Dr. Almon Leroy Way, Jr.,

University President & Professor of Political Science


1. Political Experience with Colonial Governments:

Political experience in thirteen of Great Britain's North American colonies during the 156-year period from 1619 to 1775 was a direct source of the political ideas, values, and beliefs which influenced and guided the American Founders in drawing up the United States Constitution. The very first plan of government for a colony in British North America was the one for the Colony of Virginia, adopted in 1619 by the Virginia Company of London, a joint-stock trading company of English merchant-adventurers which had been granted by James I, King of England, a charter authorizing the company to found, develop, and govern a colony in North America. As the Virginia governmental system evolved under this early plan of colonial government, it took on basic characteristics that were very similar to those of the governmental system which operated in England late in ihe reign of Queen Elizabeth I, characteristics which the Virginia colonists perceived to be essential to to the proper and constitutional operation of the English governmental system of their time. The evolving system of government in the Virginia colony did not undergo fundamental change after King James I, in 1624, withdrew the colonial charter, thereby dissolving the trading company and transforming Virginia into a royal colony, or crown colony. The 1619 plan of government and the subsequent course of political development in Virginia set the basic pattern of development in the twelve other British colonies which had their beginnings subsequent to the founding of Virginia and which, along with Virginia, ultimately became the thirteen original states federated together as the United States of America.

What were the basic features of the governmental system that evolved in the Colony of Virginia?

2. The Governmental System in the Virginia Colony -- Basic Features:

Basic features of the Virginia colony's governmental system included (1) a degree of colonial autonomy, or home rule, (2) a bicameral legislature, one house elective and the other house appointive, (3) a strong chief executive, the Governor, and (4) a judiciary, or system of courts.

        The Virginia Colonial Legislature. The colonial legislature, styled the "General Assembly" of Virginia, consisted of an elective House of Burgesses and a non-elective Council of State, also known as the "Governor's Council," or the "Council."

The House of Burgesses (1) was the lower and more numerous chamber of the General Assembly, (2) was composed of representatives elected by the freeholders in the colony, i.e., by the qualified, propertyowning voters in the colony, (3) represented the interests of the landowning settlers, and (4) was widely perceived by the colonists to be the colony's equivalent of the House of Commons in the English Parliament. By the middle of the seventeenth century, the House of Burgesses had gained the right of final decision on revenue and appropriations bills introduced into the General Assembly. From then on, the House of Burgesses possessed this power of first consideration and final decision on taxes and appropriations, holding and exercising it in addition to the power the House had over other types of proposed legislation -- the power of absolute veto, the latter power shared with the Council of State. (For a bill to be passed by the General Assembly, both chambers had to approve the bill, with a majority in each of the two chambers required for passage. However, if the House of Burgesses rejected a proposed revenue or appropriations bill, the Council did not have a voice in the matter, since a bill of this type could not be considered by the Council until it was first introduced into and passed by majority vote in the House of Burgesses. The Burgesses alone held the power of absolute veto over taxation and appropriations legislation.)

The Council of State, as the upper house of the Virginia General Assembly, possessed the power of absolute veto over all bills introduced into the Assembly and passed by the House of Burgesses. After 1624, the members of the Council of State were appointed by the English Crown, on recommendation of the Governor, and served during the King's pleasure. Drawn from the local gentry, the Council members represented the interests of the landowners in the colony. The Council of State, as the non-elective, aristocratic chamber of the General Assembly, was widely perceived by the settlers to be Virginia's equivalent of the British House of Lords.

        The Colonial Governor of Virginia. The Virginia Governor functionrd as the chief executive officer in the colonial government. He was a rather strong chief executive, possessing broad discretionary authority within the colony to enforce the laws of England as well as the laws of Virginia.

Moreover, the Governor shared the legislative authority of the colony with the two houses of the General Assembly. The Governor summoned and adjourned the General Assembly, possessed the power of absolute veto over all bills passed by that body, and could dissolve it and order new elections. After 1624, the Governor was appointed by and served during the pleasure of the Crown and was the King's chief deputy and representative in Virginia.

        The Council of State and Its Executive Functions. The Council of State, in addition to fulfilling its legislative role as the upper chamber of the General Assembly, performed important executive and judicial functions. In its executive capacity, the Council served as an advisory body to the Governor and assisted him in the performance of his executive duties. As regards its advisory and executive functions, the Virginia Council of State was widely perceived to have a role in the Virginia governmental system very similar to that of the King's Privy Council in the British governmental system.

        The Council of State and Its Judicial Functions. In its judicial capacity, the Council of State sat with the Governor as the General Court of Virginia, which functioned as the colony's high court of justice, as sort of a supreme court for the colony. The General Court heard appeals from the lower courts in the colony. Although the General Court was the highest court of appeals in Virginia, an inhabitant of the colony could appeal his case to to the Privy Council in London, if the sum of money or value of the property involved in the case exceeded 300 pounds sterling.

In acting with the Governor as a high court of justice, the Council of State reinforced the Virginia colonists' perception of the Council the colony's equivalent of the British House of Lords as well as of the Privy Council. In the Britism governmental system, the House of Lords functions as a high court of justice -- as a court of last resort -- in certain types of cases.

        Burgesses and Councilors. The Council of State, the stronger of the two houses of the General Assembly during the earlier years of Virginia's political development, was comprised of members appointed from the local gentry and therefore tended strongly to represent the interests of the large landowners in Virginia, rather than the interests of the British Monarch. The unelected Councilors were drawn from the same socioeconomic element of the Virginia population as were the popularly elected Burgesses -- namely, the upper middle class of wealthy propertyowners, a colonial gentry who saw themselves as the "natural aristocracy" within Virginia's colonial society. From 1619 to 1710, the Council of State spearheaded the endeavor of Virginia's gentry to get the legislative authority located squarely and firmly in the hands of their own General Assembly and to thereby enhance their right to colonial autonomy, or self-government. During this time, the drive for colonial home rule through enlargement of the General Assembly's legislative power was manifested in a gradual and sequential accumulation of political authority in the Council of State, rather than in the House of Burgesses.

While the appointive Council of State was, prior to 1710, clearly more powerful than the elective chamber of the Virginia legislature, political power, during the first quarter of the eighteenth century, slowly shifted from the Councilors to the Burgesses. By 1725, the elective House of Bugesses had acquired the position of political ascendency in the General Assembly, a polition in which the lower chamber was entrenched and from which it could never be removed.

3. Colonial Governmental Systems in British North America in 1774:

In 1774, on the eve of the American Revolution, there were thirteen largely self-governing colonial political communities located in British North America, along what is now the Atlantic coast of the United States. Each of these political communities had an existing, functioning colonial government. As previously mentioned, the thirteen colonial governmental systems, patterned after English governmental institutions and based on English political ideas and practices, were a direct source of the political ideas, values, and beliefs which influenced the Framers of the United States Constitution.

What were important characteristics of the thirteen colonial governments in British North America in 1774?

Important characteristics shared by the late eighteenth century colonial governments were (1) government based on a written "constitutional" document, (2) a strong chief executive, (3) an independent and powerful legislature, bicameral in all but one of the colonies, and (3) a judiciary, or system of courts.

        Colonial Government Based on a Written "Constitutional" Document. Each of the thirteen colonies had a government which operated on the basis of a written document -- a charter or royal commission granted by the British Crown. In each colony, the charter or commission was widely perceived by the colonists to be a written constitution for the colony. The colonial charter or royal commission did, in fact, function very much like a colonial constitution. The charter or commission (1) prescribed the form, institutions, and procedures of colonial government, (2) gave the colonial government certain duties and responsibilities and authorized it to exercise certain powers, and (3) in effect, granted the colony a substantial degree of autonomy, or self-government.

        The Governor -- A Strong Chief Executive. In a colonial government, the Governor was the widely perceived equivalent of the Monarch in the British home government in London. In nearly every colony, the powers of the governor were extensive. Typically, the Governor possessed and exercised authority to (1) appoint, control, and direct subordinate executive officers and administrative officials in the colonial government, (2) enforce the laws, (3) command the colonial militia and exercise considerable military power, in his capacity as commander-in-chief, captain-general, and vice-admiral, (4) hold the great seal of the colony and use it to authenticate public documents, (5) make landgrants and collect quitrents, (6) appoint places for fairs and markets, (7) grant pardons, (8) preside over the colony's high court of justice, or court of appeals, (9) summon and adjourn the colonial legislature, (10) dissolve the legislature and call for new elections, (11) formally introduce bills in either or both chambers of the legislature, and (12) veto all bills passed by the colonial legislature. Governmental functions and activities in which the Governor was, at least in theory, the principal voice included (1) appointment of the judges on the lower colonial courts, (2) appointment of justices of the peace, and (3) drawing money from the colonial treasury to meet governmental expenses authorized by the colonial legislature through its enactment of appropriations laws.

In short, the Governor not only possessed and exercised broad executive and administrative authority, but also exercised important judicial powers and shared the colony's legislative authority with the houses of the legislature.

By 1774, eight of the thirteen colonies --Georgia, South Carolina, North Carolina, Virginia, New Jersey, New York, Massachusetts, and New Hampshire -- were royal colonies, or crown colonies, i.e., colonies whose original charters had been revoked by the King and replaced with royal commissions, supplemented by royal instructions. In every royal colony except Massachusetts, the Governor was the most powerful political figure in the colony. The Governor of a crown colony (1) was appointed by the British Monarch on the recommendation of the Privy Council, (2) functioned as the chief deputy and representative of the Monarch in the colony, (3) was responsible for seeing that royal instructions were carried out in the colony, and (4) was expected to actually represent the interests of the British Crown in the colony.

