for the people. The Republicans, or moderate Pennsylvania Whigs, were opposed to the 1776 Constitution. They wanted to abolish the unicameral Assembly and institute a more mixed governmenta House and a Senate, or a lower assembly of representatives and a upper assembly of representatives. This was intended to spread representation to more diverse elements of Pennsylvania society, thereby enhancing individual liberties. The Constitutionalists structure of government favored the majority over the minority. The Republicans believed that the mixed government structure with a strengthened executive and independent judiciary would not only protect majority rights, but would also protect minority rights. The Republicans were alarmed by what they saw as arbitrary action taken by the Constitutionalist controlled Pennsylvania Assembly. One of their main points of contention was the loyalty oath prescribed by the constitution. If an individual refused such an oath, then that persons liberties were curtailed. The Republicans believed that

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this was positive law superseding natural law, or in no small way the same as the English Parliament curtailing American liberties by fiat. The Constitutionalists were concerned with the stability of government within the context of war and believed that the overall public welfare was best protected by security concerns that sometimes may require less attention to minority rights. Security concerns were a major concern in the fledgling United States. Imagine what it would be like to be engaged in an armed conflict with the worlds hegemonic military power. The British Army threatened and invaded Philadelphia in the fall of 1777 and subsequently abandoned the city in the summer of 1778. This was difficult on the citys inhabitants and further inflamed security concerns of those in political power and the Pennsylvania militia. An incident on October 4, 1779, known as the Fort Wilson Riot,47 occurred at the home of a prominent Republican, James Wilson. A group of angry citizens, who were disaffected by the economic depression caused by the British occupation of Philadelphia, decided that Mr. Wilson would be a convenient target for a demonstration. It should be noted that Mr. Wilson, as a civil liberties legal advocate, blunted a Constitutionalist attempt to legislatively deprive twenty or so citizens from exile and loss of their property. The demonstration took a violent turn and people were killed. Wilson survived. This kind of internecine strife was of obvious concern to all patriots of the American struggle against the Empire and Parliamentary authority. Regardless of disagreements about the manner of home rule, both Pennsylvania political coalitions desired home rule, not British rule. Again, the question still remainedwhat to do? John K. Alexander, The Fort Wilson Incident of 1779: A Case Study of the Revolutionary Crowd, The William and Mary Quarterly, Vol. 31, No.4 (Oct., 1974), pp. 589-612.
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The Constitutionalists continued to use legislative enactments to achieve order and security during the war. The Republicans continued to oppose them. Two salient examples should be discussed here. The first is the abridgement of the state charter of the Bank of North America. The second is the dissolution of the state charter of the College of Philadelphia and the subsequent state charter of the University of the State of Pennsylvania. Both examples are important to this essay because they represent clear examples of the voiding of contracts by legislative fiat. These are further examples of legislative supremacy, not unlike the actions of Parliament against the colonists. The Bank of North America opened in January of 1781 with a charter from the Continental Congress and the state of Pennsylvania. The brainchild of Pennsylvanian Robert Morris, the bank was a privately owned corporation with a dual charterone national and one state. The Pennsylvania Assembly decided to void the state charter but the Bank continued to operate on the basis of its national charter. Here is a clear example of legislative fiat abridging a legal charter or contract. The College of Philadelphia is an example similar to that of the Bank of North America. The Pennsylvania Assembly, controlled by the Constitutionalists, decreed that the college was headed by a traitor, Reverend William Smith, and essentially shut the College down. While Smith continued to operate the college under different means, the Assembly chartered a new institution called the University of the State of Pennsylvania in Philadelphia. The Constitutionalist-controlled Assembly again voided a private charter by legislative action. The Republicans were vehemently opposed to policies and actions that mirrored English parliamentary oppression by legislative sovereignty.

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After gaining formal independence in 1783, more people of Pennsylvania began to gravitate to the Republican position. The merchant and artisan classes, the Quakers and nationalists joined with the Republicans to defeat the Continentalists. The Continentalists held a much narrower constituency, mostly Scots-Irish and German Presbyterians. The 1776 Constitution was replaced in 1790 by a new constitution that institutionalized the Republican coalitionsa stronger executive, a bi-cameral legislature, an independent judiciary, and a structure that recalled the rule of law and of popular, as opposed to legislative, sovereignty. The 1776 Pennsylvania Constitution and the 1790 Pennsylvania Constitution The 1776 Pennsylvania Constitution was unique. It was the most democratic state constitution. The text began with the Preamble, or a statement of purpose, of the document. Much like the Declaration of Independence, the influence of the theories of John Locke, David Hume, Algernon Sidney and Baron de Montesquieu could be discerned. It espoused the social contract theory and spoke of natural rights, popular sovereignty and the right of revolution.48 The Preamble possessed a quality of rhetoric adequate to its occasion. Following the Preamble, the Constitution contained a section called, A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania. Virtually all the first state constitutions contained such provisions following the precedent of the Stamp Act Congress of a decade earlier and the Virginia Declaration of Rights. The sixteen articles provided for natural rights, and right of property with the goal of civic happiness. Freedom of worship and speech were J. Paul Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary Democracy (Philadelphia: University of Pennsylvania Press, 1936): 177.
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guaranteed. Common law doctrines were included such as reasonable search and seizure, trial by jury, and the right to bear arms. There was, however, no protection against ex post facto laws or laws prohibiting the abrogation of contracts or bills of attainder.49 The next section enumerated the details of the structure of government. The authors of this constitution clearly intended to produce a radically democratic plan for the government to be close to the people. This was achieved by the creation of an executive council, a unicameral legislature, an oversight body called the Council of Censors, elimination of property qualifications for voting, and an oath of allegiance to the state.50 Radical Whigs such as Timothy Matlack, James Cannon, David Rittenhouse and George Bryan were seconded by Dr. Thomas Young, Thomas Paine and Benjamin Franklin in producing such clear democratic institutions. 51 The notion of the separation of powers was conspicuously absent from this document. It was perhaps due to the allegiance people had to their Assembly and to the relative distrust they had for the proprietary governors. The writers of the 1776 Constitution saved their most interesting innovation for last. The Council of Censors was to be the guardian of the peoples liberties and the Constitution itself. Elected every seven years, the Council oversaw the appropriateness of legislation, the integrity of the Assembly, the financial condition of the state, and provided the means for amending the Constitution.52 Interestingly enough, this most
49

Selsam, Pennsylvania Constitution, 182. Selsam, Pennsylvania Constitution, 183.

50

Joseph S. Foster, In Equal Pursuit of Liberty: George Bryan and the Revolution in Pennsylvania (University Park: The Pennsylvania State University Press, 1994): 79.
51 52

Selsam, Pennsylvania Constitution, 199.

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radical of institutions met only a few times and never really functioned. This may have been because of the fierce opposition of the Republicans. After Pennsylvania ratified the United States Constitution on December 12, 1787, objections to the 1776 Pennsylvania Constitution were raised on the grounds that it was incompatible to the federal constitution. The Republicans demanded that the latter was supreme and that a state constitutional convention should be held to change the state fundamental law. In November of 1789, the State Constitutional Convention convened to consider how to amend the 1776 Constitution. Led by James Wilson and Thomas McKean, the Republicans squared off against the Constitutionalists led by William Findley and Robert Whitehill.53 The convention changed major features of the 1776 Constitution in light of the new federal constitution. The unicameral legislature was to be replaced by a bicameral body. Additionally, the executive council was to be supplanted by a single executive. Many of the duties of the Council of Censors fell under the jurisdiction of the governor as well. Moreover, the dependent judiciary of the 1776 Constitution was to be replaced by an independent judiciary. The separation of powers was to be operational in the new document. The new constitution was adopted by the convention in its second session in August of 1790. A reading of the text of the 1790 Pennsylvania Constitution reveals a brief Preamble asserting popular sovereignty. The document then outlines the structure of government as noted. The radical voting qualification of paying taxes was retained. Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790 (Harrisburg: The Pennsylvania Historical and Museum Commission, 1971): 225.
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The peoples rights were enumerated by Article IX. This article contained twentysix sections. Sect. 26 read, To guard against transgressions of the high powers which we have delegated, WE DECLARE that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate.54 This constitutions declaration of rights did, as opposed to the 1776 Constitution, provided against bills of attainder and ex post facto laws. The excesses of the 1776 Pennsylvania Constitution were ameliorated by the adoption of the 1790 Pennsylvania Constitution. It is fair to say that the legislative supremacy operative in the 1776 Constitution was mirrored by the Articles of Confederation.55 One could also see how the 1790 Constitution closely paralleled the 1787 United States Constitution. The rule of law was no longer defined by the legislators. Now the legislators were bound by the rule of law.

Pennsylvania General Assembly. Pennsylvania Constitution. Accessed March 5, 2011. http://www.legis.state.pa.us/wu01/vc/visitor_info/creating/constitution.htm

54

Owen S. Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania (University Park: The Pennsylvania State University Press, 1995): 258
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CHAPTER 3MASSACHUSETTS

The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic . . . the body-politic is formed by a voluntary association of individuals; its 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 . . . We, therefore, the people of Massachusetts . . .do agree upon, ordain, and establish the following declaration of rights and frame of government as the constitution of the commonwealth of Massachusetts . . . to the end that it may be a government of laws, and not of men . . .56 Massachusetts was the one of the oldest and most vibrant of the British American colonies in the mid-eighteenth century. The city of Boston was the center of revolutionary ferment at the time of the American Revolution. Moreover, the history of how the sons of Massachusetts formulated a strategy to return to English constitutional

National Humanities Institute. 1780 Constitution of Massachusetts. Accessed July30, 2008. http://www.nhinet.org/ccs/docs/ma-1780.htm
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first principles in their own constitution is instructive as to how the ultimate American fundamental law document, the United States Constitution, was formed and ratified. Massachusetts history is really one of the social compact manifesting itself in the primary corporate unit of the town community. The Mayflower Compact is one of the first covenants made among the members of the Puritan community.57 Other town communities throughout the history of the colony, their state, spoke with a common voice about shared political values. Notable examples are the Braintree Instructions, the Pittsfield Petitions, and the Essex Result.58 It is no coincidence that these community resolutions originated from the town corporate unit. Given the religious and ethnic homogeneity of the Massachusetts population, it is logical that the political organization of power interests centered in the town unit.59 Although much has been made of the rugged individualism of the original New Englanders, in truth the societal structure of Massachusetts was one of near strict conformity.60 Religious toleration was not a characteristic of Massachusetts society. The Avalon Project. The Mayflower Compact. Accessed March 3, 2011. http://avalon.law.yale.edu/17th_century/mayflower.asp John Carver, William Bradford, et al., signed this resolve in 1620: In the name of God, Amen. We, whose names are underwritten, . . . covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, . . . do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, . . . as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience.
57 58

Braintree, Essex and Pittsfield were towns in colonial Massachusetts.

