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IDEA OF UNION by Paul Ferrino, MA Thesis April, 2011 SCSU

CHAPTER 1—INTRODUCTION

“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-ism—and 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 America’s 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 America’s future was clearly seen in the 1780

Massachusetts Constitution. The 1787 Constitution of the United States continued this

1 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 investigation—the

period between American Independence and the ratification and implementation of the

American Constitution—approximately 1775-1790. An appreciation that this contentious

political discourse occurred largely during a mortal military battle with the world’s

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 aristocrats—both 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.

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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 Confederation’s demise resting on the document’s

weaknesses is flawed in superficial interpretations of the period’s dynamics.

This confusion may lead to the public’s uncritical acceptance of the expropriation

of the symbolism of the nation’s 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

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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 nation’s 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 control—all 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 theOrigins and Foundations of the American Republic (Lawrence, KS: The Universityof Kansas Press, 2006).

3 Gibson, Interpreting the Founding , Contents page.

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• 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. Beard’s 1913 book, An

Economic Interpretation of the United States Constitution.4 Much was written prior to

Beard’s bombshell, but his essay was the clear seminal beginning of recent modern

“founding” historiography. The first example would be a view of Beard’s 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

4 Charles A. Beard., An Economic Interpretation of the Constitution of the United

States (New York: The Free Press, 1986).

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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

Beard’s methodology and conclusions.

Beard was sandwiched by two other well-known progressive historians, Carl

Becker 6 and Vernon Parrington.7 Parrington in particular became associated with Beard’s

thesis as being influenced by the tenor of their times and an undue emphasis on economic

determinism. Parrington felt that Beard’s 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

5 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).

6 Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas

(New York; Alfred A. Knopf, 1948).

7 Vernon L. Parrington, Main Currents in American Thought (New York: Harcourt,Brace, 1954).

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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 Beard’s essay, Some Economic Origins of

Jeffersonian Democracy. Adair countered Beard’s economic emphasis on the framer’s

motives with his own underscoring of the power of ideas in the nation’s founding.

Perhaps Adair’s 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: OxfordUniversity 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).

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Finally, Adair wrote of the influence of David Hume on Madison’s 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

Hume’s 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 White’s 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 America’s

founding document.

Garry Wills, in Inventing America: Jefferson’s Declaration of Independence,13

transposed the thought of Frances Hutcheson with John Locke on Thomas Jefferson’s

original drafting of the 1776 Declaration of Independence. According to Wills,

Jefferson’s notion of independence not only wished to separate America from the King,

12 Alexander Hamilton, John Jay and James Madison with Robert Scigliano, ed., TheFederalist (New York: The Modern Library, 2000).

13 Garry Wills, Inventing America: Jefferson’s Declaration of Independence (New York:

Doubleday, 1978).

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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 Becker’s 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 Framer’s were mostly college trained men who were

grounded in much the same texts. Wills educates one anew to the sensitivity of

Jefferson’s 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 Pocock’s book with perhaps the

seminal work of this republican paradigm.

Bailyn’s 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).

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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

time—how 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. Bailyn’s underscoring of the English

commonwealth tradition influencing the founding echoed Caroline Robbins’ 1959 work,

The Eighteenth Century Commonweatlthman.16 Bailyn’s 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 theTransmission, Development and Circumstance of English Liberal Thought from

the Restoration of Charles II until the War with the Thirteen Colonies (New York:

Atheneum, 1968).

17 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 one’s “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. Hartz’s 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 book’s

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).

19 Louis Hartz, The Liberal Tradition in America (New York: Harcourt, Brace &

World, Inc., 1955).

20 Joyce Appleby , Liberalism and Republicanism in the Historical Imagination

(Cambridge, MA: Harvard University Press, 1992).

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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 “can’t 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 republicanism—liberalism

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 Madison’s thought was inconsistent during the founding era. Rather

than asserting that Madison was pro-Hamilton during the late 1780’s and then pro-

Jefferson in the late 1790’s, 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 Pocock’s Florentine imagery while

24 Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the

Federal Republic (Ithaca: Cornell University Press, 1995).

25 Michael Lienesch, New Order of the Ages: Time, the Constitution and the Making of

Modern American Political Thought (New Jersey: Princeton University Press, 1988).

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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 Amar’s 2005

America’s Constitution: A Biography.28 Amar’s intent was to possibly awaken modern

26 Lee Ward, The Politics of Liberty in England and Revolutionary America (Cambridge:

Cambridge University Press, 2004).

27 Primary Documents in American History. “1787 United States Constitution.” Accessed

February 19, 2008. http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html

28 Akil R. Amar, America’s 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 America’s 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. Kenyon’s 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:

29 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).

