The Patriot Post® · Marching Forward to 'We the People'

The Articles of Confederation had to go! But how were the Founding Fathers going to address the shortcomings of their first attempt at self-government and increase the power of the national government while protecting the semi-independence of the states and the rights of individuals? There was no “cut and paste” document that would help them, but they did find a wealth of ideas in the newly created state constitutions.

With the American Revolution, the old charters allowing settlement and creating a colony status were void. Each of the colonies — states once the Articles had been signed — found themselves in a “state of nature” and had to write their own constitutions. As each struggled with the implementation of the basic ideas of natural rights, constitutional authority, and republicanism, the documents they would create would ultimately impact the next step in self-government for the United States of America.

So, what concepts would you find in those early state constitutions if you were browsing the archives?

• Every state constitution drew in some way on John Locke’s concept of a social contract. In his Two Treatises of Government, published in 1689 during the English Glorious Revolution, Locke advanced the idea that government is created to preserve and protect citizens’ natural rights to life, liberty, and property.

• Sovereign authority rested with the people, and most included a statement that the power to govern was “delegated” to the government by the people.

• The writers of the state constitutions struggled with the concept of who “the people” actually were. Would all people get the right to vote? No. Would all men be allowed to vote? Interesting proposition. Would there be a property requirement that would trigger the right to vote? Yes, in some states. What about free blacks and native peoples? In seven states, if they met the property requirements, they were granted the right to vote. Twelve of the states specifically denied women the right to vote by referencing voters as “males” of full age.

• All states had some form of separation of power and relied on the state legislatures with votes based on majority rule to protect the rights of citizens. Beginning in the colonial period with the advent of strong legislative bodies, like Virginia’s House of Burgesses, the people preferred local, representative government where issues such as taxation, land grant polices, etc. could be settled by men most familiar with the questions. With citizens controlling their “representatives” by the vote, most were comfortable with the concept of legislative government.

• The question of executive and judicial authority created intense debate. Their experience with royal governors had taught them that the people had less control over the executive once he had gained power by appointments and political persuasion. They were united in their suspicion of the judiciary branch, as their experience had found the British courts dismissive of their pleas and logical arguments.

• Some of the new states required all major appointments by the governor to be approved by the legislature.

• All 13 states eliminated the “absolute veto” by the governor by allowing the legislature to override his veto by passing the law again.

• Each state maintained some control over their courts by allowing the legislatures to control salaries and determine the length of term.

So, the state legislatures seemed to have the majority of the power. What safety features did the state constitutions include to protect the abuse of power? Now we meet the early forms of “checks and balances”!

Most of the checks actually resided in the creation of the legislatures. In 11 of the new states, the legislatures were divided into two houses, each comprised of representatives elected by the people. Additionally, voters could check the legislators’ power by voting for new representatives if the seated reps did not follow the will of the people.

One state constitution created a government where each branch could “check” the others, allowing for balance of authority and power.

John Adams was the primary author of Massachusetts’s constitution, and his attention to the “rule of law” and the “rights of the individual” provided more power balanced between the legislature and the governor while also creating a plan where one group of people would be unable to totally dominate state government.

In Massachusetts’s constitution, the governor was elected by the people but given specific powers that allowed him to check the legislature’s power. His salary was fixed and could not be changed by the legislature. He had the authority to veto acts of the legislature, and it could only override his veto with a two-thirds second vote. Additionally, the governor could appoint his staff and judges to the judicial branch.

Perhaps the most interesting feature was the acknowledgment that government was often dominated by the rich and powerful. The Massachusetts constitution attempted to balance power between all socioeconomic members of society by allowing the wealthiest voters, based on property ownership, to elect the governor, and the more “middle class” citizens to elect members of the upper house of the legislature, while there were minimum property requirements to vote for members of the lower house. Embracing the classical idea of republicanism, Adams hoped to avoid an abuse of power.

What about protection of individual rights?

We’ll examine the state constitutions next time for hints as to how the delegates to the Constitutional Convention might approach that critical issue.