Robert E. Brown, Middle-Class Democracy and the Revolution in Massachusetts, 1691-1780 (New York: Harper & Row, Publishers, 1969): 102-105.
59

Barry Alan Shain, The Myth of American Individualism (Princeton: Princeton University Press, 1994). Shains contribution is significant to this thesis in that it corroborates, derived from an exhaustive review of primary sources, the influence of Protestant thought and culture on the formation of the town corporate unit as it developed in Massachusetts, and in other colonies. Sermons and writings of the intellectual clergy are revealing as to the inaccuracies of the modern idea of the freedom and individualism of the colonial American.
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Colonial Beginnings to 1760 The story of the Mayflower landing at Plymouth Rock is told to every school child in America. While it would be allegorical to begin this discussion with the first uniquely American holiday, Thanksgiving, perhaps a more fitting start might be the Mayflower Compact. This American covenant was agreed upon while approaching the first New England frontierthe beaches of Plymouth. The significance of the Mayflower Compact was that of self government. This self government existed according to church authority administered by the Puritan ministers or clergymen. It did not take long for the ecclesiastical magistrates of the Puritan community to form the General Court and take control of governing the colony.61 This step of forming a civil government based on Calvinist legal norms was hailed as establishing a city on a hill as a testament to the grace and power of God. Within this city on a hill there resided individuals who formed a compact with each other for their edification and glory to God. It is important to note that while the Reformation mandated that the individual alone answers to God, the Plymouth community of believers were also accountable to each other. The strength of this social compact was to be a pillar in the foundation of Massachusetts constitutional development. Anyone not conforming to Puritan and Biblical codes found themselves ostracized, banished, or even executed. No longer in a state of nature on the high seas, the people of Plymouth Colony observed rigorous moral codes of conduct. A fictional but believable example of individuals checking each others moral behaviors and resultant consequences would be Richard D. Brown and Jack Tager, Massachusetts: A Concise History (Amherst: University of Massachusetts Press, 200): 36-57.
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the story of Hester Prynne in Nathaniel Hawthornes, The Scarlet Letter.62 As individualistic as ones relationship to his Creator was, the authoritarian magistrates revealed an extreme top-down town hierarchy. Salvation was by personal faith, or by the inner light, but social grace was unobtainable in a society when an individual did not adhere to orthodoxy. This orthodoxy is best described by what the Puritans called the Fall. Essentially grounded in the story of Adam and Eve, Puritan theology held that since the Fall, all men are born in sin; salvation comes as a gift of God. Good works did not get one to heaven. Therefore, all men had become law-breakers by nature and are often unable to obey the ultimate natural law. Given this reality, the magistrates of the town had the solemn duty to see that order prevailed in Puritan society. As the Puritans believed that God loved all men equally, it was also apparent that He bestowed each individual with differing abilities. This was known in Calvinist thought as the Calling. The highest calling was to the clergy. A theological hierarchy was formed with the clergy and the magistrates at the top. This was how power and authority was institutionalized in the nascent Massachusetts town. The relationship of the Fall and natural law is important to understanding how the covenant thread beginning at the Mayflower Compact continued to the endpoint of the 1780 Massachusetts Constitution. Adam and Eve, in a state of perfect nature, or paradise, could not obey the one commandment of God and fell from grace. This fall created a circumstance by which man needed to band together to survive and

The Scarlet Letter, a novel of a community shunning a young woman and her child is a portal into the cosmology of seventeenth century Massachusetts. Hester Prynne lives a charitable and moral life but even in death her tombstone bore the stigma of a scarlet A.
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subsequently had to form simple governments and codes to offset the licentiousness of his human nature.63 The manifestation of the inner light and the calling often times could be seen in the acquisition of property, or wealth, in the towns. Puritans saw their personal prosperity as a sign that God had predestined them to salvation. The Puritans, however, usually used the fruits of their labor to further the growth and order of their society. As magnanimous as the townspeople could be to one another, the presence of any different religious orthodoxy was not tolerated. But within the town community, division within Puritan believers precluded the occurrence of conflict and communal dissent. Whatever disagreements that did occur did not have in them a basis in fundamental religious doctrine. This religious conformity allowed the Puritans to erect local town governments that used the town meeting as a forum for discussion and corporate decision making. The cooperation fostered by the town meeting and the churches was a nascent form of conflict resolution that is a characteristic of the United States Constitution. In addition, but no less importantly, the cooperation of all the townsfolk with different Callings, and attendant property accumulation, resulted in a universal appreciation of the value of property rights of the individual or the minority. The very important issue of representation of the freemen of the towns was solved by choosing some to go in the name of the town to the colonial legislature or the General Court. The town meeting resulted in the consensus of the community and the chosen representatives carried these sentiments to the General Court. This was not pure John M. Steadman Mans First Disobedience: The Causal Structure of The Fall. Journal of the History of Ideas 21 (1960): 180-197.
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democracy, but a form of representative government akin to republicanism. It is also important to note that the General Court in Massachusetts existed for the Puritan towns and not for the British Empire. This preference for local government was manifested in a profoundly independent legal documentthe Laws and Liberties of 1648. This colonial legal innovation was a precursor to a true constitution. It was a codification of laws that existed within and among the towns as administered by local magistrates. The tensions between the authority of the individual towns and the provincial assembly were ameliorated by compromise in the Laws and Liberties document.64 The town magistrates and the General Court preserved essential Puritan values.65 The Laws and Liberties of 1648 were foundational to the development of Massachusetts constitutionalism.66 The independence of the Massachusetts Bay colonists did not go unnoticed in the mother country. In 1685, the English monarchy established the Dominion of New England.67 Sir Edmund Andros was appointed Governor of the new entity. Andros immediately took executive action to bring the colonists under submission to the throne. Mark D. Cahn Punishment, Discretion, and the Codification of Prescribed Penalties in Colonial Massachusetts. American Journal of Legal History 33 (1989): 107-136.
64

Hendrik Hartog The Public Law of a County Court; Judicial Government in Eighteenth Century Massachusetts. American Journal of Legal History 20 (1976): 282329.
65

The General Court held that . . . we have no laws . . . contrary to the law of God and of right reason, which the learned in those laws have anciently and still do hold forth as the fundamental basis of their laws, and that, if anything hath been otherwise established, it was an error, and not a law . . . as seen in Frank W. Grinnell John Winthrop and the Constitutional Thinking of John Adams. Proceedings of the Massachusetts Historical Society 63 (Oct., 1929-Jun., 1930): 113. Grinnells paper also reported that similar views were expressed by John Milton in Paradise Lost.
66

This proclamation established British rule over what is now Massachusetts, Maine, New Hampshire, Rhode Island, Connecticut, and New York.
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Governor Andros annulled the General Court and imposed new taxes on the colony. At an Ipswich town meeting, Reverend John Wise maintained that his church and town would not submit to the new law and used the Magna Carta and the rights of the colonists as Englishmen as justification. Andros responded swiftly and incarcerated the clergyman. For a short time, the imperial oppression met with little opposition. Andros did not stop there. He took the dangerous step of outlawing the colonys town meetings. He also forbade the use of church tithes to support the towns ministers and magistrates. Andros then further enraged the Puritans by taking over a Congregationalist church by eminent domain and converting it to the Church of England. This extraordinarily arrogant step was aggravated by the governors next move. Andros abolished the ownership of land and replaced the fee simple arrangement with quitrents. In addition, the governor decreed that existing land titles would be subject to review, in order to ascertain the proper fees to restore ownership. Sir Edmund Andros was fast becoming a pariah in colonial Massachusetts. By this time, however, King James II was replaced by William of Orange. The former magistrates of Boston rebelled and imprisoned Governor Andros and his supporters. Forming a Council for the Safety of the People, the colonists restored the old colonial charter government independent of the crown now in turmoil. Fortunately for the Puritans, Prince William was sympathetic to their dilemma. This did not mean, however, that the Massachusetts Bay colony would continue with its tradition of independence from the empire. A new royal charter was proclaimed in 1691 and Sir William Phips was designated governor of Massachusetts Bay. A Puritan, Phips was in agreement with the religious

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and social traditions of the colonists. The town traditions and the General Court became operative again and the colonial leadership was satisfied that order had been restored. This order was soon to be challenged by the tensions in the town of Salem over the perception of the sudden appearance of satanic influence in their community. Governor Phips responded by convening a special court in 1692. This court promptly hanged nineteen townspeople for the crime of witchcraft. Shock waves spread across the Congregationalist towns in the colony. By 1693, the accusations had accelerated within the greater colony and a concerned General Court suspended all witchcraft trials. The damage was done, however, and the relative harmony of the body politic was disrupted. This may have been the emergence of a fissure within the Puritan communitiesthat is, the old way of strict adherence to orthodoxy was being challenged by more secular concerns. The coastal towns exhibited this tension more than the western communities. This was most likely due to the close proximity and influence of trade with England. As the colony progressed into the eighteenth century, trade increased and more colonists, including interior farmers, were becoming interested in profiting from imperial relations. The religious and civil independence was waning in the face of an increasing imperial presence. Some Congregationalists were abandoning the strict orthodoxy of their forebears. An example would be the relatively high incidence of child birth out of wedlock by 1730. This was a clear indication that chastity was in remission.68 The sudden advent of a revival of religious fervor took place in the western town of Northampton. Under the preaching of Jonathan Edwards, people were experiencing

68

Brown and Tager, Massachusetts, 53.

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anew the power of Gods Spirit and returned en masse to religious devotion.69 Confined at first to Northampton, the phenomenon began to spread throughout the entire colony. This came to be known as The Great Awakening. However, not everyone in Massachusetts Bay experienced this revival. Many remained secular in their behavior. By 1750, Massachusetts was a pluralistic society with imperial relations influencing most colonists.70 The colonys strict Puritan values had become diluted by commercialism and a growing distance between church and state. Massachusetts Bay was really no longer a Puritan theocracy. However, the foundations of the towns of colonial Massachusetts were still profoundly Congregationalist. 1761-1776 In 1761, Boston lawyer James Otis began to argue against imperial customs officials who used Writs of Assistance to conduct searches of vessels for contraband.71 The notion of private property search and seizure was contentious in the minds of the colonists who believed that such arbitrary power diluted their civil liberties.

Jonathan Edwards was a Yale educated clergyman and an astute thinker. He was a prime example of the intellectual elite being centered in the clergy. This paradigm would change as the intellectual loci of the colonies would soon be the lawyers. See Perry Miller Jonathan Edwards Sociology of the Great Awakening. The New England Quarterly 21 (1948): 50-77. Frederic I. Carpenter The Radicalism of Jonathan Edwards. The New England Quarterly 4 (1931): 629-644. 70 Brown and Tager, Massachusetts, 55.
69

Otis represented a group of Boston merchants that believed that the writs of assistance were illegal. Imperial customs agents had began an aggressive campaign of inspecting private property, such as homes, businesses, and vessels, for goods brought into Massachusetts without the payment of taxes. Once a writ of assistance was obtained, and procurement was done without cause, any colonial property was vulnerable to search and seizure. This probably was the beginning of colonial resistance to the increased imperial activity to tax the colonies.
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Although Chief Justice Thomas Hutchinson demurred, the Superior Court of Judicature ruled the writs to be within the law. What Otis argument did do was to render them impotent in actual practice due to his strong argument as it affected popular sentiment.72 Otis essentially argued that a mans house is his castle and that if otherwise law-abiding, a mans property, as in a state of nature, was inviolate to government. Therefore, Otis reasoned, colonial private property was protected by the rule of law under the traditions of the English Constitutionor under the rights of Englishmen. Another consequence of Otis rigorous defense of colonial liberties was the effect his arguments had on John Adams. John Adams was to become the primal legal theorist of Massachusetts Bay.73 Adams belief in the rule of law was born in the logic of Otis legal theory. Adams identified with the emotion of solidarity the colonists felt against the arbitrary power afforded to customs officials armed with a Writ of Assistance. John Adams would combine his legal mind with a study of political systems to become one of Americas greatest political theorists. The dichotomy between the perspectives held by John Adams and the royal Massachusetts Bay governor Thomas Hutchinson is a useful framework in beginning to explicate this important period in Massachusetts history. Hutchinson believed that the colonists of Massachusetts Bay were one and indistinguishable from the subjects of Great Britain. Adams disagreed, believing that the colonists had grown apart from the Due to Otis strong argument, colonial courts did not issue writs but Parliament decided to strengthen the legality of issuing writs of assistance by including them in the 1767 Townshend Acts.
72