30 J. Roland Pennock and John W. Chapman, eds., Constitutionalism, Nomos XX (New

York: New York University Press, 1979): 84-121.

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Pennsylvania (1776) Massachusetts (1780)

Articles of Confederation (1781) United States Constitution (1787)

Pennsylvania—The state’s 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 Penn’s

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

document’s 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.

Massachusetts—As 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 God’s 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 Puritans—there 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

Pennsylvanian’s 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

representatives—they 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 Union —this 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 power 31 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 II—“Each state retains its

sovereignty, freedom, and independence, and every power, jurisdiction, and right, whichis 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

America’s future.

The United States Constitution—this document established the first system of national

government in the United States—one 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 1780’s, 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 people’s 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

32 United States Constitution Online. “The Articles of Confederation.” Article.IV-

Section.4 “The United States shall guarantee to every State in this Union a Republican

Form of Government, . . .”

22



convention. In this debate is part of the proof of this essay’s thesis—that 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 2—PENNSYLVANIA

“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

23



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

33 Pennsylvania Constitution. “Constitution of the Commonwealth of Pennsylvania 1776.”Accessed August 9, 2008. http://www.duq.edu/law/pa-constitutions/1776.cfm

34 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

24

http://www.duq.edu/law/pa-constitutions/1776.cfm

http://www.duq.edu/law/pa-constitutions/1776.cfm



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 Pennsylvania’s 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 documents—the 1681 First Frame of Government , the 1682

Great Law, the 1683 Second Frame of Government , the 1696 Markham’s 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 1780’s.

This shift in how basic rights and liberty protection should be institutionalized

began in Pennsylvania with Penn’s 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.

36 Gary B. Nash, Quakers and Politics: Pennsylvania, 1681-1726 (Princeton: PrincetonUniversity Press, 1968): 11-20. William R. Shepherd, “History of Proprietary

Government in Pennsylvania” (PhD diss., Columbia College, 1896).

26





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 life—of each other and

38 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.”

39 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 colony’s 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: TheChurch of England in Colonial Philadelphia, 1695-1789” ( PhD diss., University of

Pennsylvania, 1978): 25-72 and Nash, Quakers and Politics.

28



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 contract—another 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

Pennsylvania’s 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 Penn’s 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. Penn’s charter was marked by

the sovereignty of the British monarchy. It should be noted that Charles II did not

40 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 Nature’s God. “Frame of Government of Pennsylvania, April25, 1682.” Accessed April 2, 2011. http://www.lonang.com/exlibris/organic/1682-

fgp.htm

29

http://www.lonang.com/exlibris/organic/1682-fgp.htm






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 Harrington’s 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

42 James Harrington, The Commonwealth of Oceana (1656). Penn clearly possessed a

utopian vision of Quaker society in Pennsylvania. Harrington’s novel of an ideal republic

seems to match Penn’s sentiments.

30



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 Penn’s contract

was again honored several years later albeit by Penn’s 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 Pennsylvania’s 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 document’s 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

43 Theodore Thayer, Pennsylvania Politics and the Growth of Democracy: 1740-1776

(Harrisburg: Pennsylvania Historical and Museum Commission, 1953): 193-194.

31



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 frontier—cosmopolitan

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 Pontiac’s 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.

32



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

45 Dickinson’s 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.

33



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 1770’s became compressed. The struggle

for power between the moderate Whigs and the radical Whigs turned on the issue of how

to best preserve American liberties—status 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

protections—at 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.

Pennsylvania’s 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.

34



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 liberties—but 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 Virginia’s 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 post-

revolutionary 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 world’s mightiest military power.

These Constitutionalists continued with the democratic institutions imbued in

Pennsylvania’s 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

Pennsylvania’s 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 not—they 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 qualification—property. 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.

37



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 past—escaping one’s 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

46 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 StateConstitutions 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).

38



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 government—a 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 person’s liberties were curtailed. The Republicans believed that

39



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 world’s 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 city’s

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 remained—what to do?

47 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.

40



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 charter—one

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.

41



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 coalitions—a 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

48 J. Paul Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary

Democracy (Philadelphia: University of Pennsylvania Press, 1936): 177.

42





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.

53 Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790

(Harrisburg: The Pennsylvania Historical and Museum Commission, 1971): 225.

44



The people’s rights were enumerated by Article IX. This article contained twenty-

six 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 constitution’s

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.

54 Pennsylvania General Assembly. “Pennsylvania Constitution.” Accessed March 5,

2011. http://www.legis.state.pa.us/wu01/vc/visitor_info/creating/constitution.htm

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

45



CHAPTER 3—MASSACHUSETTS

“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 bycertain 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

56 National Humanities Institute. “1780 Constitution of Massachusetts.” Accessed July30,

2008. http://www.nhinet.org/ccs/docs/ma-1780.htm

46



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.