In each of the three proprietary colonies (Maryland, Pennsylvania, and Delaware), the Governor (1) was appointed by the Proprietor of the colony, (2) functioned as the chief deputy and representative of the Proprietor in the colony, and (3) was expected to represent the interests of the Proprietor in the colony.

In each of the two charter colonies, or corporate colonies (Connecticut and Rhode Island), the Governor (1) was elected by the qualified voters in the colony and (2) represented the interests of those voters.

        The Colonial Legislature -- A Powerful and Independent Legislature. In 1774, each of the thirteen colonies had a powerful and independent legislature. Styled the "General Assembly" in most of the colonies, the legislature was bicameral in every colony except Pennsylvania, where it was unicameral.

The Pennsylvania Assembly was a single-chamber legislature elected by the voters in the colony. In each of the twelve remaining colonies, the legislature consisted of two chambers -- a smaller, upper house and a larger, lower house, the members of the latter elected by direct popular vote in the colony.

In each colonial government, the General Assembly, or colonial legislature, was widely perceived by the colonists to be the equivalent of Parliament in the British government.

In each colony, the elective lower chamber of the legislature was widely regarded as the colony's equivalent of the House of Commons in Great Britain. Known by different names in different colonies (e.g., the "House of Burgesses" in Virginia and the "Commons House of Assembly" in Georgia and in North and South Carolina), the lower house was elected by the freeholders (property owners) in the colony and represented the interests of these voters.

The lower house had control over public finance (taxes and appropriations). All money bills, including the bill setting the Governor's compensation, had to originate in the lower house. If the lower chamber rejected a revenue or spending bill, this was the last word on the matter.

The lower house used this power over the public purse as leverage to extract concessions from the Governor and thereby reduce and place greater checks on the Governor's power and increase the powers of the legislature in general and those of the lowerr chamber in particular. Over time, the popularly elected lower house of the legislature became the dominant organ within the colonial government, in much the same manner as the House of Commons became the dominant organ in the British home government.

In ten of the twelve colonies with bicameral legislatures, the members of the upper chamber -- the Council of State -- were appointed to their positions by the Crown or by the Governor (with the Crown's consent) in seven of the eight royal colonies. In each of the two proprietary colonies with bicameral legislatures (Maryland and Delaware), the members of the Council of State were appointed by the Proprietor.

In the royal colony of Massachusetts, under its Charter of 1691, the members of the upper house of the General Court (Massachusetts legislature) were elected by the lower house, whose members were, in turn, elected by the qualified voters in the colony. In this scheme of legislative representation, the lower chamber of the General Court was chosen by direct popular vote and the upper chamber was chosen by indirect election, with the popularly elected members of the lower house choosing the members of the upper house. While the lower chamber was one step removed from the voters and directly responsible to them, the upper chamber was two steps removed from the voters and only indirectly responsible to them.

In each of the two corporate colonies (Connecticut and Rhode Island), both houses of the colonial legislature were elected directly by the voters. Direct election of the lower house of the legislature by the qualified voters was, by 1774, a deeply rooted, fundamental political value, a strongly entrenched political tradition, and a standard political practice in the English-speaking regions of the world; it was the rule in all Anglophone societies. However, extention of the principle of direct popular election to the upper chamber of the legislature was a political innovation, a colonial innovation.

In each of the ten colonies where the upper house of the legislature was appointive, the Council of State was widely perceived by the colonists to be the colonial government's equivalent of the non-elective, hereditary House of Lords, the aristocratic upper chamber of the British Parliament. In Massachusetts, where the upper house was indirectly elected and only indirectly accountable to the voters, the Council was also widely regarded as the colony's equivalent of the House of Lords in Great Britain.

In addition to its role as the upper chamber of the colonial legislature, the Council of State served as a group of advisors to the Governor and assisted in the performance of the Governor's executive and administrative duties. That is, the Council functioned very much like the British Monarch's Privy Council and, in some respects, like Britain's present-day Cabinet.

In some colonies, the Council, sitting with the Governor, functioned as the colony's supreme court, the "High Court of Justice," or "Court of Appeals."

In seven of the crown colonies, the Council, appointed by the British Monarch on the Governor's recommendation or appointed by the Governor with the Crown's consent, was expected to coalesce with the Governor and represent the interests of the Crown in the colony. However, the members of the Council were generally appointed from the large landowners in the colony, wealthy colonists who were widely respected and politically influential within the colony and therefore not dependent upon royal favors or patronage for their economic success and political power. Hence, the members of the Council were as likely to represent the interests of the colonial gentry as they were to represent the imperial interests of the British Crown.

In Georgia and Virginia, for example, the Council members were local gentry who identified strongly with the political and economic interests of their own socioeconomic class in the colony -- the tidewater aristocracy, which dominated politics and in these two colonies, as it did in the other southern colonies. When the interests of the Georgia and Virginia gentry were in conflict with those of the English Crown and his chief deputy and representative in the colony, the Governor, the Councilors were strongly inclined to ally themselves with members of their own class in the elective chamber of the General Assembly and oppose the Governor's policy initiatives and proposals.

In Georgia, political conflict between the Council and the Governor undermined the English concept of the "King-in-Council" and the application of that concept to colonial ngovernment, the "Governor-inCouncil." The political conflict in Georgia undermined the idea of the Governor meeting and consulting with the Council prior to taking official action and each officially announced or recorded decision of the Governor being a decision jointly arrived at by the Governor and Council, by the "Governor-in-Council." Very early in the evolution of the Georgia governmental system, the Governor and the Council became competing power centers in the colonial government. More often than not, the Council of State and the Commons House of Assembly were political allies in conflicts with the Governor.

Appointed by the Proprietor in Maryland, Delaeare and Pennsylvania, the members of the Council were expected to serve the Proprietor's interests. In Pennsylvania, the Council did not function as an upper house of the legislature and was confined to serving as the Governor's advisory body and assisting the Governor in carrying on his executive and administrative functions.

Popularly elected in Connecticut and Rhode Island, the upper house of the legislature, like the lower house, represented the interests of the voters in the colony.

        The Colonial Judiciary -- A System of Courts in the Colony. Each of the colonies had a system of courts. In all of the colonies, the judges were appointed by the Governor, with consent of the Council required in same colonies.

At tha apex of each colony's system of courts was a supreme court, of sorts. This top colonial court, variously styled as the "High Court of Justice" and the "Court of Appeals," was composed of either judges appointed by the Governor or the Governor and the Council of State sitting together as a court.

Colonial judges appointed by the Governor did not have the advantage of judicial independence, since they could be dismissed and certain kinds of courts could be established by the executive branch of the colonial government deciding and acting alone.

4. Government and Political Culture in Colonial North America:

During the colonial period, most of the people residing in the thirteen colonies that eventually became the thirteen original states of the U.S.A. saw the British Constitution as a simple model for their own colonial governmental systems. Most of the colonists were convinced that protection of their rights and vital interests could be obtained and made secure through full extension and application of the long-standing English tradition of liberty under law to the North American colonies. Their perception of the British Constitution was similar to that of the people dwelling in Britain at the time, i.e., perception of that Constitution as a mature compromise among differering and conflicting segments of society -- a compromise concluded after centuries of strife and confirmed by the Bloodless Revolution of 1688, the Constitutional Settlement of 1689-1701, and the succession of the Havoverians to the English throne. In the British system of balanced government, the threat of absolutism and tyranny, whether manifested in an overly powerful monarch or in unlimited rule by a majority or minority faction, was effectively checked by the requirement that all three of the major segments of society -- Crown, Lords, and the popular majority -- share political authority, all three taking part in governmental decision making on matters of law and public policy. Coupled with this balanced authority to govern society, the long-standing political tradition of English law -- consented to by King, Lords and Commons, and justly interpreted and applied by an independent judiciary -- was the primary means of protecting and preserving the subject's liberty and property.

To a certain degree, colonial governmental institutions resembled or operated in conformity with the British governmental system, as it was widely perceived by ther colonists. This situation, in combination with the fact that the colonial governments allowed the leaders of the wealthy and politically influential socioeconomic classes in the colonies to pursue and safeguard the vital interests of themselves and the classes they represented, goes a very long way in explaing why, for so many years, the lower chambers of the colonial legislatures did not conspire to destroy the prerogatives of the British Crown or those of the Proprietors. For the most part, the colonists saw themselves as loyal British subjects.

This largely congenial relationship between colonies and mother country came to an end, beginning in the 1760s, when the British home government in London changed its imperial policy from one of "salutary neglect" of the colonies to a policy of direct intervention and interference, the new policy involving Parliament's imposition of taxes on colonial economic activities (e.g., commercial transactions) and the efforts of the home government to more vigorously and strictly enforce the Navigation Acts. Colonial opposition and resistance to the new imperial policy led to a series of violent incidents and eventually to the outbreak of civil war, with the colonial Whigs (renamed "American Patriots") fighting the American Tories (United Empire Loyalists) and the British military forces sent by the home government to the colonies to suppress the armed rebellion. The rather nasty civil war led to the Declaration of Independence and the tranformation of the civil war into War of the American Revolution.