C. Bradley Thompson, John Adams & The Spirit of Liberty (Lawrence, KS: University Press of Kansas, 1998). John P. Diggins, John Adams (New York: Henry Holt and Company, 2003).
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European nationality and really owed their allegiance to the protections of the unwritten English constitution. Hutchinson felt strongly that the colonists had no right to repudiate the English constitution that had protected them for well over a hundred years. Adams as adamantly indicated that the colonists were duty bound to resist the change in the English constitution that was beginning to usurp American liberties. Hutchinson saw the colonial resistance to imperial reform as emblematic of a viscous licentiousness brought about by colonial elite demagoguery. Adams saw the colonies in a mortal constitutional struggle, or crisis, with a Parliamentary authority that was changing into a form of tyranny over its colonies. 74 One of the signs of change in imperial colonial policy and how Parliament would begin to subjugate the colonists took place after the culmination of the Seven Years War or the French and Indian War in 1763. Parliament decided that the imperial treasury needed to be replenished and passed the Stamp Act of 1765 to augment the process of taxing the colonies to help pay for its defense by the empire. This law was seen in Massachusetts as a watershed moment in a movement toward tyranny and some colonists immediately moved to answer this threat. The emergence of colonial resistance can be clearly seen in the Braintree Instructions of 1765. Adams and his fellow citizens, following the church and town meeting traditions of Massachusetts Bay, debated and produced a tract detailing a colonial response to the changing policies of Parliament toward its colonies. The Instructions were forwarded to the General Court in Boston. The colonial legislature then sent the Braintree Instructions to the inter-colonial, or continental, gathering in New York, the 1765 Stamp Act S. B. Benjamin, John Adams The Invisible Hand Behind American Constitutionalism (PhD diss., New York University, 1996): 251-265.
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Congress. Adamss thought and writing in Braintree found its way into the proceedings of this monumental congress.75 This revolutionary document probably influenced the response written by Pennsylvanian John Dickinson, for the Congress.76 Additionally, in 1766, the Virginian Richard Bland wrote a response to Parliament called An Inquiry into the Rights of the British Colonies. This scholarly tract argued that, although the colonists were subject to Parliament, the Americans were entitled to the rights of Englishmen and the constitutional protections thereof. Bland deftly explored the relationship of the colonial individual to the authority of Parliament. Here the question was explored whether Parliamentary statute was binding if it trumped the tradition of the rule of law.77

The Virginia Resolves, May 1765, with the Braintree Instructions, September 1765. Both colonial resolves emphasized the constitutional problem with the Parliamentary legislation taxing the colonies. The Virginia House of Burgesses passed the resolution that Virginians were only legally liable to pay taxes determined by their own elected representatives. The Braintree Instructions were not actually passed by the Massachusetts General Court but may as well have been. The Instructions echoed the Virginia Resolves in terms of the taxation and representation question but also raised the important issue of the right to a trial by ones peers. The new imperial legislation passed by Parliament extended the use of admiralty courts which could abrogate an individual citizens right to a trial by jury of his peers. Finally, the Instructions warn of a Pandoras Box of offences that the Stamp Act could open, . . . but the Stamp Act has opened a vast number of sources of new crimes, which may be committed by any man. . .
75

The Declaration of Rights and Grievances, passed October 19, 1765 by the First Congress of the American Colonies and authored by John Dickinson of Pennsylvania. The Declaration formally summarizes the Virginia Resolves and the Braintree Instructions by enumerating the following: the colonists are entitled to the rights of Englishmen, that taxes can only be constitutionally levied upon the colonists by their respective legislatures, that it is unconstitutional for the people of Great Britain to grant to his majesty the property of the colonists, that trial by jury is the inherent and invaluable right of every British subject in these colonies. . .
76

Richard Bland, An Inquiry into the Rights of the British Colonies, 1766. Bland died shortly after authoring this important, yet often overlooked, insight into the colonial mindset regarding imperial reform and how to respond to a real problem in real time.
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Parliament was keenly aware of the growing resistance in her colonies. Nowhere in British North America was the focus of imperial concern greater than in Massachusetts. Something definitive needed to be done. Parliament abrogated the Charter of 1691. The independent colonial General Court was replaced by appointees of the Crown. Convened in the summer of 1774 by newly-appointed Governor General Thomas Gage, the Mandamus Council, as it came to be known, faced immediate opposition from the colonists.78 Town meetings were convened and instructions soon flowed forth to disregard the council. The towns did not recognize the legitimacy of the royal governor and the Mandamus Council but asserted colonial domain and thus began the end of royal authority in Massachusetts Bay. The constitutional emphasis embedded within the colonial response to imperial reform is as clear as it is important to understand. This framework of argument is consistent with the history of covenants and compacts within Massachusetts.79 There were convulsions within the colony against imperial reform. A clear example was that exemplified by a group known as the Berkshire Constitutionalists. Harry A. Cushing, History of the Transition from Provincial to Commonwealth Government in Massachusetts, (New York: PhD diss., Columbia University, 1896): 5461.
78

Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988) and Donald S. Lutz, Colonial Origins of the American Constitution (Indianapolis: The Liberty Fund, 1998). James McClellan, Liberty, Order, And Justice: An Introduction to the Constitutional Principles of American Government (Indianapolis: The Liberty Fund, 2000). The works of Donald Lutz are invaluable to the student of how fundamental law in America evolved to the endpoint of the 1787 United States Constitution. The role of the first state constitutions, or the choice to retain colonial charters until the war for independence was settled, is explained and related to the compacts and covenants tracing back to the beginning of the English North American colonial experiment.
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After a convention in 1775, the western Berkshire County town of Pittsfield, produced a document in 1776 known as the Pittsfield Petitions.80 This product of a traditional Massachusetts town meeting asserted that Pittsfield and western county residents had reverted to a state of nature commencing with the revocation of the royal charter of 1691 as provided for in the Coercive Acts of 1774. The townspeople further requested that the Provincial Assembly in the east enact a constitution for Massachusetts. This event in western Massachusetts does not get the modern attention of a Lexington and Concord, a Boston Massacre, or a Boston Tea Party. While this thesis acknowledges these historical events as important, the significance of the Pittsfield Petitions are far more germane to this discussion of the ideas of individuals and their concerted actions toward a new source of authoritythe people. Of course, the coming American revolution was not about the disenfranchised masses rising up to throw off the shackles of the few. Rather, it was a rebellion against the current constitutional authority, and the establishment of a new authority necessary to protect the liberties that the colonists felt they once enjoyed as subjects of the British Empire.81 Mention of the Suffolk Resolves should be made here. In late summer of 1774, and following the lead of Berkshire County, representatives from the counties of Essex, Middlesex, Suffolk, and Worcester met in convention to respond to one of the Coercive Acts, the Parliamentary Massachusetts Government Act. This law repealed the colonys

Oscar and Mary F. Handlin, eds., Popular Sources of Political Authority: Documents On The Massachusetts Constitution of 1780 (Cambridge: The Belknap Press of Harvard University Press, 1966): 17, 88-94.
80 81

Handlin, Popular Sources, 3.

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1691 charter and eliminated the colonys authority to elect its own representatives. The king retained the legal ability to appoint members as he saw fit. Authored by Joseph Warren, the convention issued a resolution explaining why the county committees were closing their courts rather than to submit to imperial oppression. Resolutions included refusal to pay imperial taxes, non-acquiescence of the revocation of the 1691 Charter. They also decried the closing of the port of Boston. They supported a boycott of English goods. They requested the towns to raise a popular militia, and requested all towns to rally around a colonial government in place of the royal representatives in Boston.82 In October of 1774, the counties sent representatives to the Provincial Congress to govern the colony. This extra-legal conclave was renewed two times; it expired in June of 1775 after the Second Continental Congress suggested that Massachusetts re-instate the Charter of 1691. Not everyone agreed with this advice. The Berkshire Constitutionalists still considered themselves to be in a state of nature.83 Later in the spring of 1776, the Continental Congress requested that all the colonies take steps to formally establish independent governments. The General Court of Massachusetts agreed to the formal re-instatement of the 1691 charter. The process of creating and legalizing a new state constitution intensified.

National Park Service. The Suffolk Resolves. Accessed March 4, 2011. http://www.nps.gov/mima/forteachers/loader.cfm?csModule=security/getfile&pageid=1164444
82

Frank W. Grinnell The Influence of Thomas Allen and the Berkshire Constitutionalists on the Constitutional History of the United States. American Bar Association Journal 22 (1936): 168-211.
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1777-1780 In the spirit of Massachusetts tradition, the town meetings of Concord sent a message to the General Court demanding that a new constitution be framed in a special convention and not by the provincial legislature. Other towns affirmed Concords request, but to no avail. The General Court drafted a state constitution in 1778.84 The provincial legislature did, however, submit the document to the people with the requirement of two-thirds approval for ratification. The proposed 1778 Constitution was not approved by the counties, towns, and people of Massachusetts.85 The town of Essex sent out an extraordinary response and detailed rejection of the proposed 1778 Massachusetts Constitution. The April 29, 1778 Essex Result emphatically agreed with Pittsfield that the counties and towns might as well be in a state of nature rather than agree to a flawed constitution with no popular mandate.86 Other counties agreed, the General Court decided that a special constitutional convention should be voted upon by the state inhabitants.87

Handlin, Popular Sources, 190-201 for the text of the proposed 1778 Massachusetts Constitution.
84

Handlin, Popular Sources, 202-322 for a reading of the returns of the towns regarding the 1778 Constitution.
85

Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing during the Founding Era: 17601805, Volume 1 (Indianapolis: The Liberty Fund, 1983): 480-522 for the text of the Essex Result. This writing is ascribed to Theophilus Parsons, an Essex lawyer.
86

Hyneman and Lutz, American Political Writing, 455-479. This was a statement to representatives of the Massachusetts General Court to hear the position of the towns of the western county of Berkshire. Given in a town meeting at Pittsfield, William Whitings grievances were influential to the decision of the Provincial Congress to hold a special state constitutional convention.
87

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According to popular demand, a constitutional convention was held on September 1, 1779, in Cambridge at the Old Meeting House. It was a momentous occasion with hundreds of delegates from all over the state reflecting the wishes of their respective town meetings. From all over Massachusetts people came together, debated, spoke, and formed a government by the force of their own free will. Not by decree or by war or by accident, but by popular consent.88 After a draft was crafted by John Adams, the new constitution was sent out to the counties and towns for approval with a two-thirds majority as the requirement for ratification. The 1780 Massachusetts Constitution was formally adopted on June 15, 1780. John Hancock of Boston was elected as the first Governor under the new constitution. The 1778 Massachusetts Constitution and the 1780 Massachusetts Constitution A reading of the text of the rejected 1778 Massachusetts Constitution reveals some marked differences with the successfully ratified 1780 Constitution. The 1778 document was presented as a resolve and lacked a preamble, or any statement of purpose. This rather elementary and unsophisticated presentation lent an inappropriate tone to such a founding fundamental law document. The rhetoric of the 1778 version did little to inspire confidence. In addition, the 1778 Constitution was not substantial in substance. There was no detailed provision of the structure of government. The first section merely established a Donald S. Lutz, Popular Consent And Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980) for a thorough explication of why one must start in 1620, at a minimum, to truly understand the how the United States Constitution happened in 1787. Also see Patrick T. Conley and John P. Kaminsky, eds., The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution (Madison, WS: Madison House, 1988).
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Senate and House of Representative to comprise the General Court. There was no elaboration of function in this section. Section II likewise barely created the office of Governor and Lieutenant Governor. Later Sections, such as XXII, provided that the executives would have no veto power, but did have the power to grant pardons. Section III set forth in more detail the qualifications of the executive and legislative representatives. Section IV described in minimal detail the Judges of the Superior Court, Secretary, Treasurer General, Commissary General, and Ministers of the Gospel. Section V was significant in that it explained the qualifications for suffrage. Any freeman 21 years of age or older, excepting Negroes, Indians, and mulattoes was allowed to vote in the town of his residence, provided he paid taxes and was worth at least sixty pounds. Property qualifications for office were enumerated but unremarkable. The 1778 Constitution provided for religious qualifications. Section XXIX required that, No person unless of the Protestant Religion shall be Governor, Lieutenant Governor, a member of the Senate or the House of Representatives, or hold any judicial employment within this State. Section XXXIV stipulated that, The free exercise and enjoyment of religious profession and worship shall forever be allowed to every denomination of Protestants within this state. The absence of a Bill of Rights may have been the most objectionable to the greatest number of people of the various towns and counties of Massachusetts. The voters were aware that many of the other state constitutions contained a detailed bill of rights. The 1776 Virginia Constitution contained a declaration of rights that was very