57The 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 areunderwritten, . . . 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 mostmeet and convenient for the general Good of the Colony; unto which we promise all due

Submission and Obedience. “

58 Braintree, Essex and Pittsfield were towns in colonial Massachusetts.

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

60 Barry Alan Shain, The Myth of American Individualism (Princeton: Princeton University Press,

1994). Shain’s 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 modernidea of the freedom and individualism of the colonial American.

47

http://avalon.law.yale.edu/17th_century/mayflower.asp





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 frontier—the 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 other’s moral behaviors and resultant consequences would be

61 Richard D. Brown and Jack Tager, Massachusetts: A Concise History (Amherst:

University of Massachusetts Press, 200): 36-57.

48



the story of Hester Prynne in Nathaniel Hawthorne’s, The Scarlet Letter .62 As

individualistic as one’s 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

62 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.

49



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

63 John M. Steadman “Man’s First Disobedience:” The Causal Structure of The Fall.” Journal of the History of Ideas 21 (1960): 180-197.

50



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 document—the 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.

64 Mark D. Cahn “Punishment, Discretion, and the Codification of Prescribed Penalties inColonial Massachusetts.” American Journal of Legal History 33 (1989): 107-136.

65 Hendrik Hartog “The Public Law of a County Court; Judicial Government inEighteenth Century Massachusetts.” American Journal of Legal History 20 (1976): 282-

329.

66 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 theConstitutional Thinking of John Adams.” Proceedings of the Massachusetts Historical

Society 63 (Oct., 1929-Jun., 1930): 113. Grinnell’s paper also reported that similar views

were expressed by John Milton in Paradise Lost.

67 This proclamation established British rule over what is now Massachusetts, Maine,

New Hampshire, Rhode Island, Connecticut, and New York.

51







anew the power of God’s 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 colony’s 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.

69 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.

71 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 andseizure. This probably was the beginning of colonial resistance to the increased imperial

activity to tax the colonies.

54



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 man’s house is his castle and that if otherwise

law-abiding, a man’s 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 Constitution—or 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 America’s

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

72 Due to Otis’ strong argument, colonial courts did not issue writs but Parliament decidedto strengthen the legality of issuing writs of assistance by including them in the 1767

Townshend Acts.

73 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).

55



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

74 S. B. Benjamin, “John Adams The “Invisible Hand” Behind American

Constitutionalism” (PhD diss., New York University, 1996): 251-265.

56



Congress. Adams’s 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

75 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 electedrepresentatives. The Braintree Instructions were not actually passed by the

Massachusetts General Court but may as well have been. The Instructions echoed theVirginia Resolves in terms of the taxation and representation question but also raised theimportant issue of the right to a trial by one’s peers. The new imperial legislation passed

by Parliament extended the use of admiralty courts which could abrogate an individual

citizen’s right to a trial by jury of his peers. Finally, the Instructions warn of a Pandora’sBox 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. . .”

76 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 andinvaluable right of every British subject in these colonies. . .”

77 Richard Bland, An Inquiry into the Rights of the British Colonies, 1766. Bland diedshortly 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.

57



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.

78 Harry A. Cushing, “History of the Transition from Provincial to Commonwealth

Government in Massachusetts,” (New York: PhD diss., Columbia University, 1896): 54-61.

79 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 thestudent 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 tothe compacts and covenants tracing back to the beginning of the English North American

colonial experiment.

58



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 authority—the 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 colony’s

80 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.

81 Handlin, Popular Sources, 3.

59



1691 charter and eliminated the colony’s 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.

82 National Park Service. “The Suffolk Resolves.” Accessed March 4, 2011.

http://www.nps.gov/mima/forteachers/loader.cfm?csModule=security/getfile&pageid=1164444

83 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.

60



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 Concord’s

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

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

Constitution.

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

86 Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing during the

Founding Era: 1760—1805, 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.

87 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, WilliamWhiting’s grievances were influential to the decision of the Provincial Congress to hold a

special state constitutional convention.

61



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

88 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 andJohn 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).

62



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 serve—“The

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

89 Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact

(Amherst: The University of Massachusetts Press, 1978): 19.

90 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 NewEngland 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.

91 Peters, Massachusetts Constitution, 195.

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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

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 overburden’d with years. Some are weak, negligent, slothful, foolish or

vicious: others, who may have something of rectitude in their intentions, and naturally are notincapable of doing well, are drawn out of the right way by the subtlety of ill men who gain credit

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CHAPTER 4—ARTICLES 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 isinfused 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 anyauthority 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 aconstitution.”96

94 Articles of Confederation and Perpetual Union, Section II.

http://avalon.law.yale.edu/18th _century/artconf.asp It is very instructive to view John

Dickinson’s original July 12, 1776 draft of the Articles. Section III of Dickinson’s 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, andreserves 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 MerrillJensen, The New Nation: A History of the United States during the Confederation—1781-

1789 (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 thesovereignty of the individual states. The Continental Congress heeded Burke’s warning

and inserted Section II specifying state sovereignty.

