but by … a frequent recurrence to fundamental principles.”1 Altogether thirty-eight new state constitutions were ratified from 1800 to the outbreak of the Civil War. Eighteen of these new constitutions were drafted by territories seeking statehood, but the expansion of the Union alone cannot explain the extraordinary burst of constitutional creativity. Eighteen of the new constitutions replaced existing state constitutions, and two replaced the colonial charters under which Connecticut and Rhode Island had continued to govern following independence. Indeed, of the twenty-four states in the Union by 1830, fifteen had revised their constitutions by 1860, two of them twice; and during a single decade (1844–1853) more than half the American states held constitutional conventions. New York and Virginia were among those states that rewrote their basic charters during that decade, adopting new constitutions in 1846 and 1851 respectively.
What prompted Massachusetts, New York, and Virginia (among others) to reassess their constitutional foundations during the early nineteenth century? The experience of government under the states’ existing constitutions played a vital role. By the 1820s the constitutions of all three states had been in operation for more than forty years, and time had revealed defects that demanded correction.2 This was hardly surprising: the initial charters in those states had been drafted in the midst of a war for independence by people who lacked experience in constitutional design and self-government. With the passage of time, later generations felt themselves positioned to improve on the work of their predecessors. After all, as a New York delegate put it, “we find constitutions of the states more perfect, the later the period in which they have been made” (p. 142).
As this suggests, the example of other states was likewise important. State constitutional reformers drew both inspiration and guidance from the innovations pioneered in states that had recently written or revised their constitutions. In fact, the models that states emulated were found more frequently in the constitutions of other states than in the Federal Constitution. Delegates regularly referred to the experience of other states in the convention debates. For instance, in proposing a system of gubernatorial appointment with senatorial confirmation, the system found in the Federal Constitution, New York delegate Martin Van Buren noted that the state “constitutions which had been recently formed, and might therefore be in some degree regarded as the most recent expression of the sense of a portion of the American people, were in unison with the plan” (p. 161).
Population shifts within the states also fueled calls for constitutional reform. Many states made use of existing units of government, such as counties or towns, in apportioning representation in one or both houses of the state legislature. For example, the Massachusetts Constitution of 1780 guaranteed representation for each town, and the Virginia Constitution of 1776 provided for the election of two members of the House of Delegates from each county. The problem in Virginia, as in several other states, was that county boundaries had been drawn prior to independence or immediately after it was declared, when state populations were still concentrated along the Atlantic seaboard. When population shifted as a result of intrastate migration, political power did not, and this prompted demands for a more equitable system of representation.
In Virginia, the slaveholding eastern counties, which were dominated by large landowners, exercised disproportionate influence, continuing to control the government even after they no longer included a majority of the population. Dissatisfaction with this situation was the principal factor that led to the 1829–1830 convention. Although the topic of representation dominated debate in the convention and called forth considerable eloquence from both sides, it is doubtful that the debate changed many votes. The eastern delegates feared that western dominance of the government would mean heavy taxation on slaves. As one delegate put it, “Our interests are not identical, and the difference between us arises from property alone. We therefore contend that property ought to be considered, in fixing the basis of representation” (p. 284). Whatever the validity of that view, the eastern delegates offered only limited concessions, and it was not until 1851, when Virginia adopted its third constitution, that representation in the lower house was closely tied to population.
Significant changes had also occurred in political thought and political practice since the founding era, and reformers insisted that the constitutions in their states should be revised to reflect those shifts. In doing so, they were endorsing a distinctive understanding of constitutionalism. In The Federalist James Madison cautioned that constitutional change should be infrequent lest popular reverence for the fundamental law be undermined. Madison’s advice has been heeded at the national level: the Federal Constitution is more than two centuries old, and it has been amended only twenty-seven times. But most states have rejected Madison’s concern. Instead they have followed the advice of Thomas Jefferson, who argued that “laws and institutions must go hand in hand with the progress of the human mind” and that “as manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”3 In endorsing Jefferson’s recommendation of more frequent constitutional updating, the states have opted for a more matter-of-fact attitude toward their constitutions, treating them as instruments for advancing political goals and susceptible to modification and replacement as circumstances require, rather than as venerated documents.
A final, perhaps less obvious factor encouraging state constitutional innovation during the early nineteenth century was the division of power between nation and state under the United States Constitution. By assigning certain policy concerns to the states, the Constitution ensured that when conflicts over these matters arose, they would be resolved by state law and often by state constitutional prescription. A prime example is the relations between church and state. The First Amendment prohibits Congress from “mak[ing] laws respecting an establishment of religion,” a provision that not only forbade the establishment of a national church but also, in deference to federal diversity, prevented Congress from interfering with the religious establishments that existed in the states. As criticism of these establishments mounted in the decades following independence, state constitutional conventions became the venue for discussion about their reform or elimination.
Virginia had already eliminated all vestiges of religious establishment in the state with the adoption of the famous “Bill Establishing Religious Freedom,” so the issue of church and state did not arise at its 1829–1830 convention. New York too had no formal establishment, but delegates to the 1821 convention were troubled by the test oath for public office and by Chancellor Kent’s opinion in People v. Ruggles (1811), in which he declared that Christianity was “part and parcel of the laws of the land.” To eliminate these remnants of establishment, the New York delegates inserted language in the Bill of Rights that eliminated the test oath, repudiated Ruggles, and reaffirmed the state’s commitment to religious liberty.
In Massachusetts the issue of church and state proved particularly contentious. The 1780 constitution had established a general assessment for religion, obliging towns and villages to “make suitable provision at their own expense” for “the support and maintenance of public Protestant teachers of piety, religion, and morality.”4 The debates in the Massachusetts Convention of 1820–1821 reveal a broad consensus in favor of, in the words of one delegate, “the right of every individual to worship God in a manner agreeable to the dictates of his own conscience” (p. 34). Most delegates also agreed that republican government depended on the moral character of the citizenry and that religion played a vital role in instilling virtue. But they disagreed about “the propriety of mixing civil and religious institutions” (p. 38) and about whether eliminating tax support for churches would undermine religion and jeopardize republican government. Ultimately the Massachusetts delegates sought to retain a modified establishment that extended benefits to non-Protestant teachers, but voters refused to ratify the compromise they crafted, and in 1833 by amendment they altogether eliminated public support for religion.
Another key issue that the Federal Constitution left to the states was voting qualifications. Article I, section 2, of the Constitution authorizes any person who is qualified to vote for the lower house of a state’s legislature to vote for members of the House of Representatives. In so doing, it implicitly recognizes the authority of the states to establish qualifications for those voting in state elections. Initially, the original thirteen states restricted the franchise to either freeholders or taxpayers. Some states admitted to the Union