1. The American Revolution as a Conservative Revolution:

The American Revolution was conservative both in its goals and its outcome.

        The Conservative Goals of the American Revolution. The War of the American Revolution (1775-1783) had constitutional goals. The war did not begin as a struggle for outright independence from Great Britain. Initially, the objectives of the colonial rebellion did not include secession, or withdrawal, of the colonies from the British Empire, a severance of all political ties between colonies and mother country. According to the perceptions of the colonists who took up arms against British and Tory forces, the insurgents were fighting a civil war in defense of the "rights of Englishmen," the colonists' rights and liberties as British subjects under the British Constitution. In the eyes of the colonial rebels and their Whig leaders, they were defending rights long recognized by English law, tradition, and constitutional theory -- e.g., the right not to be taxed without the approval of their elected representatives in the colonial legislatures.

From the perspective of the American Whigs, or Patriots, it was not the colonists who were violating the Constitution and attempting to upset and overthrow the established order of things. Instead, it was the home government in London that was doing all this. The London government was violating the British Constitution in its attempt to deprive the colonists of their rights and liberties under that Constitution. It was the London government which, in acting to deny British subjects their rights and liberties under the Constitution, was seeking to upset and overtrrow the existing political and constitutional order.

When the Whig leadership decided on American independence as the objective of the war they were fighting, i.e., when the delegates to the Second Continental Congress in 1776, decided on adoption of the Declaration of Independence, they did so sadly, reluctantly, and in the name of the British Constitution.

From the American Whig perspective, the American insurgents were not truly radical or revolutionary. They were not seeking to bring about a great political and social upheaval, entailing a sharp break with the past and establishment of an entire "new order of things." The Americans were seeking to restore, not overthrow and destroy. The rebels were seeking to restore the rights and liberties taken from them by the Monarch and his London government. They were endeavoring to conserve, ie., preserve and protect, the existing Constitution, which was being violated by the London government. The objective of the colonists was to conserve the established constitutional and political order in the British Empire, while the King's government was attempting to upset and overthrow the established conbstitutional and political order.

In short, the objectives, or goals, of the American Revolution were constitutional and conservative. The goals of the American Revolution were restorative, not destructive. The goals were neither radical or revolutionary in the strict sense of the terms.

        The Conservative Outcome of the American Revolution. In character, the outcome of the American Revolution was conservative, not radical or revolutionary. There were no sharp breaks with the past, no great social, economic, or political upheavals. In describing the nature of the American Revolution and its aftermath, Russell Kirk, the noted American Conservative political philosopher and writer, has said:

    "By and large, the American Revolution was not an innovating upheaval, but a conservative restoration of colonial prerogatives. . . . Accustomed from their beginnings to self-government, the colonists felt that, by inheritance, they possessed the rights of Englishmen and, by prescription, certain rights peculiar to themselves. When a designing king and distant parliament presumed to extend over America powers of taxation and administration never before exercised, the colonies rose to vindicate their prescriptive freedom; and after the hour for compromise had slipped away, it was with reluctance and trepidation they declared their independence. Thus, men essentially conservative found themselves triumphant rebels, and were compelled to reconcile their traditional ideas with the necessities of an independence hardly anticipated."

            Russel Kirk, The Conservative Mind: From Burke to Eliot ( South Bend,
                    Indiana: Gateway, 1978), p. 63.

With the American Revolution producing no sharp breaks with the past, and no great social, economic or political upheavals, life in Anglophone North America did not undergo drastic, far-reaching change over a relatively short period of time, change which would have been the inevitable consequence of a true revolution (like, for example, the French Revolution or the Russian Revolution). In the former British colonies, during the period immediately following the American Revolution, the political powers that be as well as the economic and social order were pretty much the same as they had been before the Revolution. The political factions and socioeconomic classes that controlled the elective chamber or chambers of each colonial legislature prior to the Revolution pretty well controlled the American governments established during the Revolutionary War.

The American state governmental systems established under state constitutions adopted during the Revolution were similar to the colonial governmental systems, as they had evolved by the year 1774, immediate before the war between the colonies and the British home government. The new state governments were largely the old colonial governments operating in a different political context.

Thomas Jefferson, in commenting on the American Revolution and its outcome, said:

    ". . . the fact that Americans jettisoned a monarch and suddenly and without much internal debate adopted a republican government marked no great upheava."

2. State Governments Under the First State Constitutions:

        Very Little or No Radical, Far-Reaching Change in The Character of Government. During the months prior to adoption of the Declaration of Independence in July, 1776, the Second Continental Congress called on the former colonies to adopt state constitutions recognizing and taking into account the changed political circumstances -- the fact that the former colonies were no longer colonies and were now independent, sovereign states. When the states began to follow suit, their work in drafting, proposing, and obtaining the adoption of state constitutions, for the most part, did not lead to a rash of radical, far-reaching changes in the character of government in the thirteen former colonies. While the enterprise in state constitution making did entail some alerations in government, which were very important in a few cases, the new constitutions and the state governments which were founded upon them reflected little enduring change in the basic ideas and concepts regarding (1) the form, structures, and processes of government and (2) the relationship between government and the individual subject or citizen. The new state governments, with the possible exception of that in Pennsylvania, were, in effect, the former colonial governments in a changed political context.

        Written State Constitutions. In reconstituting themselves as independent, sovereign states with governments that were republican in form, the thirteen former colonies accomplished this through the adoption of written constitutions. In eleven of the thirteen states, the constitution were drawn up and then proposed and adopted. Two states, Connecticut and Rhode Island, kept their colonial charters and used them as state constitutions, merely amending the charters to remove any reference to the British Crown or to political ties with Great Britain.

        The Character of Government Under the Early State Constitutions. To understand the character of American state government during the revolutionary and immediate post-revolutionary periods, the student of political and constitutional history must give due consideration to the early American state constitutions. The student know the answers to the following important questions: What did the state constitutions replace? What fear and suspicion were manifested in these constitutions? How did they allocate political authority among the major organs of state government? Why?

        What the State Constitutions Replaced. The new state constitutions replaced the colonial charters and royal commissions.

        The Fear and Suspicion Manifested in the State Constitutions. The early state constitutions reflected a fear and suspicion of both strong executive power and strong judicial power. This was the consequence of the experience of the colonists under British rule, particularly in the royal colonies, where the Governor and the judges (1) represented the interests of the British Crown and (2) were in continuous conflict with the elective chamber of the colonial legislature, the chamber which represented the interests of the voters in the colony.

        Allocation of Political Authority Among the Organs of State Government. Because of the Americans' great fear and suspicion of executive and judicial power during the revolutionary and early post-revolutionary periods, the early state constitutions (1) granted most of the powers of government to the state legislature and (2) left the Governor and the courts weak.

        The Early State Constitutions and the Underlying Premises of American State Government. Political ideas, concepts, and theories which were reflected in the state constitutions, and upon which the state governmental systems were based, included:

    Popular Sovereignty: Recognition of the people as the source of all legitimate political authority. Sovereignty, the supreme and ultimate power of the sovereign state, resides in the people, i.e., the whole people organized as a state, or political community. (Source of the premise: John Locke, Second Treatisie of Civil Government, 1681.)

    Limited Government: The idea that (1) the legitimate power of government is limited by law and (2) government may exercise only those powers granted by the people through the basic law of the constitution.

    The Rule of Law: The idea that the law is supreme and restricts the discretionary authority of government officeholders. The rule of law is the idea that public officeholders, like ordinary citizens or subjects, are subject to the law and that these officeholders must operate within the limits set by law.

        Major Features of the State Governmental Systems Under the Early State Constitutions. Major features of the state political regimes under the early state constitutions included (1) constitutional guarantee of the basic rights and liberties of the individual, (2) a strong legislature and a weak executive, (3) formal separation of legislative, executive, and judicial branches of government, (4) a weak judiciary, and (5) legislative bicameralism.

        Constitutional Guarantee and Protection of Civil Liberties. Each of the state constitutions contained guarantees of the basic rights and liberties of the individual. In each of seven states, the state constitution contained a separate "Bill of Rights," or "Declaration of Rights." In the other six states, each state constitution contained guarantees of individual rights and liberties scattered throughout the constitutional document. In these six states, civil liberties were protected through random constitutional clauses specifying and guaranteeing particular rights and liberties, supplemented by reliance on English common law, as it had been applied to the colonies and was, at the time, still in effect.

        A Strong Legislature and a Weak Executive. The early state constitutions greatly diminished the power of the Governor. The position of the Governor in state government was reduced to that of a mere figurehead, a chief executive in name only. In most states, the Governor was limited to a term of one year. In every state except New York and Massachusetts, the Governor was selected by the state legislature. In every state except Massachusetts and South Carolina, the Governor was denied the power to veto bills passed by the legislature.

A great deal of the power excecised by the Governor during the colonial period was vested by the early state constitutions in the state legislatures. As a consequence, early American state government was characterized by legislative supremacy -- i.e., legislature-dominated state government, government dominated by the ligislature, government with a preponderance of political power in the hands of the legislature and with a weak and impotent "chief executive" subservient to the interests, pressures, and demands of the legislative majority and its leaders.

        Formal Separation of Legislative, Executive, and Judicial Organs of Government. In each state, the state constitution divided the state government into three separate and distinct branches, legislative, executive and judicial, and granted each of the three branches of government its own separate set of powers. However, the powers assigned to the executive and judicial branches was far less potent than the authority granted to the legislature. Hence, the principle of separation of powers as well as that of checks and balances was severely diluted and weakened

        A Weak Judiciary. Under the early state constitutions, the courts were subordinate to the legislatures. Judges were elected by state legislatures or appointed by Governors who were subordinate to their respective legislatures.

