The US Constitution, drafted in 1787,
did not write on a blank slate.
The delegates
of the US Constitutional Convention of 1787,
had available to them all kinds of written constitutions
already on the state level.
In fact,
one could make the argument that there's really only one
patentable
innovation in 1787,
and that's federalism,
the idea of splitting the atom of sovereignty
between the national government and the 13 states.
But if you were to look at everything else
in the 1789 document, the 1791 Bill of Rights,
when it comes to the individual rights,
you wouldn't have had a hard time figuring out
where the language came from, where the ideas came from.
This was an extraordinary decade from 1776 to 1787.
It was really the first time that people adopted
for themselves, their own form of government.
It was really the first time in history
that men were in a position to adopt their own
form of government of the people,
as they said at the time.
The very first state constitution
was the New Hampshire State Constitution,
which was written in January 1776,
some six months prior to the Declaration of Independence.
South Carolina followed several months later,
Virginia then followed and New Jersey.
So four of the states had actually drafted constitutions
even before the Declaration of Independence.
And in May of 1776,
a Continental Congress had issued
a very important resolution,
really advising all states to begin drafting
their own constitutions.
And there was live lots of conversation among the colonies
about what should be in a constitution
and what the process should be for adopting
one of these constitutions.
Lots of exchanges of drafts.
These were the days of political pamphlets
that were exchanged up and down the seaboard.
- You normally would've had legislators writing these laws,
what we would think of as statutes today,
that would've been the law that governed everything.
But the key innovation in this era
is the idea that there was this higher law,
this fundamental law,
what became to us today, constitutional law.
The Pennsylvania Constitution of 1776 was not the first
of the state constitutions,
but it was important in a number of ways.
Most importantly,
the Pennsylvania Constitution was the first
of the state constitutions to be framed by a convention
whose members were selected for the express purpose
of drafting a constitution.
The convention would've operated a little bit like
what we would think of as a legislature.
And I think in Pennsylvania's case, it was 96 people.
The 96 people would vote.
And once the 96 people had decided this was gonna work,
the constitution was "ratified" or now created.
It's interesting.
In the midst of all of the rhetoric about
popular sovereignty and government from the bottom up,
of the people,
when this Pennsylvania Constitutional Convention
finished its work,
it simply imposed the constitution in Pennsylvania.
So one would've thought
that there might be three steps.
First, the idea of having a constitution.
Second, voting for the people that were gonna write it.
But then third,
what about letting the people vote
to agree to the constitution,
to ratify it?
And that was not done in Pennsylvania, and in a way,
looked a little hypocritical.
On the other hand,
it was a major step towards the process
of American constitutionalism.
When we look back and say,
"Why didn't the Pennsylvania convention?
Why didn't they take the additional step
of submitting it for popular ratification?"
But from the Pennsylvania 1776 Convention
delegates' perspective,
they would be struck by how much they had taken account
of public opinion
because Pennsylvania's convention
was the first of the states to actually say,
"We are going to write a constitution.
We're gonna call a convention whose delegates,
their one main duty is to write a constitution.
When you vote for these delegates,
keep that in mind that they are going to be writing
a constitution.
Give them input, give them feedback."
And so Pennsylvania's Convention of 1776
believed that they took account of public opinion
and therefore crafted a legitimate document
because of the work that had been done
in the lead-up to the drafting of the constitution.
In 1778,
the Massachusetts legislature drafted a constitution.
So they followed what the Continental Congress
asked them to do,
but it was the legislature that drafted it
and then they put it out for a vote.
And the people at the town meetings voted it down
primarily because it was not drafted
by a separately elected constitutional convention.
There was a lot of distrust.
People had distrust of what happened in Great Britain.
They just had distrust generally.
And they said,
"How are we to be sure
that we might have given our voices and expressed our views
to the people and sent their delegates to the convention
with express belief that they would do the public good.
But how do we know in practice they would actually
uphold the public good?"
The best safeguard is to make sure
that they have to submit their work to the public,
and it is approved by the public.
In Massachusetts, the people,
they had to have conventions and delegates write it,
but they had the authority to approve it.
And that's a really critical innovation
in the state constitutions
and tees things up for the US Constitution,
which is ultimately ratified in 1789,
mainly through ratifying conventions,
mainly following the Massachusetts model
of the people getting a chance to ratify
this federal document.
And so certainly in 1777, 1778,
it became clear that the people of Massachusetts
would only view their constitution as legitimate
if they actually not only had a chance to select the people
who were gonna be drafting it,
but if they had a chance to review the document
after it was approved.
They turned down the first version.
They approved the second version.
There was a steady progression
of the first step,
"Let's have a higher law that would control
the ordinary operations of government first."
And second,
"Let's have people vote for those who are gonna write up
this higher law,
people who are not gonna be running for reelection."
And finally,
"Let's have the people vote whether to accept the product
drafted by those they have sent to do this task for them."
How do you have law over law?
Again, to quote the Massachusetts Constitution of 1780,
written largely by John Adams,
"It was to be a government of laws and not of men."
The period from really late 1775 up to 1787
has this trial and error within the states,
within the state constitutional conventions,
new rights are added to these constitutions,
and in particular,
quite a bit of innovation when it comes to
how the different branches of government will work,
separation of powers, balance of power,
ratification of them.
Then you have this national constitution,
which thank God,
it had a chance to look at these
trial and error experimentations in the states.
This founding decade
from 1776
to 1787,
really does represent an evolution
where ideas were discussed and debated.
And these experiments were watched by people
in the other states
who were considering their own constitutions.
We're often inclined to say,
"Let's study the initial state constitutions
to see what influence they had on the federal constitution."
But I don't think that should be the end of our inquiry
and our focus on the early state constitutions,
because state constitutions are not just a precursor to,
they're not just a testing ground for the US Constitution,
they're also very important in their own right.
They are governing documents for the 50 states today
and seeing how the initial state constitutions were tweaked,
amended, and sometimes replaced on the state level
is worthy in itself.
This founding decade,
when the state constitutions were initially debated,
argued over, adopted, replaced,
still is very important today,
because once we adopted the United States Constitution,
the states continued on their own independent process,
continuing with trial and error
up to today.
We've had over 200 state constitutional conventions,
thousands of amendments to the state constitutions.
That process is still going on today and will continue.