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well regarded among the new states.89 The absence of a written declaration of individual liberties was remarkable given the recent war of independence to secure such rights. The people the town of Essex found the proposed 1778 Massachusetts Constitution to be a curiosity as well. The letter of political fundamentals known as the Essex Result may have been the tract that influenced John Adams most when he wrote the 1780 Massachusetts Constitution.90 The analysis of the legislative function was particularly lucid. Theophilus Parsons made the point that everyone, and all property, should be represented because ultimately everyone became the object of legislation. By contrast with the 1778 document, the 1780 Constitution began with a clear statement of purpose. This preamble was ample, with clear language to inspire a positive spirit in all who read it. Adams used the ringing words of natural rights, and the blessings of life, as the preamble detailed the basis of the society it was to serveThe body-politic is formed by a voluntary association of individuals: It is a social compact.91 Recalling the rhetoric of the Mayflower Compact, Adams clarified the operation of fundamental law upon the individual and not just the corporate entities such as churches, towns, counties, and state legislatures. This would become an important distinction between the Articles of Confederation and the United States Constitution. The Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (Amherst: The University of Massachusetts Press, 1978): 19.
89

David H. Fischer The Myth of the Essex Junto. The William and Mary Quarterly 21 (1964): 191-235 for fascinating story about how the Adams family decided that the signers of the Essex Result were ultimate traitors to the Union and the Federalist position. The Federalists believed that the succession plans of the Hartford Convention and New England federalism was traitorous. Although this story takes place beyond the time frame under investigation, it does so only by a little and sheds much light upon political thought of the Founding era.
90 91

Peters, Massachusetts Constitution, 195.

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Articles did not operate on individuals; the 1780 Massachusetts Constitution and the United States Constitution operated on both individuals and corporate unites. After the Preamble, the Constitution continued with Part the First. This was a declaration of the rights of the inhabitants of the Commonwealth of Massachusetts. There were thirty (XXX) articles of rights in Part the First. The rights included property, religion, speech and press, accountability of representatives, essentially republican government, essentially no bills of attainder, no unreasonable searches and seizures, right to trial by his peers, to bear arms, to peacefully assemble and no cruel or unusable punishment should be inflicted. Perhaps the most telling of the enumerated rights was No. XXX: In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.92 This was a very clear and ringing statement of the separation of powers as it pertained to the fundamental law of the Commonwealth of Massachusetts. As a philosophic ideal and as a basis for the structure of government, it is difficult to imagine this constitutional principle to be better clothed in rhetorical finery. The frame of government of this constitution was enumerated in the next Section called Part the Second. The frame of government section of the 1780 Constitution had to solve the problem of representation. The western and middle counties had different concerns than the seaboard counties. The War of Independence created profit opportunities for the easterners that were not available to those in the west. This economic disparity created
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Peters, Massachusetts Constitution, 201. 65

concerns over equitable representation, either real or imagined. Adams solved this elemental problem by compromise or simply giving something to everyone. The Senate was structured to favor representation of the eastern well-to-do. The composition of the House of Representatives served the purpose of seeing to the interests of the western economically less fortunate. Another compromise provision involved the power of the executive branch. The governor was required to be of means, was made the commander of the sword, and was given the power of the veto. Adams diminished the power of the executive by requiring a one year term of office. The sober requisitioning of term limits was indicative of the Massachusetts tradition of church values meshed with the corporate unit of the town. The Puritan values meshed with republican institutions as embedded within this constitution. The clause that recognized the traditional authority of the Congregationalist Churches may serve as evidence. A nod to the rational values of the Enlightenment was written into the document with provisions for public education. Recalling the philosophy of John Winthrop, Cotton Mather, and Jonathan Edwards, John Adams acknowledged the arts and sciences as glorifying the Creator and his people. This emphasis on erudition positioned the state and its people toward an upward spiral of achievement and productivity. One might characterize the 1780 Massachusetts Constitution document as presaging a progressive vision girded by the supremacy of the rule of law.93
Algernon Sidney, Discourse Concerning Government (1698), accessible at http://oll.liberty fund.org In the mid seventeenth century, Sidney wrote, Tis not therefore upon the uncertain will or understanding of a prince, that the safety of a nation ought to depend. He is sometimes a child, and sometimes overburdend with years. Some are weak, negligent, slothful, foolish or vicious: others, who may have something of rectitude in their intentions, and naturally are not incapable of doing well, are drawn out of the right way by the subtlety of ill men who gain credit
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CHAPTER 4ARTICLES OF CONFEDERATION AND PERPETUAL UNION

with them. That rule must always be uncertain, and subject to be distorted, which depends upon the fancy of such a man. He always fluctuates, and every passion that arises in his mind, or is infused by others, disorders him. The good of a people ought to be established upon a more solid foundation. For this reason the law is established, which no passion can disturb. Tis void of desire and fear, lust and anger. Tis mens sine affectu [mind without passion], written reason, retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without any regard to persons commands that which is good, and punishes evil in all, whether rich or poor, high or low. Tis deaf, inexorable, inflexible. The writings of Sidney were well known to the Framers and his elegant discourse on why the arbitrary decisions of any authority over the people should not and cannot stand in a stable government.

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Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.94 My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorized them to speak the language of We, the People, instead of We, the States?95 I consider the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty and a constitution.96

Articles of Confederation and Perpetual Union, Section II. http://avalon.law.yale.edu/18th _century/artconf.asp It is very instructive to view John Dickinsons original July 12, 1776 draft of the Articles. Section III of Dickinsons draft did not use the language of each state retaining its sovereignty, Each Colony shall retain and enjoy as much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation. See Merrill Jensen, The New Nation: A History of the United States during the Confederation17811789 (New York: Vintage Books), 1965 p. 25, for a description of how Thomas Burke of North Carolina viewed the Dickinson draft language as potentially subversive to the sovereignty of the individual states. The Continental Congress heeded Burkes warning and inserted Section II specifying state sovereignty.
94

Patrick Henry, 1788., in Orations of American Orators. Henrys comment on the significant change in sovereignty from the people of each state to the people of all the states speaks to one of the most important differences between political sentiments of 1776 and 1787. It is also instructive to note that in 1787 John Dickinson, the author in 1777 of the Articles of Confederation, said Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in several orbits. Note as well the views of James Wilson, who began his career in Dickinsons law office, that included advocacy of popular sovereignty and understanding of the intricacies of American federalism. In addtition, see Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton & Company, 1988) for background into the suspension of disbelief required to further the important notions of sovereignty and representation.
95

James Madison, Notes of Debates in the Federal Convention of 1787 (New York: W.W. Norton & Company, 1987). It is instructive to note that James Madison, arguably one of the finest political minds in American history, describes the Articles of Confederation as a treaty and not a constitution. This is in marked contrast to the characterization of the Articles as a weak form of government when in actual function it was more of an alliance of sovereign powers with no pretense of being a coercive government structure. Therefore whatever weakness that is ascribed to the Articles of
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The Second Continental Congress adopted the Articles of Confederation and Perpetual Union in 1777. The ratification provision within the document required a unanimous acceptance by all of the states. This resulted in one state, Maryland, holding up adoption of the Articles for four more years, or until 1781. The Continental Congress had no formal constitutional basis and no way of compelling the various states to concerted action.97 This was very important because the Congress was trying to manage a mortal conflict with the most powerful military force on the planet, the British Empire.98 The de facto government of the rebellious thirteen colonies without any real power became the de facto government of the thirteen states without any real power. Nonetheless, ratification of the Articles of Confederation was a critical step in the direction of establishing the United States of America as a coherent Confederation by future generations was not a viewpoint held by those at the time under investigation. Frank H. Garver The Transition from the Continental Congress to the Congress of the Confederation. Pacific Historical Review 1 (1932): 221234. Garver postulates that, although most historians ignore the change from the Congress of the Revolution to the Congress of the Confederation, the ratification of the Articles of Confederation resulted in a legitimacy from an unwritten and vague constitutional status to an enumerated status and thus signifying a noteworthy period fundamental law shift.
97

The Articles of Confederation, Section VIII. All war expenses were to be paid into a common treasury to be supplied by each state according to the value of the land within each state. Additionally, the taxes required to pay this was to be determined by the legislature of each state. Ben Baack Forging a Nation State: The Continental Congress and the Financing of the War of American Independence. The Economic History Review 54 (2001): 639-656. Baacks analysis of the free rider problem operative during the revolutionary war is instructive to the problems Americans grappled with at that time. In addition, this article illuminates the process of developing an institutional structure to finance the war. This necessarily shows how the financial powers of the executive body known as the Continental Congress could not compete with those of the states. Institutional change was needed to compel a financial and property order that would facilitate the growth, and survival, of the new republic.
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nation, albeit a nation of thirteen distinct entities, in the international community of nations. This viewpoint differs from seeing the Articles of Confederation as a weak instrument that caused sufficient convulsions within the new republic to necessitate the adoption of the 1787 United States Constitution. The First and Second Continental Congresses, from 1775 to 1781, continued as the Congress of the Confederation from 1781 to 1788. It is instructive to view these bodies as possessing a more executive than legislative function.99 The thirteen distinct states made up the general government with power residing in each state legislature. This is how the thirteen republics decided to address the revolutionary war exigencieswith state sovereignty and legislative supremacy, not popular sovereignty.100 The drafting and eventual ratification of the Articles of Confederation filled the need for a semblance of national order to achieve alliances. In addition, the document was useful in prosecuting the War for Independence and for providing a treaty-like superstructure to link the constitutions and charters of the original states. 101 Jerrilyn G. Marston, King and Congress: The Transfer of Political Legitimacy, 17741776 (Princeton: Princeton University Press, 1987) . Marston makes the important distinction between a Continental Congress that belied its legislative moniker of congress as functioning more as an executive body, or branch. Essentially she argues that the British monarch, King George III, abdicated his authority over the American colonies and the executive authority he held was transferred to the American Continental Congress. Therefore, it is important to note that the executive power of the Continental Congresses and the subsequent Confederation Congress worked in tandem with the legislative bodies, or congresses, of the colonies and states. This perspective is important to this essay in that it clarifies why the Articles of Confederation were not weak as commonly thought and taught today.
99 100

The Articles of Confederation, Sections II & III.