As regards mode of selection of state judges, Georgia was the notable exception. The Georgia Constitution provided for direct popular election of judges. This is the method of choice followed today in most of the fifty states.

Under the early state constitutions in most states, the judges were elected or appointed to rather brief terms of office, could be easily removed from office by the legislatures, and therefore lacked the security of tenure that was necessary for judicial independence.

        Legislative Bicameralism. In each state except Pennsylvania, the constitution provided for a bicameral legislature. In Pennsylvania, the legislature was unicameral, as it had been during the colonial period.

        The Pennsylvania Constitution of 1776 -- The Most Radical of the Early State Constitutions. The most radical and least conservative of the early state constitutions was thr one adopted by the Commonwealth of Pennsylvania. Under the early Pennsylvania Constitution, the state governmental system was radically democratic in character. Adoption of the Pennsylvania Constitution was a victory for radicalism.

        Radicalism and Radical Democracy. Radicalism in English-speaking North America during the late 1700s meant radical democracy, and the radical democrats of the time advocated thoroughgoing transformation of the institutions of constitutional, representative government which the Americans had inherited from the colonial period. Radical democrats, who constituted the more radical wing of the American Whig, or Patriot, movement, demanded a rapid and total democratization of institutions of Anglo-American constitutional, representative government at the state level. In their efforts to influence and shape the provisions of the early state constitutions so as to produce documents mandating rapid and total democtatization of American state government, the radical democrats operated on the basis of five key assumptions:

    Individual liberty and the general welfare could be best protected and safeguarded by a governmental system characterized by steaight majority rule, majority rule unencumbered by any devices designed to balance minority interests against the interests of the popular majority.

    A popularly elected legislature could be trusted not to abuse political authority, but the executive and the judiciary could not be trusted to refrain from abusing authority.

    While the constitutional grant authority to government should be sevely limited, that constitutionally limited authority should be concentrated in a popularly elected legislature. The legislature should be the supreme and dominant organ of government, and the executive and the courts should be subservient to the will of the legislature.

    To protect the people from executive and judicial tyranny, the constitution must ensure rapid rotation in office by stipulating very short terms for executive and judicial officers and by imposing severe limitations on their eligibility for reelection.

    To ensure majority rule, property qualifications for voting in elections for legislators and other government officers should be eliminated and the electoral franchise, or suffrage, extended to all free white male residents.

Radical democrats in late eighteenth century America tended strongly to favor simple, unchecked democracy -- unlimited or virtually unlimited rule by a single popular organ of government, e.g., a popularly elected unicameral legislature in which all or virtually all political authority was concentrated. Democratic radicals endeavored to lodge overriding political power in a single governmental organ dominated by a single majoritarian interest and to thereby facilitate quick and easy majority decision making in gobernment.

        The Radically Democratic Scheme of State Government Under the 1776 Pennsylvania Constitution. Seemingly determined on a complete abandonment of the past, a rejection of everything in Pennsylcania's colonial charter simply because it was part of the old proprietary governmernt, the constitution makers in Pennsylvania produced a constitution that provided for an unbalanced form of state government.

The Pennsylvania Constitution provided for a unicameral legislature with paramount powers -- a single-chamber legislature styled the "House of Representatives of the Commonwealth or State of Pennsylvania." The Constitution vested the "supreme legislative power" in the House of Representatives. There was to be no upper legislative chamber to protect minority rights and intereste by counteracting and counterbalancing the popular, or majoritarian, interest represented in the House of Representatives.

Members of the Pennsylvania House of Representatives were to be elected for one-year terms. The Representatives were to be elected by direct popular vote, elected by the voters in the counties and the City of Philadelphia. The voters in each county, as well as those in the City of Philadelphia, were to elect a number of Representatives in proportion to the number of taxable residents of the county or city. There were to be no property qualifications for either the voters voting in elections to choose Representatives nor for the elected Representatives holding the the House seats to which they were elected.

In short, the House of Representatives was to be popularly elected via a broad-based electoral franchise approasching universal free white adult manhood suffrage, and was to be based on the principle of legislative representation according to population -- representation in proportion to each local election district's population.

The Pennsylvania Constitution provided for a plural executive -- a many-headed top executive authority in the state government. The Constitution vested "supreme executive power" in a popularly elected, twelve-member Executive Council, including a President and Vice-President chosen from the twelve elected Council members. Every three years, the qualified voters in each of Pennsylvania's eleven counties, as well as those in the City of Pennsylvania, were to elect one member of the Executive Council. The President and Vice-President of the Council were not to be popularly elected to those positions, but were to be chosen by a method of indirect election. They were to be elected from the Council membership by a joint ballot of the Council and the House of Representatives sitting and voting in the same room.

The President of the Executive Council was by no means the equivalent of the governor in another state or in Pennsylvania prior to the American Revolution. The President was little more than presiding officer at meetings of the Council. In decisions of the Council, the President, as well as the Vice-President, was a single member with a single vote -- one voice in a plural body of twelve.

The authority of the Executive Council as a whole was severely restricted. The Council was given the power to appoint judges, naval officers, Judge of the Admiralty, Attorney-General, and all other civil and military officers, except those whose appointment or election was vested in the House of Representatives of in the voters. The Council's power of appointment was rather weak, since certain offices were filled by the legislature and numerous others by the voters.

As mentioned above, the Pennsylvania Constitution provided for a wide franchise approaching universal free white adult manhood suffrage. Under the Constitution, all freemen twenty-one years old or older, who had resided in the state for at least one year and paid public taxes during that time, and all men who had reached the age of twenty-one years and were the sons of resident freeholders, but had not paid taxes, were entitled to vote in elections for Representatives, members of the Executive Council, and other popularly elected government officeholders.

To ensure rapid rotation in government office, the Constitution provided that a Representative was not to serve more than four one-year terms, and a member of the Executive Council was not to serve more than one three-year term in any given seven-year period.

As regards the Pennsylvania judiciary, the judges of the Supreme Court of Judicature were to be paid fixed salaries, were to serve seven-year terms, and were to be eligible for reappointment at the ends of their respective terms. However, they were to be removable for misbehavior at any time by the House of Representatives. In Pennsylvania, judicial independence stood on a rather weak foundation.

        Pennsylvania's Radically Democratic State Government in Operation. With concentration of the powers of government in a popularly elected unicameral legislature, with weak executive and judicial institutions and with a lack of divided and balanced political authority, the Pennsylvania House of Representatives soon demonstrated the truth of the conservatives' contention that a government, though democratic, could be just as tyrannical -- if not more so -- than an autocracy, where unlimited power was in the hands of one person, or an oligarchy, where such power was in the hands of a small group. The actions of the Pennsylvania legislature showed that there was such a thing as popular despotism, or tyranny of the majority, that no one and no group of people, not even a popular majority and its elected representatives, could be trusted with undivided, unchecked, and unbalanced political power. With concentrated and unrestrained power placed in the same hands, the temptation of imperfect human beings to abuse that power and rule society in a tyrannical fashion is entirely too strong to resist.

The House of Representatives in Pennsylvania deprived Quakers of the right to vote in elections, ignored the right of the individual to freedom of speech and freedom of religion, disregarded and violated the right of the individual to trial by jury in criminal cases, and intimidated and manipulated the courts.

3. Intercolonial & Interstate Efforts Toward Unity and Joint Action Prior to the U.S.     Constitution -- The Continental Congress and the Articles of Confederation.

Efforts toward concerted action by the states to deal with common problems during the revolutionary and immediate post-revolutionary periods included the the Constnental Congress of 1774-1761and the Articles of Confederation, the first attemp at a national constitution, which was in effect from 1781 to 1789. The Continental Congress, in fact, consisted of two congresses -- the First Continental Congress and the Second Continental Congress.

        The First Continental Congress (1774). Meeting in Philadelphia in 1774, the First Continental Congress was an intercolonial assembly composed of delegates sent from twelve of the thirteen colonies. The First Continental Congress, with Georgia not represented, drew up and adoped a resolution, the Declaration of Rights and Grievances. This resolution claimed for the colonial legislatures exclusive power to make and provide for the enforcement of laws within their respective colonies, with the colonial laws being subject to veto by the Crown only and totally immune to negation by act of Parliament.

The First Continental Congress convened in an atmosphere in which the colonists still considered themselves loyal British subjects and believed that they could reason with the British home government and obtain recognition of their rights and liberties under the British Constitution and under the colonial charters and royal commissions.

        The Second Continental Congress (1775-1781). The Second Continental Congress, an internalcolonial assembly that soon became an interstate assembly, began meeting in 1775, after the civil war between Britain and the colonies had begun. Composed of delegates from all thirteen states, the Second Continental Congress (1) drafted and adopted the Declaration of Independence, (2) conducted the War of the American Revolution, and (3) served as the de facto central government of the U.S.A. until tha adoption of the Articles of Confederation in 1781.

The Second Continental Congress had no formal-legal basis -- no constitutional foundation. It was an informal union or alliance of the states, an association of sovereign states held together by extreme emergency, by the common danger they faced and the consequent need for joint action to defend themselves against a common foe and prosecute the Revolutionary War to a victorious conclusion. The Second Continental Congress not only waged war, but also issued currency, borrowed and loaned money, exchanged diplomatic representatives with foreign governments, concluded treaties and military alliances, and performed other functions normally performed by the central government of a sovereign state.

