The American Revolution: A History (8 page)
By 1776 their picture of the immense struggle they were involved in was complete. And they could respond enthusiastically, as lovers of humanity and haters of tyranny, to the passionate appeal of Thomas Paine’s
Common Sense
to stand forth for liberty:
Every spot of the old world is overrun with oppression. Freedom hath been hunted round the globe. Asia and Africa have long expelled her. Europe regards her like a stranger, and England hath given her warning to depart. O! receive the fugitive, and prepare in time an asylum for mankind.
IV
Constitution-Making and War
From the time royal authority had begun to disintegrate in 1774, Americans began thinking about creating new governments. They knew, as John Jay of New York declared, that they were “the first people whom heaven has favoured with an opportunity of deliberating upon and choosing forms of government under which they should live.” And they aimed to make the most of this opportunity. During the summer of 1775, Samuel Adams and John Adams of Massachusetts, together with the Virginia delegation to the Continental Congress led by Richard Henry Lee, worked out a program for independence. They made plans to negotiate foreign alliances, to create a confederation or union for common purposes, and, most important, to establish new state governments.
THE STATE CONSTITUTIONS
The climax of their efforts came with the congressional resolutions of May 1776 advising the colonies to adopt new governments “under the authority of the people” and declaring “that the exercise of every kind of authority under the . . . Crown should be totally suppressed.” Even before the Declaration of Independence the Congress had created a committee to form a confederation, and some of the states—New Hampshire, South Carolina, and Virginia—had begun working on new constitutions. With the May resolves and the Declaration of Independence, the other states also began to form new governments. By the end of 1776, New Jersey, Delaware, Pennsylvania, Maryland, and North Carolina had adopted new constitutions. Because they were corporate chartered colonies, Rhode Island and Connecticut were already republics in fact, and thus they simply confined themselves to eliminating all mention of royal authority in their charters. War conditions forced Georgia and New York to delay their constitution-making until 1777. Massachusetts had recovered its old charter, which the British had abolished in 1774, and was busy preparing to write a more permanent constitution.
In 1776–77, Americans concentrated much of their attention and energy on establishing these new state constitutions. The states, not the central government or Congress, were to test the Revolutionary hopes. In fact, forming new state governments, as Jefferson said in the spring of 1776, was “the whole object of the present controversy.” For the aim of the Revolution had become not simply independence from British tyranny, but also the prevention of future tyrannies.
It was inevitable that Americans would draw up written documents. By the word
constitution
most eighteenth-century Englishmen meant not a written document, but the existing arrangement of government—that is, laws, customs, and institutions, together with the principles they embodied. Americans, however, had come to view a constitution in a different way. Ever since the seventeenth century they had repeatedly used their written colonial charters as defensive barriers against royal authority. During the imperial debate with Britain they had been compelled to recognize that laws made by Parliament were not necessarily constitutional or in accord with fundamental principles of rightness and justice. If the constitutional principles were to be protected from a powerful sovereign legislature, then somehow they had to be lifted out of the machinery of day-to-day government and set above it. The Americans’ new state constitutions would therefore have to be fixed plans—single written documents, as the English constitution had never been—outlining the powers of government and specifying the rights of citizens.
As they wrote their new state constitutions, the Americans set about to institutionalize all that they had learned from their colonial experience and the recent struggle with England. Although they knew they would establish republics, they did not know precisely what forms the new governments should take. Their central aim was to prevent power, which they identified with the rulers or governors, from encroaching upon liberty, which they identified with the people or their representatives in the legislatures. Only this deep fear of gubernatorial or executive power can explain the radical changes Americans made in the authority of their now elected governors.
In their desire to root out tyranny once and for all, the members of the state conventions who drafted the new constitutions stripped the new elected governors of much of the power that the royal governors had exercised. No longer would governors have the authority to create electoral districts, control the meeting of the assemblies, veto legislation, grant lands, establish courts of law, issue charters of incorporation to towns, or, in some states, even pardon crimes. The Pennsylvania constitution, which was the most radical constitution of all the states, eliminated the governor outright. The constitution-makers surrounded all the new state governors with controlling councils whose members were elected by the assemblies. The weakened governors were to be elected annually (generally by the assemblies), limited in the times they could be reelected, and subject to impeachment.
However radical these changes in executive authority may have been, many Americans believed that they did not get to the heart of the matter and destroy the most insidious and dangerous source of despotism—the executive power of appointment to office. Since in a traditional monarchical society the distribution of offices, honors, and favors affected the social order, Americans were determined that their governors would never again have the capacity to dominate public life. The constitution-makers took exclusive control over appointments to executive and judicial offices from the traditional hands of the governors and gave it in large part to the legislatures. This change was justified by the principle of separation of powers, a doctrine Montesquieu had made famous in the mid eighteenth century. The idea behind maintaining the executive, legislative, and judicial parts of the government separate and distinct was not to protect each power from the others, but to keep the judiciary and especially the legislature free from executive manipulation—the very kind of manipulation that, Americans believed, had corrupted the English Parliament. Hence the new constitutions absolutely barred all executive officeholders and those receiving profits from the government from sitting in the legislatures. As a consequence, parliamentary cabinet government of the kind that existed in England was forever prohibited in America, and constitutional development moved off in a direction entirely independent of Great Britain—a direction that the American governments still follow.