The Articles of Confederation, Section IV. This section is the precursor to the full faith and credit clause of the 1787 United States Constitution. This enumeration provides for reciprocity between the people of different states in matters of social intercourse and
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The notion of representation was as important as that of sovereignty. The Articles of Confederation required that in the Congress each state was to have one vote.102 No one state had more voting influence than another. This meant that a populous state had the same influence as a state with far less people. In a very real sense, the nature of one state, one vote, limited the sovereignty of the people of the large states relative to the smaller states. The Articles of Confederation carried the notion of representation further by allowing for the formation of committees, . . .as may be necessary for managing the general affairs of the United States under their direction . . .103 Article IX reveals the powerful executive nature of the committees and the Confederation Congress in general. The sheer number of these committees might suggest a kind of gridlock that could occur as opposed to the relative decision making ease of a single executive branch. This also suggests that the inability of the number of committees to reach a consensus for action had more to do with efficiency rather than lack of power or weakness. The committees, regardless of their numbers or complexity within the Confederation Congress, were not allowed to pass laws regarding taxation. More importantly, there was no provision made to compel the various states to actually pay anything. This was solely at the discretion of the state legislatures. Courts were also entitling them to all privileges and immunities of free citizens. The Articles of Confederation, Section V. It clearly stipulates that, In determining questions in the United States in Congress assembled, each State shall have one vote.
102

The Articles of Confederation, Section IX. This section, in paragraph five, sets a framework for managing anticipated and unforeseen collective, or national, issues that might arise in wartime. It is instructive to note that state sovereignty is still the operative value. Given the circumstances, it is perhaps understandable that the Americans would be so distrustful of centralized authority.
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solely at the discretion of the states. The Articles of Confederation made no provision for national courts. The final arbiter of disputes therefore resided with the high courts of each individual state.104 One historian has written of the parallel structures between todays United Nations and the thirteen states under the Articles of Confederation. This example illustrates the nature of the relationship between the revolutionary states.105 The proscription of central government power by written agreement does not equate to weakness. The Articles of Confederation clearly and deliberately limited the actions of the general government. Given the War of Independence against the perceived tyranny of the centralized government of the British Parliament, it is understandable that the Americans would have The Articles of Confederation, Section IX, Paragraph III, All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. Any reading of this clause could be cause to scratch ones head in confusion. What is clear is that no definitive provision was made for a orderly disposition of inter-state disputes.
104

Richard A. Gerber, Revolution and Union: The American Dilemma: 1763-1877 (Mason, OH: Cengage Learning, 2008): 71. The closest analogy we have today is the United Nations. Each member nation of the U.N. is a sovereign nation. If the U.N. passes a resolution and a country decides not to obey it, the U.N. does not have any power to enforce its will. Member nations may decide to enforce U.N. Resolutions in the name of the U.N., as with the deployment of American troops in Korea in 1950. But if member nations do not take that action, the U.N. is powerless. This paragraph concisely captures this insight into the nature of the relationship among the states from 1776 until 1788. The Articles of Confederation, Section X, The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in Congress of the United States assembled be requisite. Again, elastic language of this clause attests to the analogy of the U.N.
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structured their war-time pact among the states in this way. This league, or treaty, was elastic enough to meet the war aims of the new nation. This fact might easily be perceived as the strength, and not the weakness, of the Articles of Confederation. Congress did have power to decide issues of war and peace. Given the wartime strength of the Articles of Confederation, there were some problems that needed to be solved during revolutionary times. One issue was that of recognition by the community of nations to legitimize the Americans claim of independence and to procure international aid.106 Another issue was how to address what the British Empire had difficulty in achievinghow to achieve a coherent western territory policy, including how to convert western territories into new states in the perpetual union. This issue was primarily responsible for the delay in the ratification of the Articles of Confederation. Maryland finally agreed to ratify in March of 1781, only after it was assured that the other states would transfer their western lands to the Confederation.. Maryland also needed the naval assistance of France to protect its coast from the British. The French assisted in pressuring Maryland into becoming the last state signatory to the Articles of Confederation.107

Thomas A. Bailey, A Diplomatic History of the American People (New York: Appleton-Century-Crofts, Inc., 1958): 5265.
106

Merrill Jensen The Cession of the Old Northwest, The Mississippi Valley Historical Review 23 (1936): 27-30. George L. Sioussat and J. Maccubbin The Chevalier de la Luzerne and the Ratification of the Articles of Confederation by Maryland, 1780-1781: With Accompanying Documents. The Pennsylvania Magazine of History and Biography 60 (1936): 391-418.
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Thomas Hutchins, a land surveyor, attempted to quantify the vast western territories to facilitate future expansion of the new nation.108 This was in response to the failure of various British policies aimed at keeping the American settlers east of the various mountain chains. The lure of the bounty of the land overcame the rules and the settlers inexorably went west. From the British Proclamation of 1763, to the Quebec Act of 1774, to the Pennsylvania Scots-Irish massacres of Native Americans, there was always the drive to go west that trumped any legislation created to regulate western settlement. The competition for land among the colonies, the speculative land companies, and then the states and their frontiersmen, led the national government under the Articles of Confederation gradually to assume jurisdiction over the responsibility for overseeing how to settle the west with some semblance of order. Two goals were to be achieved; to protect private property through legal land sales, and to construct a framework for republican self-government as soon as possible. These goals were achieved by the Land Ordinance of 1785 and the Northwest Ordinance of 1787.109 Given the inability of the British Empire to cope with this issue, Anna M. Quattrocchi, Thomas Hutchins, 1730-1789, (PhD diss., University of Pittsburgh, 1994). Warren E. Kasper, Thomas Hutchins and the Federal Frontier, (PhD diss., Truman State University, 2001). The attempt of Hutchins to formulate western land policy was used by Thomas Jefferson during his presidency and the Louisiana Purchase. Jon Kukla, A Wilderness So Immense: The Louisiana Purchase and the Destiny of America (New York: Alfred A. Knopf, 2003). Joyce Appleby, Thomas Jefferson (New York: Henry Holt and Company, 2003).
108

The 1785 law was adopted by the Confederation Congress in May. As the national government was unable to directly tax, the proceeds of the sale of western lands was a solution to a vexing national problemhow to effectively raise revenues. Thomas Jefferson was a proponent of this legislation calling for the establishment of the Public Land Survey System. Also a proponent of public education as the means by which to keep republican government for future generations, Jefferson saw to it that western land revenues funded public education. Of at least equal importance was the adoption by the
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the success of the Articles of Confederation can easily be measured by the passage of these two acts. They represent a powerful evidence of the strength of the Articles of Confederation. The notion of present-ism is primarily responsible for making pejorative historical value judgments when attempting to reconstruct the past. The fact that future generations generally look more favorably upon winners rather than losers also plays into presentism. Given that the Articles of Confederation and the 1776 Pennsylvania Constitution are no longer operative, one might say that both documents lost to the pacts that succeeded them. Yet elements of both fundamental law documents exist within the constitutions that succeeded them. Present-ism obscures such insight. The Articles of Confederation and the 1776 Pennsylvania Constitution The Articles of Confederation and the 1776 Pennsylvania Constitution are two fundamental documents with interesting parallels relative to this thesis. As revolutionary documents drafted in the midst of war against a perceived centralized tyranny, both tracts embraced legislative supremacy and executive power by committee or council. They contained no mixed government structures or independent judiciaries. They enshrined majority rule with minimal rights of minority interests. In addition, both documents were difficult to amend, because the process of change was either by unanimous decision of the states or by affirmation of a council. The notion that the revolutionary ferment against British Parliament would embrace legislative supremacy is an intriguing one. Consider that Parliaments Confederation Congress of the 1787 Northwest Ordinance. This law provided for the orderly inclusion of western territories as new states rather than extensions of existing states. Unfortunately, the ordinance did not do enough to settle the question of slavery in the territories which exacerbated the issues that lead to the Civil War. Oscar and Lilian Handlin, Liberty in Expansion: 1760-1850 (New York: Harper & Row, 1989): 1-50. 75

legislative proclamations came to define the rule of law to the detriment of American colonial liberties such as trial by jury and right to property.110 Why would the Americans structure their revolutionary period fundamental laws around the constitutional change that they were rebelling against? A quick answer might be that such an approach worked, at least for a time. Further, the 1776 Pennsylvania Constitution and the Articles of Confederation diffused the power of the executive into committees and eschewed the British monarchial model or any single executive. The Confederation Congress, with its various committees, was the executive under the Articles of Confederation. Similarly, the executive power under the 1776 Pennsylvania Constitution was vested in a committee. Although this committee included a president, the executive power was diffused through the other twelve members of the executive council. The Confederation also had a president who served as sort of a chairperson. Both the Articles of Confederation and the 1776 Pennsylvania Constitution provided for a dependent judiciary. This was a subset feature of legislative supremacy that contributed to a political culture without judicial checks. Who was to decide in matters of individual liberties? Who was to decide in matters of private property and contracts? The legislature, of course.

The rule of law is about no individual, or group of individuals, being above the law. The unwritten English constitution evolved to a point where Parliament, or the combination of the monarchy, the House of Lords, and the House of Commons, could define the rule of law instead of the rule of law trumping Parliament. Ultimately, the Americans made sure that this would not occur in their constitutions.
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The majoritarian stance of the two documents reduced the ability of minorities to receive just consideration of their interests.111 This requires a study of the complexities of justice as fairness and how the will of the polis needs the ballast of individual rights to achieve a lasting political order.112 An example might be the notion of the freedom or right of speech. Pennsylvanian jurist and devout Quaker Curtis Bok said, In the whole history of law and order, the biggest step was taken by primitive man when . . . the tribe sat in a circle and allowed only one man to speak at a time. An accused who is shouted down has no rights whatever.113 Perhaps the last important parallel between the Articles of Confederation and the 1776 Pennsylvania Constitution would be the amendment process. After all, a written fundamental law document needs proper enumerated protocols for altering the text to accommodate constructive change.114 Minorities in this context refer to those not in numerical superiority and not as ethnic minorities as commonly thought of today.
111

John Rawls, Lectures on the History of Political Philosophy (Cambridge: The Belknap Press of the Harvard University Press, 2007). Rawls design was to explicate justice as a political concept within the social contract tradition of liberalism. The American Framers were well versed in the subjects of Rawls lecturesHobbes, Locke, Hume, and Rousseau, to name a few. The traditions of British American constitutionalism are deeply rooted in state of nature and social contract theory and practice.
112

Curtis Bok, Saturday Review, 13 February 1954. S. I. Hayakawa, Language in Thought and Action (New York: Harcourt, Brace & World, Inc., 1964): 5-7. Hayakawa presents a profound semantic parable, Red-Eye and the Woman Problem, illustrating the importance of the development of social contract theory to order and progress of human civilization.
113

The Articles of Confederation, Section XIII, . . . and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. See also the 1776 Pennsylvania Constitution, Section IX, The general assembly of the representatives of the freemen of Pennsylvania . . . shall have no power to add to, alter, abolish, or infringe any part of this constitution. Also the 1776 Pennsylvania Constitution, Section XIX, for a description of a Council of Censors
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The Articles of Confederation and Perpetual Union contributed to the nationalism of America during the revolutionary time period. The nascent American nationalistic sentiment of 1776 contributed to the creation of the Articles of Confederation. Regardless of whether or not the chicken came before the egg, nationalism was enhanced by this document. This is no small feat given the uncertainties of war on ones own soil. As nationalism has been described as a collective loyalty, it is well to observe two characteristics of nationalism.115 The first is a feeling of a common culture. The former British colonists certainly had a European past in common. The second is a feeling of common interests. The Americans came together as much as possible to survive in their quest for self-determination. The revolutionary war state constitutions and the Articles of Confederation are written evidence of the values of independence America. The free institutions that are the foundation of the United States of America were being forged in the experience of living under the framework of the laws of these fundamental documents.

to review the proceedings of government under this constitution with the goal of preventing the establishment of an inconvenient aristocracy. David M. Potter The Historians Use of Nationalism and Vice Versa. The American Historical Review 67 (1962): 924-950. Thomas G. Manning and David M. Potter, Nationalism and Sectionalism in America, 1775-1877: Select Problems in Historical Interpretation (New York: H. Holt Company, 1949). Manning and Potter provide clear explication of the concept of nationalism and in particular, the development of American nationalism from independence forward.
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CHAPTER 5UNITED STATES CONSTITUTION

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.116

116

Preamble of the United States Constitution.