While the delegates to the Second Continental Congress were chosen by their respective state legislatures, those legislatures had absolutely no conception that, by sending delegates to the Continental Congress, the states had given up any of their rights and powers to that body or must feel themselves bound by its decisions. In spit of this, the Second Continental Congress managed bring the war to a successful conclusion, win American independence, and play a crucial role in developing an American national consciousness, a common national identity and loyalty -- a spirit of American nationalism, or national patriotism, which led to the adoption of the Articles of Confederation in 1781 and, then, to the Federal Constitutional Convention of 1787, its drafting of the United States Constitution and submitting it to the thirteen states, and the Constitution's ratification by those states.

        The Articles of Confederation (1781-1789). The Articles of Confederation, which will be discussed in greater detail in Section B, Part Five, provided for a loosely-knit union of states and a very weak and impotent central government over the union. The union was nothing more than an association of virtually sovereign states. The unicameral Congress, based on the principle of equal representation of the states in that assembly, was given very limited powers, a very difficult procedure for obtaining the passage of legislation, and no effective means of enforcing its decisions. The Confederation central government lacked the power to tax and regulate interstate and foreign commerce and was unable to raise and maintain military forces for the common defense of the states. The existence and effective operation of the central government depended on the voluntary cooperation of the states, cooperation which each state was free to extend or withhold at will.

The loosely-knit union and weak central government set up under the Articles of Confederation were in accord with the political attitudes and beliefs of the radical democrats. In supporting this constitutional arrangement and adamantly opposing any efforts to form a more closely-knit union of states with a stronger and more powerful central government, the radical democrats were operating on the basis of two important assumptions:

    Since sovereignty (ultimate and supreme political authority) resided in the people of each state and the state was the agent or instrumentality of the sovereign people, most of the constitutional powers of government in the United States of America must remain in the hands of the states. Any union or association of the thirteen states in a larger political organization designed to function as a central government for the U.S.A. as a whole must, of necessity, be an instrument or agent of the states, subordinate to their will and exercising severely limited powers.

    Liberty could be much better protected and safeguarted in a small republic with a small population and a small, compact territory than in a large republic consisting of a large, diverse population dwelling in an extensive territorial area. In other words, the rights and liberties of the individual citizen were much safer under state and local governments than they would be under a central government exercising substantial authority over the entire U.S.A.

4. The American Political Order During theRevolutionary and Immediate     Post-Revolutionary Periods -- A Weak and Impotent Central Government and State     Governments Dominated by Their Legislatures.

        Political Attitudes That Shaped the Early American Political Order. The political attitudes that prevailed in America during the revolutionary and immediate post-revolutionary period drove the Americans to establish a political order in which the state governments were dominated by their respective legislatures and the central government was woefully weak and impotent. These prevailing American attitudes related to (1) centralized government, (2) distribution of governmental power between the central government and the states, and (3) the branch of government that should be trusted with important powers.

        The General Attitude of Americans Toward Centralized Government. The Americans were extremely feaful of centralized political power and any apparent attempt to set up a centralized government over the entire American nation.

        The Attitude of Americans Toward Distribution of Political Authority Between the Central Government and the States. The Americans identified tyranny with centralized government and liberty with decentralized government. In other words,the Americans associated liberty with the lack of a strong central government -- with a situation in which the thirteen states were sovereign or virtually sovereign. State rights and local self-government were the very definition of liberty.

        The Attitude of Americans Regarding Which Branch of Government Should Be Instrusted with Important Political Powers. While the American were distrustful of the executive branch of government and identified it with tyranny, they associated liberty with the legislature. Therefore, Americans were generally in favor of vesting the important powers of government in the legislative branch and leaving the executive too weak to threaten liberty.

        Source of the Early American Political Attitudes Supporting Lack of Balance in State Governments & Inadequate Political Authority in the Central Government: The source of American political attitudes dictating unbalanced state governments dominated by their respective state legislatures and a weak and impotent central government is to be found in the political experience gained during the colonial period -- the experience the colonial political elites acquired from having to deal with the problems and frustrations stemming from British efforts to govern the colonies. Early American political attitudes grew out of the colonists' perceptions of (1) the true character of the British Empire, (2) the constitutional relationship between the colonial governments and British home government in London, and (3) an apparent endeavor on the part of the home government to substantially and radically alter the character of the Empire and the relationship between colonies and home government. Especially important in the formation of the relevant colonial and early American political attitudes was the trouble the colonists, after 1763, had with the imperial government in London, trouble growing out the home government's attempt to tighten its administrative supervision and control over the colonies and exercise direct legislative and tax jurisdiction in the colonies -- implementation of the new imperial policy, which the colonists saw as an endeavor to establish a considerably more centralized imperial system, i.e., a far more centralized government for the whole British Empire, with the central government headquarted in London dictating policy governing many issues formerly decided by the colonial legislatures.

Reinforcing the political attitudes of early Americans were the experiences the colonists had had with colonial chief executives -- the struggle for power within each colony between the elective chamber of the colonial legislature and a non-elective chief executive with potent powers, a struggle in which the elective legislative chamber had represented the interests of the colonists in conflicts with the Governor, who represented the interests of the Crown or the Proprietor. Particularly important in reinforcing early American political attitudes was the unpleasant experience that the residents of royal colonies had had with very stern and sometimes brutal royal governors.

        The Early American Political Order and the Conservative Reaction: The defects of the early American political order became evident soon after political issues and controversies began to emerge under that order. The problems created by the absence of a strong and effective central government and by state governments dominated by their respective legislatures caused increasing political discontent among the more conservative elements within American Whiggery, the political faction that supported the American Revoluttion.

        Conservatism in Anglo-America During the Late 1700s. In English-speaking North America during the late eighteenth century, conservatism meant constitutional conservatism. And among the more conservative American Whigs, constitutional conservatism meant commitment to defense and preservation of traditional Anglo-American institutions of constitutional, representative government. In the year 1776, when most of the thirteen states drafted and adopted their first state constitutions, many conservative Whigs resisted the trend toward state legislative supremacy and deplored the establishment of state governmental systems which they perceved as deviating, in their fundamental features, very far from the governmental systems under which Anglo-Americans were governed during the colonial period and to which they were accustomed -- systems in which political authority was divided among the principal organs of colonial government, the Governor and the two chambers of the legislature, with no single center of power dominating the entire system. These early American conservatives saw legislature-dominated state government as deviating dangerously far from the established political institutions and practices of the colonial period. In general, the conservative preference was for a strong and independent chief executive and for a division and balance of political power between the two houses of the legislature and among the legislative, executive, and judicial branches of government.

American conservatives of the late eighteenth century favored institutional devices which functioned to slow down and make difficult governmental decision-making on issues of domestic public policy. To avoid governmental decisions and actions likely to undermine the unity, stability, and vitality of society, conservatives insisted on institutional devices that would force the government to proceed cautiously, at a slow pace, spending a considerable amount of time seriously debating and deliberating on proposed legislation and giving careful, prolonged consideration to the possible longterm effects of major innovations in domestic public policy. These devices included (1) a truly bicameral legislature, with each house having the power of absolute veto over action favored by the other house, (2) an independent chief executive possessing a strong veto over bills passed by the legislature, and (3) an independent judiciary, with judges enjoying security of tenure in office and answerable neither to the executive nor to the legislature for their decisions in legal cases and controversies coming before them for hearing and judgement.

American conservatives during the late 1700s generally preferred political arrangements which gave the wealthy and propertied minority within society a strong voice in major governmental decisions on public policy. Such arrangements included high property qualifications for voting in elections to choose government officeholders and even higher property owning requirements for the right to hold government office. A favorite device of conservatives was an upper chamber of the legislature which (1) was elected by some method of indirect election, (2) possessed the power of absolute veto over legislation supported by the popularly elected, lower chamber, and (3) was composed of members serving long terms and chosen from the "better element" within society. Such an upper legislative chamber, consisting of persons of high socioeconomic status owning substantial wealth and property, was expected to represent and be highly responsive to the views and interests of the wealthy and propertied classes, protecting the rights and vital interests of this "aristocratic" minority against the aims of any mob-minded, tyrannical popular majority that might win control of the lower house of the legislature and attempt to use the taxing and lawmaking authority of government to deprive the minority of its honestly acquired property and redistribute it among members of the economically less successful and less prosperous majority.

Conservatives believed that, in order to protect the minority from tyranny of the majority, the governmental system must contain a breaking action against unlimited majority rule. That is, they advocated state constitutional provisions which included within the framework of constitutional, representative government devices for delaying governmental decisionmaking -- devices for preventing quick action, for slowing down majority decisionmaking. Devices to break majority rule and provide opportunity for minority veto of governmental action favored by the majority -- e.g., strict legislative bicameralism (with each house of the legislature able to block and prevent passage of legislation supported by the other house), separation of powers coupled with checks and balances, and an "aristocratic" body incorporated into the governmental system -- were needed primarily for the purpose of protecting the rights and interests of the minority of persons owning substantial wealth and property. Such devices were to perform this function by ckecking and counterbalancing the representatives of the economically less well off popular majority -- i.e., counteracting and restraining officeholders in the "democratic," or "popular," organ of government, namely, the lower chamber of the legislature.