95 Patrick Henry, 1788., in Orations of American Orators. Henry’s comment on the

significant change in sovereignty from the people of each state to the people of all thestates 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 Dickinson’s law office, thatincluded 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 theimportant notions of sovereignty and representation.

96 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 thecharacterization 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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http://avalon.law.yale.edu/18th%20_century/artconf.asp





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.

97 Frank H. Garver “The Transition from the Continental Congress to the Congress of theConfederation.” Pacific Historical Review 1 (1932): 221—234. 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 resultedin a legitimacy from an unwritten and vague constitutional status to an enumerated status

and thus signifying a noteworthy period fundamental law shift.

98 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 Congressand the Financing of the War of American Independence.” The Economic History Review

54 (2001): 639-656. Baack’s analysis of the free rider problem operative during the

revolutionary war is instructive to the problems Americans grappled with at that time. Inaddition, 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 exigencies—with

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

99 Jerrilyn G. Marston, King and Congress: The Transfer of Political Legitimacy, 1774-

1776 (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 arguesthat 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 thelegislative 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. 100 The Articles of Confederation, Sections II & III.

101 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.”

102 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.”

103 The Articles of Confederation, Section IX. This section, in paragraph five, sets a

framework for managing anticipated and unforeseen collective, or national, issues thatmight 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 today’s 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

104 The Articles of Confederation, Section IX, Paragraph III, “All controversiesconcerning 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 toscratch one’s head in confusion. What is clear is that no definitive provision was made

for a orderly disposition of inter-state disputes.

105 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. passesa 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 capturesthis 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 Congressas 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 nineStates 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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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,

108 Anna M. Quattrocchi, “Thomas Hutchins, 1730-1789,” (PhD diss., University of

Pittsburgh, 1994). Warren E. Kasper, “Thomas Hutchins and the Federal Frontier,” (PhDdiss., 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).

109 The 1785 law was adopted by the Confederation Congress in May. As the nationalgovernment was unable to directly tax, the proceeds of the sale of western lands was a

solution to a vexing national problem—how to effectively raise revenues. Thomas

Jefferson was a proponent of this legislation calling for the establishment of the PublicLand 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 present-

ism. 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 Parliament’s

Confederation Congress of the 1787 Northwest Ordinance. This law provided for the

orderly inclusion of western territories as new states rather than extensions of existingstates. 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.

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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.

110 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, coulddefine 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

111 Minorities in this context refer to those not in numerical superiority and not as ethnicminorities as commonly thought of today.

112 John Rawls, Lectures on the History of Political Philosophy (Cambridge: The BelknapPress 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’ lectures—Hobbes, Locke, Hume, andRousseau, to name a few. The traditions of British American constitutionalism are deeply

rooted in state of nature and social contract theory and practice.

113 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.

114 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 the1776 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 one’s 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.”

115 David M. Potter “The Historian’s 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 5—UNITED 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 mayknow, 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

117 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). Liell’s narrative on Common Sense is illuminating in placing Paine’s work in thetime 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 theUnited States Constitution.

119 This is noteworthy because Thomas Paine was a radical Pennsylvania Whig whosupported 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 chapter—how 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 radicaldominated 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 WentWrong.” 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.

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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.

120 Independence Hall Association in Philadelphia. “The Declaration of Independence.”

Accessed Aug. 10, 2006. http://www.ushistory.org/declaration/document

121 Frank H. Knight “Natural Law: Last Refuge of the Bigot.” Ethics 59 (1949): 127-135for 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 Locke’s Second Treatise on

Civil Government , influenced the writers of the Declaration of Independence and the

Framers of the Constitution. Locke’s work was in the libraries of most, if not all,

influential political theorists of revolutionary America.122 Jefferson’s 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 Penn’s 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 colonist’s 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

122 Jerome Huyler, Locke in America: The Moral Philosophy of the Founding Era

(Lawrence, KS: University Press of Kansas, 1995). Huyler’s 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 republicanism—classical 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 Montesquieu’s Spirit of Laws. This book

was reputed to be as popular as Locke’s 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 area—much 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

123 Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Originsof 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 theSpirit of American Republicanism,” (PhD diss., The Catholic University of America,

1996). Ahern echoes the thesis of Colbourn by focusing on Dickinson’s realization that

social order is discernible within the history of a people’s compacts, covenants, andstatutes governing their society. This historically pragmatic approach to nation building

was perhaps the Framers key to success in erecting and enacting the United StatesConstitution.