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The Pennsylvania radical pamphleteer, Thomas Paine, is best known for his stunning call to independence, a tract known as Common Sense. Paine was a supporter of the 1776 Pennsylvania Constitution. His prophetic statement about the union of the United States of America is instructive as to the fluidity of political sentiments that existed during the revolutionary period. The conferring members being met, let their business be to frame a Continental Charter, or Charter of the United Colonies; (answering to what is called the Magna Charta of England) fixing the number and manner of choosing members of congress and members of assembly . . . and drawing the line of business and jurisdiction between them: (always remembering, that our strength is continental, not provincial) securing freedom and property to all men . . . with such other matter as it is necessary for a charter to contain . . . But where, say some, is the King of America? . . . the world may know, that so far as we approve of monarchy, that in America the law is King.117 This quote is remarkable for at least four reasons. It was a call for a continental compact of union between the colonies that would shortly become states. It was a clear reference to the English Magna Carta with its allusion to the rule of law. It announced a continental vision of America as preferable to a provincial, or local, one. This is an endorsement of values that contradict the values of the Pennsylvania Constitution that Paine also supported. 118 And, Paine emphatically denies the legitimacy of the office of the monarchy and declares that no individual, or group of individuals, is above the law.119 Thomas Paine, Common Sense, January of 1776. This quotation appeared in Edwin S. Corwin The Higher Law Background of American Constitutional Law. Harvard Law Review 42 (1928): 149. Italics are mine. Scott Liell, 46 Pages: Thomas Paine, Common Sense, and The Turning Point to Independence (Philadelphia: Running Press, 2003). Liells narrative on Common Sense is illuminating in placing Paines work in the time of 1776. 118 The values of the 1776 Pennsylvania Constitution paralleled the local control of the Articles of Confederation and not the continental government values inherent in the United States Constitution.
117

This is noteworthy because Thomas Paine was a radical Pennsylvania Whig who supported the radical 1776 Pennsylvania Constitution. The vision of this document was very different than that discerned in the 1787 United States Constitution. A local vision of control was a sentiment valued by the Pennsylvania radicals. Moreover, the value of
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Most historians and political scientists agree that Common Sense turned the tide to independence and to the creation of a new nation and its eventual national constitution. The point of this is to underscore the fluidity of the times in revolutionary Philadelphia arguably the center of the independence movement in 1776. The events in Philadelphia, and the other states, provided the crucible of experience that guided the path of the framers to the 1787 Constitutional Convention. The resultant United States Constitution consists of a general statement of purpose or preamble, six articles outlining the structure of government and the limitations thereof, a seventh article enumerating the manner in which the document should become law of the land. In 1791 ten amendments, or a Bill of Rights, was added in order to declare the individual liberties of the people. What is not in the text of this constitution is the subject of this chapterhow the Framers solved the problem of creating an efficient fundamental law structure that would allow a beneficent civilization to flourish on the North American continent and protect individual liberties at the same time. Simply put, the problem was how to set up a society where the people were protected from each other and from the government so that they might consent to promote the common good. The philosophic foundation of the founding documents of the Declaration of Independence and the United States Constitution resides in natural law.

legislative supremacy defining the rule of law was evident in actions taken by the radical dominated Pennsylvania Assembly. For Paine to make this statement supporting a nationalistic vision punctuated by the rule of law is something to remember when considering the tumult of this period of time. Cecelia M. Kenyon Where Paine Went Wrong. The American Political Science Review 45 (1951): 1086-1099. Kenyon explains that Paine had the goals right but missed the means to such ends. In supporting democratic rather than republican institutions, Kenyon posited where Paine went wrong. 81

A look at the Declaration of Independence is instructive in that the Constitution is really the fulfillment of its promise: We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.120 The values embedded in the Declaration of Independence were derived from the traditions of natural law. Man exists in a state of nature created by the Author of the Universe until men band together to form a society and government for their mutual edification. All law is derived from the laws of nature.121 One powerful example would be the notion of doing to another what you would have done to you. This is such a basic assumption of human interaction that it appears in different forms throughout civilizations. Because man is a law-breaker, governments are formed to protect against their neighbors and resolve conflicts among themselves. If every one adhered to this basic natural law, there would be little need for the volumes of governmental decrees that exits today.

Independence Hall Association in Philadelphia. The Declaration of Independence. Accessed Aug. 10, 2006. http://www.ushistory.org/declaration/document
120

Frank H. Knight Natural Law: Last Refuge of the Bigot. Ethics 59 (1949): 127-135 for an edifying and grounding philosophical discussion of religion and natural law and why it is paradoxical enough to be used for either virtue or licentiousness.
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The emergence of reason and deism, apparent in John Lockes Second Treatise on Civil Government, influenced the writers of the Declaration of Independence and the Framers of the Constitution. Lockes work was in the libraries of most, if not all, influential political theorists of revolutionary America.122 Jeffersons debt to Locke is well known. The framers of the Constitution were similarly familiar with Locke and other Enlightenment thinkers. The framers of the Constitution chose republicanism as a framework to explain and preserve the development free institutions that were gestating in the soil of the North Atlantic British colonies. From the Mayflower Compact to Penns Frame of Governments, to the revolutionary war state constitutions, to the Articles of Confederation, Americans were learning by experience of what worked and what did not as they built their civilization in the new world. During this time until 1763, the British imperial policy allowed the colonists much leeway, or freedom from statute enforcement, to effectively self-govern. This circumstance, termed salutary neglect by historians, was a major factor in the failure of imperial reform and the eventual colonial rebellion. Republican free institutions were chosen to continue the growth of American society, albeit on the colonists terms rather than those of Parliament and George III. The enactment of free institutions as the best way to protect individual liberties was a key focus of the American revolution. The best way to achieve these goals was not immediately known or agreed upon at the time of independence. The question was how to achieve and protect the consent of the governed? The Framers may have differed on Jerome Huyler, Locke in America: The Moral Philosophy of the Founding Era (Lawrence, KS: University Press of Kansas, 1995). Huylers reconstruction of Locke-ian philosophy and subsequent influence on the American enlightenment mind is instructive to period cosmology.
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the means to achieve a common end but one major aspect of their thinking was the same. Their ideological dilemma should be illuminated by experience and not solely by theoretical and abstract representations.123 The best way to classify this dilemma is to juxtapose two competing forms of republicanismclassical republicanism and American enlightenment republicanism. Classical republicanism is well described in many texts. Perhaps the most popular text of the time under investigation was Baron Montesquieus Spirit of Laws. This book was reputed to be as popular as Lockes Second Treatise. Montesquieu, a continental European, had only experience with relatively small republics; that is, republics that covered a small geographical area. European states generally were the geographic size of one of the American states. Montesquieu postulated that a republic could only be stable over a small geographical areamuch like the nations comprising continental Europe. This was a type of local, or provincial, government control, that Americans were familiar with as citizens of separate colonies. This fact is seen in the first state constitutions and the Articles of Confederation with its basis of state sovereignty and legislative supremacy. The prevailing wisdom of the time dictated that a successful republic could not exist in a Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (New York: W.W. Norton & Company, Inc., 1965) for a description of how history and enlightenment thought influenced the American founding. Important Whigs such as Jefferson, Adams, and Franklin are highlighted. For a illuminating portraiture of perhaps the most important pre-independence legal thinker, see Gregory S. Ahern, Experience Must Be Our Only Guide: John Dickinson and the Spirit of American Republicanism, (PhD diss., The Catholic University of America, 1996). Ahern echoes the thesis of Colbourn by focusing on Dickinsons realization that social order is discernible within the history of a peoples compacts, covenants, and statutes governing their society. This historically pragmatic approach to nation building was perhaps the Framers key to success in erecting and enacting the United States Constitution.
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large geographic area. If a successful, continental union was to be erected upon republican free institutions, then a new, or evolved, definition of republicanism needed to be revealed. American enlightenment republicanism was the answer to this dilemma of how to structure a stable republic over a very large geographical area.124 This was why the framers wanted the American people to shift sovereignty from the states to the people of all of the states thereby creating a single, organic nation and not a league of independent republics. The question of how to establish and maintain societal order, or ordered liberty, for the people and their posterity over an entire continent was the salient issue. Another way to phrase this is how to best protect individual liberties that would guarantee the order of American civilization.125 James Madison, called the Father of the Constitution, used the light of experience to illuminate his steps on the path to discovering how to reconcile the many interest inevitable to a large and diverse geographical area.126 He wrote a relatively short essay that postulated that if one turned Montesquieu-ian theory on its head, then the answer was The term, American enlightenment republicanism, is mine but also has been termed Madison-ian republicanism in various secondary sources of the American revolution. See also Adrienne Koch, ed., The American Enlightenment: The Shaping of the American Experiment and a Free Society (New York: George Braziller, 1965) for an informative anthology of the period writings of Benjamin Franklin, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, et al.
124

Historian Richard A. Gerber has coined the term rights for order that encapsulates this idea. Gerber uses this term primarily in discussions a century later of the American Reconstruction, but the concept is equally applicable to the revolutionary era. Richard A. Gerber Liberal Republicanism, Reconstruction, and Social Order: Samuel Bowles as a Test Case. The New England Quarterly 45 (1972): 393-407.
125

Hamilton, The Federalist, 53-61. Madisons Federalist #10 is the definitive primary source of the emergence of the coherent theory of orderly republicanism over a continental geography.
126

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that the many competing interests over a large area would effectively counter-act one another thereby avoiding demagogues consolidating different interest into power and effecting tyranny.127 In fact, Madison believed that the larger the geographic area, the better!128 Another fundamental fact of the United States Constitution was the location of sovereignty of who was to be the ultimate political authority of the United States. The revolutionary war national compact, the Articles of Confederation, located the sovereign as the states in Section II., each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, . . . The United States Constitution located, or re-located as some might say, the sovereign in the people as revealed in the Preamble, We, the people of the United States, . . . do ordain and establish this Constitution for the United States of America. 129 Locating the sovereign in the people of all the states effectively limited the power of the state legislatures with their propensity to define the rule of law and opened the way to make the law king by institutionalizing constitutional structures such as separation of powers, an independent judiciary, and enumerated rights or civil liberties. Having arrived at this point in this discussion of the 1787 United States Constitution, the most prudent thing to do now is to see how this chapter relates to the The Framers knew that this was a prime reason for the fall of the Roman Republic.

127

Madisons theory was proven correct as seen by the success of American civilization and the longevity of the U.S. Constitution. Conversely, one cannot over emphasize the fact that, at the time of the founding era, Madison-ian republicanism was an unproved theory.
128

Here is the definitive primary source documentation of the transfer of American sovereignty from provincial to continental or from each individual state to the people of all of the statesa monumental difference.
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overall thesis of this essaythat the Articles of Confederation were not weak but that the government under the United States Constitution could better protect individual liberties. In other words, the idea of government closest to the people protecting them the best gave way to the vision that a more centralized government might be far more efficient in protecting minority rights. It should also be mentioned that the Constitution was not an isolated intellectual bonus conferred upon mankind by political saints. The Constitution was the endpoint of a thread of Anglo-American constitutionalism that originated in England, came across the Atlantic Ocean and took root in the soil of British North Atlantic Whiggism. 130 Another description might be the Constitution was the embodiment of the evolution of constitutionalism that found an expression in the fertility of the American enlightenment mind. A common theme to the lineage of American constitutionalism is the notion of rightsnatural rights, unalienable rights, rights, rights, and more rights. The English Constitution was equally as concerned with rights. The problem was that the time had
130