In brief, endeavors to draft state constitutions providing devices to protect minority rights and prevent majoritarian tyranny were the work of conservatives. Conservatives sought to "restore," or "reestablish," the balanced government of the colonial period, or what they perceived to have been balanced government during the colonial era. They sought to restore government characterized by maintenance of a balance of power among major political institutions representing differing and competing interests within a system of constitutional, representative government.

When conservatives referred to the "popular majority," or "democratic majority," the people who were to elect the lower house of the legislature and whose interests were to be represented in that body, they meant the small landholders and the skilled craftsmen. Conservatives did not believe that persons owning no property at all should be granted the right to vote in elections. Not only did conservatives believe in high property qualifications for voting in elections to choose the chief execttive and the members of the upper chamber of the legislature (or the members of an electoral college that would choose the upper chamber), they also thought that persons voting in elections for members of the lower legislative chamber should be required to own property of a certain value, though of a lower value than the property owned by voters in the elections for chief executive and for membership in the upper legislative house or in the electoral college. Conservatives expected the small property owners -- the socioeconomic stratum then called the "middling element," or "middling sort," and what contemporary sociologists call "an early middle class" -- to control the lower house of the legislature, while the "better element" (the owners of substantial wealth and property) controlled the upper house and the chief executive's office. The "meaner sort" (those persons without property and without the ambition to acquire property honestly) would not vote in elections and would have no voice at all in the government.

Government, according to conservative expectations, would be in the hands of representatives of the property owners, both small property owners and large property owners. Each of the two main strata of society -- the large middle class of small property holders and the smaller upper or upper-middle class of large property holders -- would have a major share of the governing power. Each of the two classes would have a strong voice in governmental decision making and therefore the ability to protect its own interests.

How did late eighteen century American conservatives justify this set of political arrangements -- arrangements giving the property owning classes control of the government and excluding the propertyless lower stratum from the political process? The conservative rationale was that the person who owned some property, however large or small it might be, had a stake in society. The person owning property and therefore having a stake in society stood to lose a great deal from a breakdown of government and society. He stood to lose signicicantly more than the person who owned no property. This would make the property holders more responsible in political affairs. Limiting political participation -- i.e., voting in elections and holding public office -- to the property owners would make government significantly more responsible than it would be if the propertyless "meaner sort" were permitted to participate in the political process.

Giving the large property owners a major voice in governmental decision making would make the government even more responsible. The wealthy and propertied "better element" had a much larger stake in society. If a breakdown in society and government occurred, each member of the "natural aristocracy" stood to lose considerably more than any person who owned only a small amount of property. This would male large property holders even more responsible than the small property holders in their participation in politics and public affairs. The stability and viability of the political and social system would be ensured.

        The Conservative Reaction -- 1777-1780. By late 1776 and early 1777, a conservative reaction had begun to set in against state government dominated by the legislature and the legislature, in turn, dominated by the majority in the popularly elected lower chamber. Certain of the more conservative groups within the American Whig movement tended strongly to see the political situation in most states as one of unlimited rule by an irresponsible popular majority -- "popular despotism" and "simple, unchecked democracy" -- or one of absolute rule by the dominant elites and factions in the legislature, i.e., "legislative despotism," or oligarchy. These conservative Whigs gained more and more political supporters and allies, as many people, observing or hearing about state government in action in those states that had adopted their constitutions early in the process of state constitution making, became convinced that what they perceived to be a very dangerous trend toward political instability, chaos, mob rule, and loss of protection of private property rights and other civil liberties in the states had to be stopped.

Since New York and Massachusetts adopted their respective constitutions late in the game, the two states had the benefit of awareness of the mistakes other states had made in drawing up and adopting their respective state constitutions. The political leaders in New York and Massachusetts, operating within the context of a shift of American public opinion in favor of balanced government, with stronger and more independent executives and judiciaries, along with a greater balance of power between lower and upper houses of the legislature, set out to obtain the drafting, ratification, and adoption of state constitutions that provided for systems of divided and balanced political authority in state government. In their endeavor to bring this about, the New York and Massachusetts political leaders took advantage of and derived benefit from the conservative reaction -- the shift in the popular mood from democratic radicalism to constitutional conservatism.

Also benefiting from this conservative reaction were those American political leaders who would soon mount a drive to secure the adoption of a new national constitution to replace the Articles of Confederation and provide the U.S.A. with a stronger and more effective central government -- the drive that led to the Federal Constitutional Convention of 1787, the drafting of the United States Constitution, and its ratification and adoption in 1789.

The Federal Constitutional Convention and the formation of the American federal union with a strong central government will be discussed in Section B, Part Five. Here, we will deal with two early products growing out of the conservative reaction -- the New York Constirution of 1777 and the Massachusetts Constitution of 1780.

5. The New York Constitution of 1777 -- The Scheme of State Government:

The State of New York adopted a state constitution which had many important conservative features. The Constitution reflected rejection of the principle of legislative supremacy, provided for a comparatively strong governor, and established formidable barriers to unrestrained popular rule -- bulwarks against tyranny of the majority.

        The Governor of New York -- His Position and Power. The New York Constitution (1) vested in the Governor "the supreme executive power and authority of the state," (2) provided the Governor with a three-year term of office, which was a comparatively long term at the time, (3) set no limit on the Governor's eligibility for reelection, making him indefinitely reeligible, i.e., permitting him to serve as many terms as the voters were willing to elect him to serve, and (4) provided that the Governor would be chosen by statewide direct popular election, rather than chosen by appointment by the State Legislature.

In providing for direct popular election of the Governor, the New York Constitution made the Governor largely independent of the Legislature. The State Constitution gave the Governor a separate and independent power base, a power base separate from and independent of that of that of the Legislature. The Governor was not dependent upon the Legislature for election and reelection, i.e., the Governor was neither chosen by nor directly responsible to the Legislature. Instead, he was chosen by and directly responsible to the voters of the entire state. Thus, the Governor had his own popular constituency; and this was a statewide constituency, which was quite different from the local constituencies of individual members of the Legislature. The electoral independence provided the Governor was a very large step in the direction of making the state governorship a very powerful office.

The New York Constitution gave the Governor what was, for that time, an exceedingly potent group of powers. The Governor was given authority to (1) serve as Commander in Chief of the State Militia and as Admiral of the State Navy, (2) convene the New York State Legislature on extraordinary occasions, i.e., call special sessions of the Legislature, (3) prorogue, or adjourn, the Legislature for limited periods, (3) grant reprieves and pardons to persons convicted of state crimes specified and defined in New York State law, (4) inform the Legislature on the condition of the State, (5) recommend to the Legislature matters for its consideration, and (6) take care that the laws of the State be faithfully executed.

The delegates to the New York State Constitutional Convention refused to hamstring the Governor by requiring him to share his constitutional decision-making and action-taking authority with an executive council. The powers granted to the Governor by the Constitution were to be exercised by him alone, without his needing the consent of the majority of members of a collegial body. Two exceptions to this constitutional arrangement were the Council of Appointment and the Council of Revision, both of which will be discussed below.

The New York Constitution's provision for a strong and independent chief executive was a conservative feature of the Constitution. Provision for a strong and independent governorship was, to a large degree, a return to to the colonial practice -- a return to the customary and traditional pattern of government in English-speaking North America.

        The New York Legislature -- Assembly and Senate. The New York Constitution provided for a bicameral state legislature, with both chambers of the Legislature to be chosen by direct popular vote. The lower chamber, styled the New York Assembly, was to consist of seventy members elected to serve one-year terms. The seventy members of the Assembly were to be elected from each county, with the voters in each county eventually choosing a number of members based on that county's population. Initially, the number of Assembly members a county elected was constitutionally fixed, but was to be corrected, or adjusted, on the basis of data subsequently obtained from seven-year censuses -- adjusted and reapportioned so that the number of representatives in the Assembly from each county would be justly proportioned to the number of qualified voter in the county.

The upper chamber of the Legislature, styled the New York Senate, was to consist of twenty-four members elected to serve four-year terms, staggered. The Senators were to be elected from four large senatorial districts within the State, with the terms of one-fourth of the twenty-four Senators expiring every year -- a different fourth each year. As in the case of the member of the Assembly elected from each county, the number of Senators elected from each senatorial district was, at first, constitutionally fixed (Southern District, nine; Middle District, six; Western District, six; and Eastern District, 3), but, after each seven-year census, the number was to be adjusted and reapportioned on the basis of the latest population data for the district, thereby assuring that the number of Senators from each district would be justly proportioned to the number of qualified voters in the district.

          Voter Qualifications -- Requirements for Participation in New York Elections. For a man to be eligible to vote in elections of members of the Assembly, he had to be a freeholder -- the owner of an estate in land -- and the freehold, or estate, had to be worth at least twenty pounds. To be qualified to participate in the election of Senators or the Governor, a voter was required to own a freehold worth at least 100 pounds title clear, i.e., a freehold worth at lease 100 pounds over and above all debts changed on the freehold.

The constitutional foundation and structuring of the New York Legislature, coupled with the property holding requirements for exercise of the electoral franchise, constituted a conservative feature of the Constitution. This was particularly true, as regards the New York Senate. The New York Assembly was designed to be chosen by the middle class of small property owners and controlled by that socioeconomic stratum, while the Senate was to be selected and controlled the upper or upper-middle class of large property holders. With strict legislative bicameralism -- with each chamber of the legislature having an absolute veto over legislative action favored by the other chamber -- the two classes of property owners could check and counteract each other, each stratum protecting its own rights and vital interests against irresponsible or tyrannical measures advovated by the other.