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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

124 The term, American enlightenment republicanism, is mine but also has been termedMadison-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 informativeanthology of the period writings of Benjamin Franklin, John Adams, Thomas Jefferson,

James Madison, Alexander Hamilton, et al.

125 Historian Richard A. Gerber has coined the term “rights for order” that encapsulatesthis 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 asa Test Case.” The New England Quarterly 45 (1972): 393-407.

126 Hamilton, The Federalist, 53-61. Madison’s Federalist #10 is the definitive primarysource of the emergence of the coherent theory of orderly republicanism over a

continental geography.

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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

127 The Framer’s knew that this was a prime reason for the fall of the Roman Republic.

128 Madison’s theory was proven correct as seen by the success of American civilizationand 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.

129 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 states—a monumental difference.

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overall thesis of this essay—that 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

rights—natural 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 Penn’s 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

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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 people’s 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

131 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 BritishEmpire 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 Reid’s thesis that Americanconstitutionalism 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 Parliament’s 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.

132 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 6—CONCLUSION

“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

133 University of Chicago Press Books Division. “Popular Basis of Political Authority,James Burgh, Political Disquisitions.” Accessed March 21, 2011. http://press-

pubs.uchicago.edu/founders/documents/v1ch2s6.html

134 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 theyare 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

people’s 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.

136 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 man’s 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 people’s 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 Madison’s Federalist #10 was

instructive here as he outlined how the new government was an essential commitment to

137 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 contrivedmerely 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 Americawill 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 asdisabuse, 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 1780Massachusetts 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 essay’s 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

138 It should be noted here that Madison’s arguments in Federalist #10 were not available

to those in the 1787 Philadelphia Convention. The Federalist Papers, where #10 firstappeared, were created to influence public opinion after the Philadelphia Convention

produced a new constitution to be ratified by popular conventions specific to that

purpose.

139 Paul Ferrino and Timothy Grivalsky, “The Framer’s Intent: The Judiciary, An

Investigation into the Origins of Judicial Review During the Early Republic Period of theUnited States of America” (Paper presented in partial fulfillment of His553: The Early

Republic 1763-1826, Southern Connecticut State University Graduate School, 2005): 35-

37.

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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 world’s 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 changing—no 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 colonist’s 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 colonist’s 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 purpose—to

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 answered—the 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 America’s 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

140 Margherita Marchione, ed., Philip Mazzei: Jefferson’s “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.

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 lateglorious 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 whichmay 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.

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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

Rousseau’s 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

143 Drew Silver, ed., Jean-Jacques Rousseau: On The Social Contract (Mineola, NY:

Dover Publications, Inc., 2003): iii.

144 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.

Quincy’s 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.

145 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).

146 Colbourn, Lamp of Experience, 78.

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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 toany 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 arenot 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 beapplicable to their several local and other circumstances.

7. That these, his Majesty’s 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, isunconstitutional, 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.

147 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 answer—individual 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 nation’s 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 Framer’s was that the best place to secure the

148 Reid, Constitutional History, 237.

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people’s 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

Adair, Douglass “James Madison’s Autobiography.” The William and Mary Quarterly 2(1945): 191-209.

Adair, Douglass and Mark E. Yellin,ed., The Intellectual Origins of Jeffersonian

Democracy: Republicanism, the Class Struggle, and the Virtuous Farmer (Lanham:Lexington Books, 2000).

Adams, John, Defence of the Constitutions of the United States, Volume I (New York: DaCapo Press, 1971).

Ahem, Gregory S., “Experience Must Be Our Only Guide:” John Dickinson and theSpirit of American Republicanism” (PhD diss., The Catholic University of America,

1996).

Alexander, John K. “The Fort Wilson Incident of 1779: A Case Study of the

105



Revolutionary Crowd.” The William and Mary Quarterly 31 (1974): 582-612.

Amar, Akhil Reed, America’s Constitution: A Biography (New York: Random House,2005).

American Archives. “Proclamation by the General Court.” Accessed March 2, 2011.http://www.lincoln.lib.niu.edu/

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

Appleby, Joyce, Thomas Jefferson (New York: Henry Holt and Company, 2003).

Avalon Project. “The Mayflower Compact.” Accessed March 3, 2011.


Baack, Ben “Forging a Nation State: The Continental Congress and the Financing of theWar of American Independence.” The Economic History Review 54 (2001): 639-656.

Bailey, Thomas A., A Diplomatic History of the American People (New York: Appleton-

Century-Crofts, Inc., 1958).