Giving the powers that had been taken from the governors to the popular legislatures marked a radical shift in the responsibility of government. In English history the “government” had been identified exclusively with the crown or the executive. The representative body of Parliament had generally been confined to voting taxes, passing corrective legislation modifying the common law, and protecting the subjects’ rights. But the new American state legislatures, in particular the popular lower houses of the assemblies, were no longer to be merely adjuncts of governmental power or checks on it. They were now given powers or prerogatives that formerly had belonged solely to the crown or chief magistrates, including making foreign alliances and granting pardons. This transferal of nearly all political authority to the people’s representatives in the popular branch of the legislatures led some Americans, like Richard Henry Lee, to note that their new governments were “very much of a democratic kind,” although “a Governor and a second branch of legislation are admitted.” In 1776 many still thought of democracy as a technical term of political science that referred to rule by the people solely in the lower houses of the legislatures; the presence of aristocratic senates and monarchlike governors made the state constitutions not simple democracies but mixed governments like that of England with its king, House of Lords, and House of Commons—the last being the only representative and democratic part of the English constitution.
To ensure that the state legislatures fully embodied the people’s will, the ideas and experience behind the Americans’ view of representation were now drawn out and implemented. The Revolutionary state constitutions put a new emphasis on actual representation and the explicitness of consent. They did so by creating equal electoral districts, requiring annual elections, enlarging the suffrage, imposing residential requirements for both the electors and the elected, and granting constituents the right to instruct their representatives. The former attempts by the royal governors to resist extending representation to newly settled areas were now dramatically reversed. Towns and counties, particularly in the backcountry, were granted either new or additional representation in the state legislatures. Thus, Americans belatedly recognized the legitimacy of the western uprisings of the 1760s and ’70s. Five states even stated that population ought to be the basis of representation, and wrote into their constitutions specific plans for periodic adjustments of their representation, so that, as the New York constitution of 1777 stated, it “shall for ever remain proportionate and adequate.”
The confidence of the Revolutionaries in 1776 in their popular representative legislatures was remarkable. Except for disgruntled Tories and loyalists, few Americans expected these state legislatures to become tyrannical—in the Whig theory of politics it did not seem possible for the people to tyrannize over themselves. The idea, said John Adams in 1775, was illogical: “a democratic despotism is a contradiction in terms.” Of course, the people were apt to be licentious or giddy; hence the republics needed not only governors but also upper houses in the legislature to counterbalance the popular lower houses of representatives. All the states except Pennsylvania, Georgia, and the new state of Vermont therefore provided for upper houses or senates, the designation taken from Roman history. The senators in these bicameral legislatures were to be republican versions of the English House of Lords—not representing any constituency in the society, but simply being the wisest and best, the natural aristocracy, in each state, who would revise and correct the well-intentioned but often careless measures of the people represented in the lower houses. Although the people in most of the states elected the senators, in 1776 the people were still thought to be represented exclusively in the lower houses of representatives just as the people of England were represented exclusively in their House of Commons. The process of election, in other words, was not yet considered to be the criterion of representation.
THE ARTICLES OF CONFEDERATION
At the same time that the Revolutionaries were creating their state constitutions, they were drafting a central government. Yet in marked contrast to the rich and exciting public explorations of political theory accompanying the formation of the state constitutions, there was little discussion of the plans for a central government. Whatever feelings of American nationalism existed in 1776, they paled before people’s loyalties to their separate states. While the United States was new, most of the states had existed for a century or more and had developed symbols and traditions that were emotionally binding. When people in 1776 talked about their “country” or even their “nation,” they usually meant Virginia or Massachusetts or Pennsylvania. Although the Declaration of Independence was drawn up by the Continental Congress, it was actually a declaration by “thirteen united States of America,” who proclaimed that as “Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which independent States may of right do.” Despite all the talk of union, few Americans in 1776 could conceive of creating a single full-fledged continental republic.
Still, the Congress needed some legal basis for its authority. Like the various provincial conventions, it had been created in 1774 simply out of necessity, and it was exercising an extraordinary degree of political, military, and economic power over Americans. The Congress had established and maintained an army, issued a continental currency, erected a military code of law, defined crimes against the union, and negotiated abroad. With independence it was obvious to many leaders that a more permanent and legitimate union of the states was necessary. Although a draft of a confederation was ready for consideration by the Congress as early as mid-July 1776, not until November 1777, after heated controversy, did Congress present a document of union to the states for each of them to approve or reject. It took nearly four years, until March 1781, for all the states to accept this document and thereby legally establish the Articles of Confederation.
The Articles created a confederacy called the “United States of America” that was essentially a continuation of the Second Continental Congress. Congress was granted the authority earlier exercised by the British crown—to control diplomatic relations, requisition soldiers and money from the states, coin and borrow money, regulate Indian affairs, and settle disputes between the states. Although a simple majority of seven states was needed to settle minor matters, a larger majority, nine states, was required to resolve important issues, including engaging in war, making treaties, and coining and borrowing money. There was no real executive but only a series of congressional committees with a fluctuating membership.
The Union was stronger than many people expected. The states were forbidden from conducting foreign affairs, making treaties, and declaring war. The citizens of each state were entitled to the privileges and immunities of the citizens of all states. All travel restrictions and discriminatory trade barriers between the states were eliminated. The judicial proceedings of each state were honored by all the states. These provisions, together with the substantial powers granted to the Congress, made the United States of America as strong as any similar republican confederation in history.
Nevertheless, the Americans’ fears of distant central authority, intensified by a century of experience in the British Empire, left no doubt that this Confederation was something very different from a real national government. Under the Articles the crucial powers of commercial regulation and taxation—indeed all final lawmaking authority—remained with the states. Congressional resolutions continued to be, as they had been under the Continental Congress, only recommendations that the states were supposed to enforce. And should there be any doubts of the decentralized nature of the Confederation, Article 2 stated bluntly that “each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”