        The New York State Judiciary --State Judges and Judicial Indeperndence. In establishing the judicial branch of state government, the New York Constitution provided for a degree of judicial independence. The judges of the Supreme Court and the senior judge of each county court were to be entitled to hold their respective offices during good behavior or until "they shall have respectively attained the age of sixty years."

Providing a degree of judicial independence for the state judiciary was, of course, an important move in a conservative direction.

        Balanced Government -- A Balance of Power in the New York Governmental System. The New York Constitution of 1777 reflected the conservatives' belief in balanced government -- a system of government in which political authority is divided up and allocated among several separate and largely independent organs of government, governmental organs which represent constituents with varying and competing interests and have a vested interest in checking and opposing each other and thereby maintaining a balance, or equilibrium, of power in the governmental system and preventing any single institution of government or any single political faction or interest from dominating the entire system.

The 1777 New York Constitution was the first of the early American state constitutions to establish a true balance, or equilibrium, of power among the three branches of government, legislative, executive, and judicial. The Constitution not only granted to the Governor a relative potent set of powers, but also vested in the New York Legislature the full measure of the legislative power of the State of New York, Article II of the Constitution providing as follows:

    ". . . the supreme legislative power within this State shall be vested in two separate and distinct bodies of men; the one to be called the Assembly of the State of New York, the other to be called the Senate of the State of New York; who together shall form the Legislature, and meet once at least in every year for the despatch of business.

Moreover, a balance of power was established between the two chambers of the New York Legislature, between what conservatives saw as the interests of the popular majority represented in the Assembly and the interests of the aristocratic minority represented in the Senate. The latter would safeguard the rights and vital interests of the minority by counteracting and counterbalancing the tendency toward, majoritarian tyranny, or simple, unchecked democracy, in the Assembly. According to conservative perceptions and expectations, the Assembly, with its members elected to very short terms, would undergo rapid changes in membership, be highly susceptible to intimidation by the popular pressures of the moment, and very likely to be spooked into passing hasty and unwise legislation -- measures that would seriously threaten minority rights and interests. With Senators elected to longer terms and with slower changes in the Senate's membership, the Senate would, to a great extent, be insulated from momentary popular pressures and would, in all probability, function as a conservative counterweight to a more radical Assembly, the Senate exercising the power of absolute veto over state legislation to prevent the enactment of hasty, unwise, and harmful legislation favored by the Assembly.

In short, momentarily popular legislative activity deemed to be radical by the aristocratic-minded conservatives in New York was to be restrained by the state governmental system established under the New York Constitution. This arrangement was in keeping with the attitudes, values, and beliefs of New York conservatives, many of whom had advocated a political order with many of the features of an oligarchy, including high property qualifications for the Governor and his Councilora and a Senate whose members would be elected to serve life terms.

        Major Defects of the New York Constitution -- The Council of Appointment and the Council of Revision. Two innovations, the Council of Appointment and the Council of Revision, were the main defects in the 1777 New York Constitution -- defects that were impossible to perceive prior to their implementation after the Constitution had been adopted and state government began to operate under the Constitution.

The Constitution provided that the Legislature was to annually appoint four Senators, one from each senatorial district, to sit with the Governor as a Council of Appointment, which would appoint state execitive officers and judges. The Governor was to preside at meetings of the Council of Appointment, but he was to have only a casting vote in the Council's decisions. This arrangement deprived the Governor of the political power that he would have derived from control of patronage and of subordinate executive officers who would have been beholding solely to the Governor for their respective appointments, and this lack of gubernatorial control weakened the Governor's ability to direct, control, and manage the executive branch of state government.

The New York Constitution, in order to prevent the Legislature's hasty and unwise passage of "laws inconsistent with the spirit of this Constitution, or with the public good," created the Council of Revision. Article III of the Constitution provided:

    "the Governor for the time being, the Chancellor, and the judges of the Supreme Court, or any two of them, together with the Governor, shall be, and hereby are, constituted a Council to revise all bills about to be passed into laws by the Legislature; and for that purpose shall assemble themselves from time to time, when the Legislature shall be convened. . . . all bills which have passed the Senate and Assembly shall, before they become laws, be presented to the said Council for their revisal and consideration; and if, upon such revision and consideration, it should appear improper to the said Council, or a majority of them, that the said bill should become a law of this State, that they return the same, together with their objections thereto in writing, to the Senate or house of Assembly (in which soever the same shall have originated) who shall enter the objection sent down by the Council at large in their minutes, and proceed to reconsider the said bill. But if, after such reconsideration, two-thirds of the said Senate or house of Assembly shall, notwithstanding the said objections, agree to pass the same, it shall together with the objections, be sent to the other branch of the Legislature, where it shall also be reconsidered, and, if approved by two-thirds of the members present, shall be a law.

    ". . . if any bill shall not be returned by the Council within ten days after it shall have been presented, the same shall be a law, unless the Legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case the bill shall be returned on the first day of the meeting of the Legislature after the expiration of the said ten days."

The constitutional provision placing the executive veto power over legislation in the hands of the Council of Revision, a collegial body of which the Governor was a single member with a single vote, established a very cumbersome and restrictive procedure for vetoing acts of the Legislature and thereby weakened the ability of the chief executive to check and restrain the legislative branch of government.

However, creating the Council of Revision to exercise the executive veto over legislation was more a conservative than a radical move by the New York constitution makers. The large landowners were well aware that they could often control the Council of Revision and use that control to protect their own class interests. Hence, the Council of Revision exercising the veto was a bulwark for the traditional political and social order in New York and against radical change.

        The New York Constitution's Influence on the United States Constitution. The 1777 New York Constitution exerted considerable influence on the delegates to the Federal Constitutional Convention of 1787. The office of Governor of New York, as stipulated in the New York Constitution, was an important model guiding the Federal Convention delegates who drew up Article II of the United States Constitution -- the executive article of the Federal Constitution.

6. The Massachusetts Constitution of 1780 -- The Scheme of State Government:

Like the New York Constitution of 1777, the Massachusetts Constitution of 1780 reflected the conservatives' rejection of the principle of legislative supremacy, embraced their belief in balanced government, established strong barriers to straight majority rule, and provided for a truly bicameral state legislature, a comparatively strong chief executive, an independent judiciary, and a system of checks and balances among the three branches of government -- legislative, executive, and judicial -- and between the two houses of the legislature.

        The Massachusetts General Court -- A Bicameral State Legislature. Part Two, Chapter 1, Section 1, Article I, of the 1780 Massachusetts Constitution provided:

            "The department of legislation shall be formed by two branches, a Senate         and House of Representatives; each of which shall have a negative on the         other.

            The legislative body . . . shall be styled the General Court of Massachusetts."

        The Masachusetts House of Representatives. The House of Representative, the lower and more numerous chamber of the General Court, was to consist of members popularly elected annually, and seats in the House were to be apportioned among the towns on the basis of population, with the voters in each town entitled to choose at least one Representative and, beyond that, a number of Representatives based on the town's total number of legal residents. In other words, representation in the House of Representatives was to be based of the principle of representation according to population.

All money bills (tax and appropriations bills) were to originate -- be first introduced -- in the House of Representatives, but the Senate was to have the right to propose or concur with amendments to revenue and appropriations bills, as well as in cases of other types of legislative bills.

The House of Representatives was to have the power to adjourn itself, but for no longer than two days at a time. The Senate was to have the same power.

The Massachusetts House of Representatives was designed to function as the "popular," or "democratic," chamber of the legislature. It was expected to represent the interests of the many (the most numerous socioeconomis element) within society -- the common people who owned no private property of any great consequence, i.e., the small landholders and the skilled craftsmen.

        The Massachussets Senate. The Senate, the upper and smaller chamber of the General Court, was to consist of forty Senators elected annually by direct popular vote from thirteen senatorial election districts. The Commonwealth of Massachusetts was to be divided into thirteen senatorial districts and, in each district, the voters residing there were to choose a number of Senators based on the amount of state taxes paid by the residents of the district. Thus, the Senate was to be apportioned on the basis of taxable wealth, rather than on the basis of population. The principle governing representation in the Senate was to be representation according to taxable wealth.

Like the upper house of the New York Legislature, the upper chamber of the Massachusetts General Court was founded on conservative principles. With representation in the Massachusetts Senate apportioned on the basis of taxable wealth and with a high property qualification for holding a seat in that body, the Senate was to have a special relation to wealth and property and was to function as the "aristocratic" chamber of the General Court. It was expected to represent primarily the interests of the wealthy and propertied minority in Massachusetts society -- persons of economic substance from the upper social classes. The Senate was intended to serve as a brake on straight majority rule -- a brake on unchecked rule by the the "popular," or "democratic," interest represented in the House of Representatives. The wealthy and propertied minority represented in the Senate was to be enabled to check and counterbalance the economically less-well-off majority represented in the House of Representatives.

Apportioning the Massachusetts Senate on the basis of taxable wealth and the conservative assumptions underlying this arrangement were to have an influence on the shaping of the provision for an upper house of the national legislature contained in the Randolph Resolutions, or Virginia Plan -- the set of proposals for a strong and effective central government for the U.S.A. as a whole which were written by James Madison and presented by Virginia Governor Edmund Randolph to the 1787 Federal Constitutional Convention.