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

Bailyn, Bernard, ed., Pamphlets of the American Revolution 1750-1776, Volume I

1750-1765 (Cambridge: The Belknap Press of Harvard University Press, 1965).

Banning, Lance, The Sacred Fire of Liberty: James Madison and the Founding of the

Federal Republic (Ithaca: Cornell University Press, 1995).

Beard, Charles A., An Economic Interpretation of the Constitution of the United States

(New York: The Free Press, 1986).

Becker, Carl, The Declaration of Independence: A Study in the History of Political Ideas

(New York: Alfred A. Knopf, 1948).

Benjamin, S. B., “John Adams, The “Invisible Hand” Behind American

Constitutionalism” (PhD diss., New York University, 1996).

Bland, Richard, An Inquiry into the Rights of the British Colonies, (1766).

Bok, Curtis, Saturday Review, (Feb. 13, 1954).

Braintree Instructions (1765).

106





Declaration of Rights and Grievances (1765).

Diggins, John Patrick, John Adams (New York: Henry Holt and Company, 2003).

Diggins, John Patrick, The Lost Soul of American Politics: Virtue, Self-Interest, and the

Foundations of Liberalism (New York: Basic Books, Inc., 1984).

Ferrino, Paul and Timothy Grivalsky “The Framer’s 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).

Fischer, David H. “The Myth of the Essex Junto.” The William and Mary Quarterly 2

(1964): 191-235.

Fisher, Sydney G., Pennsylvania: Colony and Commonwealth (Philadelphia: Henry T.Coates and Company, 1896).

Foster, Joseph S., In Equal Pursuit of Liberty: George Bryan and the Revolution in

Pennsylvania (University Park: The Pennsylvania State University Press, 1994).

Garver, Frank Harmon “The Transition from the Continental Congress to the Congress of

the Confederation.” Pacific Historical Review 1 (1932): 221-234.

Gerber, Richard Alan “Liberal Republicanism, Reconstruction, and Social Order: Samuel

Bowles as a Test Case.” The New England Quarterly 45 (1972): 393-407.

Gerber, Richard Alan, Revolution and Union: The American Dilemma: 1763-1877

(Mason, OH: Cengage Learning, 2008).

Gibson, Alan, 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).

Gough, Deborah, “Pluralism, Politics, and Power Struggles: The Church of England in

Colonial Philadelphia, 1695-1789” (PhD diss., University of Pennsylvania, 1978).

Grinnell, Frank W. “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.

Grinnell, Frank W. “John Wintrop and the Constitutional Thinking of John Adams.” Proceedings of the Massachusetts Historical Society 63 (1929): 109-143.

108



Hamilton, Alexander, John Jay and James Madison with Robert Scigliano, ed.,The Federalist (New York: The Modern Library, 2000).

Hamilton, J. D. De Roulhac “A Society for Preservation of Liberty, 1784.” The American

Historical Review 32 (1927): 550-552.

Handlin, Oscar and Lilian, Liberty in Expansion: 1760-1850 (New York: Harper & Row,

1989).

Handlin, Oscar and Mary F., eds., Popular Sources of Political Authority: Documents On

The Massachusetts Constitution of 1780 ( Cambridge: The Belknap Press of Harvard

University Press, 1966).

Harrington, James, The Commonwealth of Oceana (1656).

Hartog, Hendrik “The Public Law of a County Court; Judicial Government in Eighteenth

Century Massachusetts.” American Journal of Legal History 20 (1976): 282-329.

Hartz, Louis, The Liberal Tradition in America (New York: Harcourt, Brace & World,Inc., 1955).

Hawthorne, Nathaniel, The Scarlet Letter (1850).

Hayakawa, S. I., Language in Thought and Action (New York: Harcourt, Brace & World,

Inc., 1964).

Huyler, Jerome, Locke in America: The Moral Philosophy of the Founding Era

(Lawrence, KS: University Press of Kansas, 1995).

Hyneman, Charles S., and Donald S. Lutz, eds., American Political Writing during the

Founding Era: 1760—105, Volume 1 (Indianapolis: The Liberty Fund, 1983).

Independence Hall Association in Philadelphia. “The Declaration of Independence.”

Accessed August 10, 2006. http://ushistory.org/declaration/document

Internet Encyclopedia of Philosophy. “Cicero.” Accessed October 6, 2010.http://www.iep.utm.edu/cicero/

Ireland, Owen S., Religion, Ethnicity, and Politics: Ratifying the Constitution in

Pennsylvania (University Park: The Pennsylvania State University Press, 1995).

Jensen, Merrill, The Articles of Confederation: An Interpretation of the Social-Consti-

tutional History of the American Revolution 1774-1781 (Madison: The University of

Wisconsin Press, 1940).