Consider the lineage of the United States Constitution: 1215 The Magna Carta 1620 The Mayflower Compact 1639 The Fundamental Order of Connecticut 1643 The Articles of Confederation of the United Colonies of New England 1682 William Penns Charter of Liberties 1689 The English Bill of Rights 1701 The Pennsylvania Frame of Government 1754 The Albany Plan of Union 1765 The Resolutions of the Stamp Act Continental Congress 1774 The Suffolk Resolves 1776 The Declaration of Independence 1776 The 1776 Pennsylvania Constitution 1777 The Articles of Confederation and Perpetual Union (ratified in 1781) 1780 The Massachusetts Constitution 1787 The Northwest Ordinance 1787 The Philadelphia Constitutional Convention 87

come when the English were evolving to a constitutionality where the sovereign resided in Parliament and the Americans resisted this change. Hence, the British North American colonists have been said to be looking backward, or nostalgic, toward a happier time of a government that was defined by the rule of law; not a Parliament that had come to defining the rule of law. This fact can be most clearly seen in 1774 with the passage by Parliament of the Coercive Acts. These proclamations interrupted the colonists right to a trial by jury and deprived them of their property without redress. Clearly, this was rule by a group of individuals regardless of their claim of legitimate representation. The Americans ultimately decided that their sovereign would not create rights, but would be limited by rights. This sovereign, the people of the United States, would be created by fundamental law and be the ultimate guardian of their civil liberties. The Constitution was the mechanistic apparatus that limited the sovereign government when it endangered liberties. Thereby rights, and not government as the peoples servant, would be best protected.131 The American Whigs who labored during the founding of the United States began with a preference for local control. These values can be seen in the revolutionary war state constitutions and the Articles of Confederation. Men such as John Adams saw that these documents did not act upon individuals but acted directly upon corporate units, such as states or towns. Statements from towns, such as the Essex Result as seen in John P. Reid, The Authority of Rights: Constitutional History of the American Revolution (Madison: The University of Wisconsin Press, 1986): 236. Reid offers an authoritative legal analysis of the dynamics occurring during the dispute of the British Empire and her colonists. James R. Stoner, Jr., Common Law & Liberal Theory: Coke, Hobbes, & The Origins Of American Constitutionalism (Lawrence, KS: University Press of Kansas, 1992). Stoner convincingly augments Reids thesis that American constitutionalism had it roots almost solely in English tradition; not in Scottish or continental European thought.
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another chapter, expressed dissatisfaction with this traditional Whiggism and demonstrated how Whig theory might morph into an ideological underpinning for a continental union. The new Whig theory recognized that there needed to be a fundamental law document that acted directly upon individuals. A government that did so through the checks of mixed government and judicial review might combine the stable aspects of republicanism and not incorporate its instabilities. Some might say that North American Whiggism transformed itself.132 Its new name was American federalism as outlined in the United States Constitution. It is instructive to relate the structures or ideas of the United States Constitution with the 1780 Massachusetts Constitution. Both fundamental law documents saw to it that the rule of law would never be overruled by legislative fiat. In other words, the rule of law would never succumb to legislative supremacy. The American constitution would not follow in the path of the English constitution. The doctrine of legislative supremacy implicit in Parliaments proclamations that usurped American civil liberties would never occur under American fundamental law. The most propitious device to achieve this outcome was in fashioning a structure of national government that clearly enumerated a separation of powers. This device, as noted before in the 1780 Massachusetts Constitution, had as a consequence that it would be a government of laws and not of men. This doctrine of the separation of powers, or the rule of law, appeared several times in the text of the 1780 Massachusetts Constitution. The clear enumeration of the separation of powers also is obvious within the text of the 1787 United States Constitution. J.R. Pole, The Idea of Union (Alexandria, VA: The Bicentennial Council of the Thirteen Original States Fund, Inc., 1977): 73-76.
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By announcing sovereignty as residing in the people of the United States, the national constitution recognized the social contract emphasis of all of the people of varying corporate units to be one, or a union of one people. This echoes the basis of sovereignty that existed in the 1780 Massachusetts Constitution where all of the people of the different counties, towns, and churches were as one. This fact of sovereignty also enabled the two constitutions to be able to act upon individuals as well as corporate political units. Both constitutions shared a similar vision in terms of representation. In Massachusetts, the middle and western counties had different issues than did the eastern counties. While the differences were not as pronounced as would be the sectional differences between the New England and the Southern states, the different concerns of the Massachusetts counties had to be addressed. Adams solved these dilemmas by giving something to everyone. One example is that of the qualifications for the Senate and the House of Representatives. The upper classes were mollified by the Senate qualifications and the masses were happy to have their representatives held to a more democratic requirement. The Philadelphia Convention had to solve a similar problem. How to satisfy the demands of the states with relatively small populations with the desires of the larger, more populous states? Again, the use of an upper and a lower house was useful as a compromise. However, on a national scale, the mechanism of the electoral college as the institution that elected the chief executive of the country satisfied the anxieties of the smaller states on the issue of representation.

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The parallels between the 1780 Massachusetts Constitution and the 1787 United States Constitution are clear: primacy of the rule of law, clear description of the structure of government, and an institutional balancing of power that provided the ballast for the creation and protection of free political institutions. It only remained for a separate Bill of Rights to be amended to the 1787 United States Constitution for the final parallel to be in place.

\ CHAPTER 6CONCLUSION

All lawful authority, legislative, and executive, originates from the people.133 Nature, like Liberty, is but restrained but by the same laws which by herself ordained.134 University of Chicago Press Books Division. Popular Basis of Political Authority, James Burgh, Political Disquisitions. Accessed March 21, 2011. http://presspubs.uchicago.edu/founders/documents/v1ch2s6.html
133

Project Gutenberg. An Essay on Criticism by Alexander Pope, 64. Accessed March 23, 2011. http://www.gutenberg.org/ebooks/7409
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We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator with certain unalienable rights that among those are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it . . .135 . . . those deluded People.136 The goal of the Philadelphia Convention in 1787 was to create a framework of government that would enable the new republic to survive without sacrificing the peoples liberties. Why have fought and bled to be free from arbitrary control and not guarantee free institutions in practice? The experiment with state constitutions and legislatures conclusively demonstrated that there needed to be more attention paid to Thomas Paine than to Patrick Henry. Indeed, Common Sense obliterated the myth of the perfection of the British constitutional system by calling for the abolition of heredity rule and the institution of a continental, not provincial, government. . . . those deluded People entered the Philadelphia Convention with a new framework of government in mind. If the states were to become subordinate to the central government, then the old argument of the revolution manifesting itself in the state legislatures would have to give way to the paradigm change of the national government better protecting individual rights than the states. This essential justice necessarily entails the notions of natural law, popular sovereignty, and judicial independence.

135

Declaration of Independence of the United States of America, 1776.

attributed to King George III in R.R. Palmer, The Age of the Democratic Revolution: A Political History of Europe and America, 1760-1800 (Princeton: Princeton University Press, 1959): 212.
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The men at Philadelphia in 1787 were students of political history. They allowed the light of the fire of the war for independence to guide their steps as they attempted to ameliorate human nature. James Madison and others were clear in their admonitions regarding mans passions. This was not to say that man was not capable of virtuous acts, but that man was at least equally capable of avaricious behavior. How to guard the people against themselves was the overriding political mystery. One could pose the counter-argument that the state legislatures, being the geographically close representatives of the people, were the more democratic choice to protect the peoples civil liberties. The problem with this argument is that by 1787 the 1776 revolutionary war paradigm of the sovereignty of the state legislatures had given way to the idea that the national government could perhaps better serve and protect the people than could the individual states acting alone.137 Madisons Federalist #10 was instructive here as he outlined how the new government was an essential commitment to

John Adams, Defence of the Constitutions of the United States, Volume I (New York: Da Capo Press, 1971): xv-xix. In 1787 Adams wrote, The United States of America have exhibited, perhaps, the firft example of governments erected on the fimple principles of nature: and if men are now fufficiently enlightened to difabufe themfelves of artifice, impofture, hypocrify, and fuperftition, they will confider this event as an era in their hiftory. . . it will for ever be acknowledged that thefe governments were contrived merely by the ufe of reason and the fenfes. . . Thirteen governments thus founded on the natural authority of the people alone, without a pretence of miracle or myftery, which are destined to fpread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind. . . The inftitutions now made in America will never wear wholly out for thoufands of years: it is of the laft importance then that they fhould begin right . . (Note that, except for the end of a word, the letter s was written as f in 1787. Therefore, fimple is to be seen as simple and difabufe is to seen as disabuse, etc.) This three volume treatise is a scholarly history of government from ancient Greece to the 1787 United States Constitution produced by the Philadelphia Convention. Defence is also a portal into the mind of the man who wrote the 1780 Massachusetts Constitution and as such became a shadow author of the United States Constitution.
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equal rights.138 In short, the democratic state legislatures became the tyrannical legislative majorities that needed to give way to the democratic even-handedness of the national government. The political authority of the Revolutionary War had a social basis of classical republicanism as a requirement for order. The new Federalists came to institute a new republican constitutional paradigm enshrined in the United States Constitution.139 The historical fact that the United States Constitution was ratified in 1788 is not sufficient proof of this essays thesis. Neither are clever words on paper that purport to summarize an important historical event. The main proof of this thesis hinges on the following facts: (1) the war-time exigencies of the new nation required the states to band together and fight to survive, (2) the first, or war-time, state constitutions were essentially continuations of governance that existed before independence from Great Britain, (3) the experiences of the leaders of the states and the confederation clarified the meaning, and the possible solutions, of the differences between state provincialisms and continental visions, (4) the framers saw the tendencies of legislative supremacy coming forth in constitutions without proper balance and a clear definition of the people as the ultimate sovereign. Surviving the War It should be noted here that Madisons arguments in Federalist #10 were not available to those in the 1787 Philadelphia Convention. The Federalist Papers, where #10 first appeared, were created to influence public opinion after the Philadelphia Convention produced a new constitution to be ratified by popular conventions specific to that purpose.
138

Paul Ferrino and Timothy Grivalsky, The Framers Intent: The Judiciary, An Investigation into the Origins of Judicial Review During the Early Republic Period of the United States of America (Paper presented in partial fulfillment of His553: The Early Republic 1763-1826, Southern Connecticut State University Graduate School, 2005): 3537.
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After the outbreak of fighting at Lexington and Concord, there was not much hope to a cease fire without either painful concessions or victory. In 1774 or 1776, no one knew what the outcome of the war of independence would be. This is the bedrock fact to consider when evaluating this essay. The fact that those in the future know the outcome of historical events tends to distort historical understanding. That the Americans were fighting against the worlds hegemonic military power meant that the odds were not in their favor. The first years of the war bore this out. General Washington was losing more battles than he won. In addition, the Continental Congress was having difficulty meeting war material needs. Considering the above, it is fair to say that the war for independence needed to be won. After the Coercive Acts of 1774, many leading Americans saw the writing on the wall. The English Constitution was changingno longer was Parliament subject to the rule of law. Parliament was now defining the rule of law, or succumbing to the doctrine of legislative supremacy. This can be seen in the loss of the colonists common law rights to a trial by jury of peers. It can also be seen in the loss of American individual property by legislative fiat. The imminent presence of a standing army was dangerous. Most importantly, it can be seen in the Parliamentary decree denying the Massachusetts Bay colonists their traditional self governing institutions. Therefore, the issue among the colonial leaders was not really about home rule; the Coercive Acts took care of that. The issue became more about who, or what ideology, was to rule at home. One could say that the war for independence was really a fight to retain the old English Constitution, with its constituent protections of colonial liberties, or

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to succumb to the new English Constitution with Parliamentary policies allowed to decide the liberties of the people. After the 1776 Declaration of Independence, the absence of imperial authority created a vacuum. A new system of government had to be instituted. The Americans fell into two main camps on this issue. The first was to seek governance that was limited and local. The other was to envision a broader and more energetic centralized government. As the former colonists had just thrown off the shackles of perceived centralized tyranny, it is logical that the first forms of government would be relatively local in authority. The chapters on Pennsylvania and the Articles of Confederation bear out this fact. A union of the states needed to be established to promote respect and recognition for the new nation. Without foreign recognition of at least one major power, the chances for a successful rebellion were not high. Whatever sensibilities one had, unity was a must for survival. The Articles of Confederation were created for just that purposeto create a union of sovereign entities that appeared to function well enough to secure the confidence and good will of the international community. The Articles of Confederation accomplished that crucial task. That the Articles were successful was borne out by the fact that France recognized the United States of America as a sovereign nation within the family of nations. Moreover, the French backed up this recognition with aid that was important to American war aims. It is also important to realize that the Confederation Congress under the Articles of Confederation was successful in solving a crucial domestic challenge as well. This is reference to the problem, which the British Empire could never solve, of how to integrate the western lands into the original states. This was a huge problem as the western