        The Governor of Massachusetts -- His Position and Power. Under the 1780 Massachusetts Constitution, the Governor was made stronger than were the governors in those states which had adopted state constitutions earlier than had Massachusetts and New York. The Constitution of the Commonwealth of Massachusetts declared the Governor to be the "supreme magistrate" of the Commonwealth -- i.e., the chief executive of the state.

The Governor was to elected by direct popular vote, in a statewide election. While the Governor was to be elected to serve a term of one year, he was to be indefinitely eligible for reelection. Thus, the Governor was provided with a political power base separate from and independent of that of the legislative branch of government.

The powers granted to the Governor included a strong veto over legislation passed by the General Court. A two-thirds vote in each chamber of the two chambers of the General Court was required for the legislature to enact a law over the Governor's objection and negative, i.e., override a gubernatorial veto.

The Constitution made the Governor Commander-in-Chief of all military forces of the Commonwealth and provided that he was to have "full power, by himself, or by any commander, or officer or officers, from time to time, to train, instruct, exercise, and govern the militia and [state] navy.

The Constitution gave the Governor the pardoning power -- the power to grant pardona to persons convicted of crimes against the Commonwealth, i.e., crimes defined by state law and committed inside the state's borders. The Governor was empowered, by and with the consent of the Council, to nominate and appoint all judicial officers, the Attorney-General, the Solicitor-General, and all sheriffs, coroners, and registers of probate. The Governor's appointment of these officers was subject to the approval or rejection of the majority of the Council, a collegial body operating within the executive branch of government.

The Governor, elected by the voters in a statewide election, was expected to represent the entire state, rather than a particular segment of the state's population. While each chamber of the General Court was to represent a particular interest or set of interests within Massachusetts society, the Governor was to represent the general interests, or general welfare, of the entire society. It was intended that the Governor be the one and only representative of the people of Massachusetts as a whole.

The foregoing expectation was derived the English idea of the "patriot King": Only the Monarch can represent the whole nation. The House of Lords represents one set of special interests -- those of the Nobility, the aristocratic minority within society. The House of Commons represents another set of special interests -- those of the "popular," or "democratic," majority within society.

As was the case with the Governor of New York, creation of a strong and independent chief executive in Massachusetts was, in large measure, a return to traditional Anglo-American governmental institutions of the seventeenth and eighteenth centuries. Provision for a strong and independent chief executive, combined with the very high property qualification for holding the office of Governor, was an important conservative feature of the Massachusetts Constitution of 1780.

        Qualifications for Voting in Elections and for Holding Public Office. To vote in elections to fill government offices, a man had to have a freehold estate worth three pounds in annual income, or any other estate worth sixty pounds in yearly income. To be qualified to hold a seat in the House of Representatives, one had to have freehold worth 100 pounds, or other estate worth 200 pounds. A Senator had to have a freehold worth 300 pounds, or other estate worth 600 pounds. The Governor had to have a freehold worth 1000 pounds.

        The Council. Under the Constitution, the Council was established as a collegial body to advise and assist the Governor in the performance of particular functions and duties. The Council was to consist of ten Councilors -- the Lieutenant-Governor and nine other persons chosen from the forty Senators. The nine Senators selected to be Councilors were to be elected by a joint ballot of the General Court meeting in joint session -- by a joint ballot of the Senators and Representatives assembled in one room. If the number of Senators willing to accept election to the Council was less than nine, the defficiency was to be made up from voters voting in the most recent election and willing to take seats on the Council.

The Governor was given "full power and authority, from time to time, at his discretion, to assemble and call together" the Councillors, and, with the Councillors, or at least five of them, "from time to time, hold and keep a Council, for ordering and directing the affairs of the Commonwealth, according to the laws of the land."

        The Massachusetts Judiciary. Under the 1777 Massachusetts Constitution, provision was made for a system of independent courts. Judges of the state courts were to be appointed by the Governor, with each of his judicial appointments subject to the consent, or approval, of a majority of the Councilors sitting with the Governor as the Council. All duly appointed, commissioned, and sworn judges were to hold their respective judicial offices during good behavior, being subject to removal by the Governor only upon a gubernatorial address to the two chambers of the state legislkature, such action on the part of the Governor requiring the consent of a majority of the Council.

To the extent that the foregoing arrangement ensured judicial independence, it was a conservative feature of the Massachusetts Constitution.

        Balanced Government and Mixed Government. Rejecting simple, unchecked democracy and domination of the governmental system by the legislature, the Massachusetts Constitution provided for a balance of power among the principal organs of state government. The governmental system of the Commonwealth of Massachusetts was constructed on two closely related conservative political principles and devices -- (1) balanced government and (2) mixed government.

        Balanced Government. As previoussly mentioned, balanced government is a constitutional arrangement under which the powers of government are distributed among several separate and largely independent governmental organs which represent constituencies with varying and competing interests and have very strong incentives to block, check, and restrain one another, thereby maintaining a balance of power in the governmental system and keeping any one interest or faction from dominating the entire system.

        Mixed Government. Mixed government is a system of government constitutionally structured to represent different socioeconomic classes and interests within society, such as monarchy, aristocracy, and commoners. In early American constitutional and political history, mixed government was a governmental system deliberately designed to provide for representation of both property and numbers of people -- representation according to wealth as well as representation according to population. The upper house of the legislature was intended to represent wealth and property. And the lower chamber was expected to represent population.

Mixed government is an example of limited government in which the limitation on power comes as much from a balance of interests and forces within the governmental system as from constitutional provisions specifically prohibiting the government's exercise of particular powers, e.g., the prohibitions contained in constitutional provisions guaranteeing and protecting individual rights and liberties.

        John Adams and the Concepts of Balanced Government and Mixed Government. John Adams was instrumental in getting the Massachusetts Constitutional Convention to provide for a state government founded on a combination of the principles of balanced government and mixed government. The idea was not original with Adams. In addition to Adams, political philosophers who, in the Modern Era, have contributed significantly to development of the concepts of balanced government and mixed government include James Harrington, in The Commonwealth of Oceana (1656), and Baron Montesquieu, in The Spirit of the Law (1748). Montesquieu's version of the relevant political theory is widely known as the theory of "separation of powers" and "checks and balances."

7. Significance of the New York and Massachusetts Constitutions:

The significance of the New York and Massachusetts Constitutions lies in their influence on (1) the other states when, in later years, the issue of state constitutional amendment and revision was given consideration and (2) the Framers of the Constitution of the United States. As regards their influence on the Framers, the two state constitutions served as models for consideration by the delegates to the Federal Constitutional Convention of 1787. The New York and Massachusetts Constitutions had a decisive influence on the work of the American Founding Fathers, on the Convention delegates' draft of the United States Constitution.

8. The Maryland Constitution of 1776 -- An Earlier Victory for Conservatism:

An important victory for the conservatives was won in Maryland in November, 1775, when that state's first constitution was adopted.

        The Maryland General Assembly --Senate and House of Delegates. The most significant feature of the Maryland Constitution was the careful differentiation between the method of choice of members of the upper house of the state legislature and the mode of selection of members of the lower house. Members of the Maryland Senate, the upper chamber of Maryland's General Assembly, were to be chosen for long terms, and by an indirect method of election. While the lower chamber, the House of Delegates, was to be chosen by direct popular election for short terms (elected annually by freemen having thirty pounds or fifty acres of land), members of the Maryland Senate were to be elected by an electoral college for five-year terms.

        The Electoral College and Election of the Senate. The electoral college that would choose the Maryland Senate was to be elected by the voters. In September, 1781, and every fifth year thereafter, the voters were to name two persons for each county, and one for each of the two cities (Annapolis and Baltimore), to be electors of the Senate. Three weeks later, the Electoral College was to meet and select from its own ranks or from the people at large fifteen Senators, nine from the western shore of Maryland and six from the eastern shore. To be eligible for election to the Senate, a man had to have resided in Maryland for three years and had to own property worth at least 1,000 pounds.

        Indirect Election of Senators -- The Most Conservative Feature. The whole arrangement for choosing members of the Maryland Senate was the most conservative feature of the 1776 Maryland Constitution. This arrangement was the antithesis of the system which the Pennsylvania radicals were adopting at the same time. Because of the arrangement adopted by Maryland, that state was well protected against the chief danger that arose in most of the states after 1776 -- the rash of unwise and destructive legislation demanded by viciferous, ill-educated voters.

        The Influence of the Maryland Constitution on the 1787 Federal Constitutional Convention. In 1787, leading delegates to the Federal Constitutional Convention in Philadelphia were favorably impressed by Maryland's indirect method of electing its upper legislative chamber. James Madison, in writing the Virginia Plan, which called for an indirectly elected upper house of the national legislature, was strongly in fluenced by the arrangement in Maryland. In Federalist Paper Number 63 (1787), Alexander Hamilton singled out for praise Maryland's indirect election of the upper house of its General Assembly.

        High Property Qualifications for Holding Public Office -- Another Conservative Feature. Another conservative feature of the Maryland Constitution lay in the high property qualifications for holding government office. Each member of the House of Delegates had to have property worth at least 500 pounds. Each Senator had to own property worth at least 1,000 pounds. The Governor had to have real and personal property of not less than 5,000 pounds in value, and a portion of this property had to be in a freehold estate worth at least 1.000 pounds.

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