Jensen, Merrill “The Cession of the Old Northwest.” The Mississippi Historical Review

109



23 (1936): 27-48.

Jensen, Merrill, The New Nation: A History of the United States during the

Confederation

1781-1789 (New York: Vintage Books, 1965).

Kasper, Warren E., “Thomas Hutchins and the Federal Frontier,” (PhD diss., Truman

State University, 2001).

Kenyon, Cecelia, and Stanley Elkins, Eric McKitrick and Leo Weinstein, eds., Men of

Little Faith: Selected Writings of Cecelia Kenyon (Amherst: UMass Press, 2002).

Kenyon, Cecelia “Where Paine Went Wrong.” The American Political Science Review,45 (1951): 1086-1099.

Klein, H. M. J. “The Church People in Colonial Pennsylvania.” Pennsylvania History

IX (1942): 37-47.

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

Koch, Adrienne, ed., The American Enlightenment and a Free Society (New York:

George Braziller, 1965).

Kozuskanich, Nathan R., “For Security and Protection of the Community:” The Frontier

and the Makings of Pennsylvania Constitutionalism,” (PhD diss., Ohio StateUniversity, 2005).

Knight, Frank M. “Natural Law: Last Refuge of the Bigot.” Ethics 59 (1949): 127-135.

Kramnick, Isaac “The Great National Discussion:” The Discourse of Politics in 1787.”William and Mary Quarterly 45 (1988): 3-32.

Kukla, Jon, A Wilderness So Immense: The Louisiana Purchas and the Destiny of America (New York: Alfred A. Knopf, 2003).

Laws of Nature and Nature’s God. “Frame of Government of Pennsylvania, 1682.”

Accessed April 2, 2011. http://www.lonang.com/exlibris/organic/1682-fgp.htm

Lemon, James T., 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.

Liell, Scott, 46 Pages: Thomas Paine, Common Sense, and The Turning Point to Independence (Philadelphia: Running Press, 2003).

110



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

Lutz, Donald S., Colonial Origins of the American Constitution (Indianapolis: The

Liberty Fund, 1998).

Lutz, Donald S., The Origins of American Constitutionalism (Baton Rouge: Louisiana

State University Press, 1988).

Lutz, Donald S., Popular Consent And Popular Control: Whig Political Theory in the

Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980).

Madison, James, Notes of Debates in the Federal Convention of 1787 (New York: W. W. Norton & Company, 1987).

Mackiewicz, Susan, “Philadelphia Flourishing: The Material World of Philadelphians,

1682-1760” (PhD diss., University of Delaware, 1988).

Manning, Thomas G., and David M. Potter, Nationalism and Sectionalism in America,

1775-1877: Select Problems in Historical Interpretation (New York: H. Henry Holt

Company, 1949).

Marchione, Margherita, ed., Philip Mazzei: Jefferson’s “Zealous Whig” (New Jersey: New Jersey American Revolution Bicentennial Celebration Commission, 1975).

Marston, Jerrily Greene, King and Congress: The Transfer of Political Legitimacy, 1774-

1776 (Princeton: Princeton University Press, 1987).

McClennan, James, Liberty, Order, and Justice; An Introduction to the Constitutional Principles of American Government (Indianapolis: The Liberty Fund, 1998).

McDonald, Forrest, We the People: The Economic Origins of the Constitution (Chicago:

University of Chicago Press, 1958).

McGuire, C. E. “ A Society for Preservation of Liberty, 1784.” The American Historical Review 32 (1927): 792-793.

McGuire, Vincent, “Republicanism at the American Founding: Virtue, Community and

Liberalism in the Revolutionary Constitutions of Massachusetts and Pennsylvania,”

(PhD diss., University of Colorado, 1995).

Miller, Perry “Jonathan Edwards’ Sociology of the Great Awakening.” The New England Quarterly 21 (1948): 50-77.

Miller, William G., “Moral Legislation in Early American State Constitutions and

Legislation,” (PhD diss., University of Dallas, 2006).

111



Milton, John, Paradise Lost (1667).

de Montesquieu, Baron , Spirit of Laws (New York: P. F. Collier & Son, 1900).

Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England

and America (New York: W. W. Norton & Company, 1988).

Nash, Gary B., Quakers and Politics: Pennsylvania, 1681-1726 (Princeton: Princeton

University Press, 1968).

National Humanities Institute. “1780 Constitution of Massachusetts.” Accessed July

30, 2008. http://www.nhinet.org/ccs/docs/ma-1780.htm

National Park Service. “The Suffolk Resolves.” Accessed March 4, 2011.

http://www.nps.gov/

Palmer, R. R., The Age of the Democratic Revolution: A Political History of Europe and America, 1760-1800 (Princeton: Princeton University Press, 1959).