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frontier was essentially a contentious international border and, at the same time, was a source of friction and dissension among the original states. The Northwest Ordinance of 1787 provided the solution. If only for this one piece of legislation, the Articles of Confederation was an unmitigated success. It follows that characterization of the Articles of Confederation as weak prevents a nuanced interpretation of the time under investigation. Another major accomplishment of the Congress under the Articles of Confederation was the 1783 Treaty of Paris. Two years after the formal ratification of the Articles in 1781, the British sued the Americans for peace. The Americans had won their freedom and the British now recognized them as an independent nation. The answer to the crucial question of 1774 and 1776 had finally been answeredthe United States of America had survived. It was now 1784 and the American leaders could now concentrate more attention to the debate between a provincial or a continental vision of Americas future. A powerful collection of political elites in Virginia formed The Constitutional Society on June 15, 1784.140 The signatories on a broadside announcing the formation of the Society included people such as James Madison, John Blair, Edmund Randolph, Patrick Henry, Richard Henry Lee, John Taylor, and James Monroe, et al.141 Not much is known about the

Margherita Marchione, ed., Philip Mazzei: Jeffersons Zealous Whig (New Jersey: New Jersey American Revolution Bicentennial Celebration Commission, 1975): 110-112. Also J. G. De Roulhac Hamilton A Society for Preservation of Liberty, 1784. The American Historical Review 32 (1927): 550-552. C. E. McGuire A Society for Preservation of Liberty, 1784. The American Historical Review 32 (1927): 792-793.
140 141

The broadside is at the Virginia State Library.

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activities of the society but its inception at this particular time is most curious. A very interesting fact was that men of different political leanings were gathering; for the purpose of preserving and handing down to posterity, those pure and sacred principles of Liberty, which have been derived to us, from the happy event of the late glorious Revolution, and being convinced, that the surest mode to secure Republican systems of Government from lapsing into Tyranny, is by giving free and frequent information to the mass of people, both of the nature of them, and of the measures which may be adopted by their several component parts; have determined, and do hereby most solemnly pledge ourselves to each other, by every holy tie and obligation, which free men ought to hold intentionally dear, that everyone in his respective station, will keep a watchful eye over the great fundamental rights of the people.142 It is perhaps more than a coincidence that three years later a national constitution was hammered out in a somewhat secretive society meeting in Philadelphia along much of the same lines as discussed in meetings of The Constitutional Society. The Tradition of American Constitutionalism We have seen examples of the dichotomy of which form of republicanism would rule at home in the United States. The classical republican view was typified by the Commonwealth of Pennsylvania and its 1776 Constitution. The newer, more innovative republican structure was seen in the 1780 Massachusetts Constitution and the United States Constitution. Both republican views have been reported within this essay. And both republican structures were born of the traditions of the political history and culture of its respective state. What happened that Pennsylvania chose legislative supremacy and the Massachusetts fundamental law held the rule of law inviolate to legislative fiat? And, what explains the parallels of the Articles of Confederation with the 1776 Pennsylvania Constitution and the similarities between the 1780 Massachusetts Constitution and the United States Constitution?

142

Marchione, Philip Mazzei, 110. 98

A quantitative answer would be to examine the structure of the government enumerated with the constitutions. Pennsylvanian government required a unicameral legislature with no real separation of powers between a council executive and a dependent judiciary. The Articles of Confederation stipulated that sovereignty, and ultimate power, resided with each state. The structure of Massachusetts government mandated a strict separation of powers between a distinct executive branch, an upper and lower house legislature, and an independent judiciary. This was mirrored in the United States Constitution. This difference of the notion of the separation of powers determined the position of the legislature relative to the rule of law. Simply put, strong separation of powers established the rule of law ascendant to statutory law, and a weak separation of powers allowed legislative policy to decide the position of the rule of law. A way to better understand this concept is to examine the notion of the separation of powers within the classical republican explanation of Baron de Montesquieu. Montesquieu, in the Spirit of Laws, essentially explained the success of England as a compatible blend of monarchy, aristocracy and the polis. This balanced government, with the separation of powers predicated upon class status, was fully functional for British and continental European societies. This is understandable due to the tradition of medieval times and how the Renaissance and Reformation was underscored by the geographical realities of a large population subsisting on a paucity of land. However, Montesquieu believed that the highest form of classical republicanism was democratic in nature, as in the 1776 Pennsylvania Constitution. The aristocratic form of classical republicanism, as found in the unwritten English Constitution of the seventeenth century, worked well for Great Britain and perhaps not so well for its

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colonies. A key component to Montesquieu-ian republicanism was in the corporate operation of government as opposed to the individual. Jean-Jacques Rousseau wrote On the Social Contract in 1762, about the time as the publication of The Spirit of Laws. According to G. D. H. Cole, Montesquieu took laws as they were and saw what sort of men they made: Rousseau, founding his whole system on human freedom, took man as the basis, and regarded him as giving himself what laws he pleased . . . making the will of the members the sole basis of every society.143 Rousseaus viewpoint did not take into account the views of the few, or the minority, and ultimately did not transplant well to America. It has been said that this is the difference in continental and new world liberalism. In Europe, there is egalite and in America, the emphasis is on liberte. Or, corporate emphasis with classical republicanism in Europe and individual emphasis within the new republicanism in America.144 A reminder about Massachusetts society is instructive here. Puritan society as social contract was based on strict religious heterodoxy. The corporate unit of the church and the town was what the early Puritan governments acted upon. The individual was subordinate to the corporate unit. After the Salem Witch trials and then the Great Awakening, Massachusetts society slowly pluralized with the greatest assimilation taking place in the coastal counties. When the pivotal Coercive Acts of 1774 were proclaimed, the abrogation by Parliament of the General Court caused the counties and towns to demand a written colonial government as a constitution that would act upon the Drew Silver, ed., Jean-Jacques Rousseau: On The Social Contract (Mineola, NY: Dover Publications, Inc., 2003): iii.
143

Louis Hartz, The Liberal Tradition in America (New York: Harcourt, Brace & World, Inc., 1955).
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individual in addition to the counties and towns. The town meetings at Pittsfield and Essex were instrumental to the formulation by John Adams of the ascendancy of the rule of law as revealed in an American definition of the institution of the separation of powers. In addition to the rule of law, an emphasis on individual rights was another consequence of imperial tyranny of 1774. The Lamp of Experience Trevor Colbourn wrote an illuminating book about how the American Whigs used their historical erudition to guide them through the uncertainty of the revolutionary era.145 A consideration of historical Whig positions on individual liberties is instructive here. Colbourn wrote a brief description of Josiah Quincy, Jr., a young lawyer who served as an assistant to John Adams in the Captain Prescott trial of the Boston Massacre. Quincys father saw to it that his son had access to old English books that venerated liberty. Whig thinkers such as John Locke, Thomas Gordon and John Trenchard, Algernon Sidney and Lords Coke and Blackstone were all read by Quincy, Jr.146 Rather than only focusing on the moral issues of liberty, Quincy took the lessons of standing armies in ancient Rome as a dire warning. The Quartering Act provision of the Coercive Acts signified irrefutable evidence of the menace of Parliamentary tyranny. This was a spotlight to the path of the Americans in 1774 as they milled about in the uncertainty of the mid-eighteenth century.

Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Chapel Hill, NC: The University of North Carolina Press, 1965). Herbert Butterfield, The Whig Interpretation of History (Harmondsworth, UK: Pelican Books, 1973).
145 146

Colbourn, Lamp of Experience, 78. 101

The British commonwealthmen had much to teach the Americans. The lesson of an enumerated bill of rights was such a lesson learned. Evidence of this is the inclusion of a declaration of rights within virtually every first American state constitution. A good example of this enumerated rights tradition took place in 1774 in response to the Coercive Acts. The First Continental Congress adopted a resolution on October 14, 1774 known as the Declaration and Resolves of the First Continental Congress. Germane to this essay is the inclusion within this document of a colonial bill of rights. It is crucially important to understand that the Americans were protesting an encroachment of their constitutionally guaranteed civil liberties by a Parliament that was seen as acting unconstitutionally via the Coercive Acts. In essence, this was the crux of the disagreement between the empire and its colony. The Americans were protecting the old English Constitution that did not recognize the arbitrary power of a legislature above the rule of law and individual liberties. The British Empire was protecting the new English Constitution that recognized the prerogative of Parliament to make laws benevolent enough to adjust, however subtle or overt, the rule of law over individual rights. The American continental response of the bill of rights within the resolves contained the following references to the common law guarantees of individual rights. This meant that the rights enumerated thereof were entrenched and could not be altered or removed by statutory, or positive, law: 1. That they are entitled to life, liberty and property; and they have never ceded to any foreign power whatever, a right to dispose of either without their consent. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.

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3. that by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy. 4. That the foundation of English liberty, and of all free government, is a right in the people t participate in their legislative council; and as the English colonists are not represented, and from their local and other circumstances, cannot be properly represented in the British Parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures . . . 5. That the respective colonies are entitled to . . . being tried by their peers . . . 6. That they are entitled to . . . the benefit of the English statutes . . . found to be applicable to their several local and other circumstances. 7. That these, his Majestys colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters . . . 8. That they have a right to peaceably to assemble . . . 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony . . . is against the law. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous and destructive to the freedom of American legislation.147 This assertion of the English constitutional rights of colonial Englishmen was clear and to the point. The Americans were saying that they wanted to continue to enjoy their constitutionally protected rights as Englishmen. The powers in London decreed that Parliament decided those matters. Civil war was the result. After independence was declared and the first state constitutions were drafted, including the Articles of Confederation, it has been shown that the initial response was to favor local government. The classical republican model was comfortable and it worked. This is what was needed in 1776. What the Americans did not yet fully realize was that the war for the best protection of individual rights was also being fought among patriots to the American cause. Quotations seen Reid, Constitutional History, 203 and in the text of the 1774 Declaration and Resolves of the First Continental Congress.
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It has been demonstrated that the notion of legislative supremacy among the first state and national pacts resulted in instances of arbitrary power overcoming the rule of law and individual liberties. Recall instances in Pennsylvania where private contracts were abrogated by legislative fiat. Similar arbitrary actions by various state legislatures, the sovereign within the Articles of Confederation, signaled a similar appearance of instances of legislative supremacy in American republican government. Something akin to Parliamentary sovereignty was solidifying in American government. The written bills of rights in the state constitutions were in contradiction to this encroachment of civil liberties. Would the Americans allow themselves to become slaves to legislative sovereignty? Or would they continue to fight to win the battle for the constitution of limited government and of property in rights that had once been the English constitution?148 Today we know the answerindividual liberties are bound in fundamental law within the American constitutional system. The legislative tyrannical tendencies lurking within the systems emphasizing local control and classical republicanism are not harmful once experience has shown the people and their leaders the way. This is why the Articles of Confederation should properly be seen as a successful war-time document that was helpful to the people of the United States of America during a difficult time. To view, or dismiss, the Articles of Confederation as a weak document obscures fundamental understanding of perhaps the most important period in the nations history. It would seem perfectly logical to assume that local government closest to the people could best guarantee their hard-won liberties. On the contrary, the lesson learned by the Framers was that the best place to secure the

148

Reid, Constitutional History, 237. 104

peoples rights was in the hard-to-change fundamental document itself, created and consented to by the ultimate sovereign, the people of the United States of America.

BIBLIOGRAPHY

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