Parrington, Vernon L., Main Currents in American Thought (New York: Harcourt, Brace,

1954).

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

Pennsylvania Constitution. “Constitution of the Commonwealth of Pennsylvania 1776.”Accessed August 9, 2008. http://duq.edu/law/pa-constitutions/1776.cfm

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

Peters, Jr., Ronald M., The Massachusetts Constitution of 1780: A Social Compact (Amherst: The University of Massachusetts Press, 1978).

Pocock, J.G.A., The Machiavellian Moment: Florentine Political Thought and the

Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).

Pole, J. R., The Idea of Union (Alexandria, VA: The Bicentennial Council of the Thirteen

Original States Fund, Inc., 1977).

Potter, David M. “The Historian’s Use of Nationalism and Vice Versa.” The American Historical Review 67 (1962): 924-950.

Primary Documents in American History. “1787 United States Constitution.” Accessed

February 19, 2008. http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html

112

http://www.nhinet.org/ccs/docs/ma-1780.htm

http://duq.edu/law/pa-constitutions/1776.cfm

http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html

http://www.nhinet.org/ccs/docs/ma-1780.htm

http://duq.edu/law/pa-constitutions/1776.cfm

http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html



Project Gutenberg. “An Essay on Criticism by Alexander Pope, 64.” Accessed March

23, 2011. http://www.gutenberg.org/ebooks/7409

Quattrocchi, Anna M., “Thomas Hutchins, 1730-1789,” (PhD diss., University of

Pittsburgh, 1994).

Rawls, John, Lectures on the History of Political Philosophy (Cambridge: The Belknap

Press of the Harvard University Press, 2007).

Reid, John P., The Authority of Rights: Constitutional History of the American

Revolution

(Madison, WS: The University of Wisconsin Press, 1986).

Robbins, Caroline, 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).

Selsam, J. Paul, The Pennsylvania Constitution of 1776: A Study of Revolutionary

Democracy (Philadelphia: University of Pennsylvania Press, 1936).

Scigliano, Robert, ed., The Federalist: A Commentary On The Constitution Of The United States; Alexander Hamilton, John Jay, and James Madison (New York: TheModern Library, 2000).

Shain, Barry Alan, The Myth of American Individualism (Princeton: Princeton UniversityPress, 1994).

Sheperd, William Robert, “History of Proprietary Government in Pennsylvania” (PhDdiss., Columbia College, 1896).

Sidney, Algernon, Discourse Concerning Government (1698).

Silver, Drew, ed., Jean-Jacques Rousseau: On the Social Contract (Mineola, NY: Dover

Publications, Inc., 2003).

Sioussat, George L., and J. Maccubbin “The Chevalier de la Luzeme 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.

Stanford Encyclopedia of Philosophy. “Aristotle’s Political Theory.” Accessed June 12,2009. http://plato.stanford.edu/entries/aristotle-politics/

Steadman, John M. “Man’s First Disobedience:” The Causal Structure of The Fall” Journal of the History of Ideas 21 (1960): 180-197.

113



Stoner, Jr., James R., Common Law & Liberal Theory: Coke, Hobbes, & the Origins Of

American Constitutionalism (Lawrence, KS: University Press of Kansas, 1992).

Thayer, Theodore, Pennsylvania Politics and the Growth of Democracy: 1740-1776

(Harrisburg: Pennsylvania Historical and Museum Commission, 1953).

Thompson, C. Bradley, John Adams & The Spirit of Liberty (Lawrence, KS: University

Press of Kansas,1998).

Tully, Alan, Forming American Politics (Baltimore: Johns Hopkins University Press,

1994).

United States Constitution Online. “The Articles of Confederation, Articles II, IV, VIII.”

Accessed March 7, 2011. http://usconstitution.net/articles.html

University of Chicago Press Books Division. “Popular Basis of Political Authority,James Burgh, Political Disquisitions.” Accessed March 21, 2011.

http://press-pubs.uchicago.edu/founders/documents.v1ch2s6.html

Virginia Resolves (1765).

Ward, Lee, The Politics of Liberty in England and Revolutionary America (Cambridge:Cambridge University Press, 2004).

White, Morton, Philosophy, The Federalist, and the Constitution (New York: OxfordUniversity Press,2004).

Wills, Garry, Inventing America: Jefferson’s Declaration of Independence (New York:Doubleday, 1978).

Wood, Gordon S., The Creation of the American Republic 1776-1787 (Chapel Hil:The University of North Carolina Press, 1969).

Wood, Gordon S., The Radicalism of the American Revolution (New York: Vintage

Books, 1993).

114

http://usconstitution.net/articles.html



