weaker until at last many political leaders reached the conclusion that a new, more efficient and more powerful government was needed. It became clear, however, that if a workable constitutional system responsive to the needs of the American people were to be established, the impetus would have to come from outside the Congress.10
CONSTITUTIONAL REFORM IN THE STATES
In the meantime, the colonies had already transformed themselves into thirteen constitutional republics, each claiming independence, sovereignty, and statehood. They had progressed to this stage of political development over a two-year period beginning with the creation of the Committees of Correspondence in 1772. These bodies were subsequently replaced by revolutionary or provincial legislatures in each colony, such as the Provincial Congress in Massachusetts and the Provincial Conventions in Maryland and the Carolinas. Many members of these transitional legislative bodies had served in the colonial assemblies, thereby providing continuity of leadership, political experience, and on occasion legality with the old regime. Upon taking charge, these provincial legislatures elected delegates to the Continental Congress and assumed the powers of government.
During the spring and summer of 1775, the interim governments in the various colonies, many of them built upon county committees, began to prepare for independence, statehood, and to write new constitutions. “When Americans thought of independence in 1775–1776,” notes one historian, “they usually thought of it in terms of their own commonwealth, of Massachusetts, New Jersey or Georgia, rather than in terms of the nation. The future form and character of the nation, even if one survived, were heavy and inchoate.”11 The bilateral movement toward a national declaration of independence and American nationhood, it may thus be seen, sprang from a grassroots effort at the state and local level, that is, from the bottom up, not from any grand design originating in the Continental Congress.
Between April and July 1776, some ninety “declarations of independence” were formulated by townships in Massachusetts and counties in New York, Maryland, Virginia, and South Carolina.12 On April 13, 1776, North Carolina became the first State to instruct its delegates to join other delegates in the Continental Congress in declaring independence. Rhode Island, Virginia, Connecticut, New Hampshire, Delaware, New Jersey, Pennsylvania, and Maryland followed in rapid succession. While only a small portion of the people participated in the formation and ratification of these various State and local declarations, the record indicates that they enjoyed widespread public support, notwithstanding pockets of Loyalist opposition in some areas. This is no less true of the Declaration of Independence that was ultimately adopted by the Continental Congress and readily approved by the State legislatures.
Moreover, few citizens played a direct role in the creation of the first State constitutions. Four States wrote new constitutions even before the Declaration of Independence came into existence. The first, adopted by New Hampshire in January 1776, and the second, approved by South Carolina that February, were hastily written, virtually in the heat of battle. They were viewed as temporary expedients and both were soon replaced, but the new constitutions of New Jersey and Virginia, adopted in June, were intended as permanent instruments of government. Each in fact lasted more than half a century. Four more States ratified new constitutions in the fall of 1776: Delaware and Pennsylvania in September, Maryland in November, and North Carolina in December. Georgia and New York finally agreed on their new constitutions early in 1777. Three States—Massachusetts, Rhode Island, and Connecticut—elected to retain their colonial charters as fundamental law by stripping them of their monarchical provisions and reinterpreting them as republican constitutions.13
Significantly, these first State constitutions, like all the early State declarations of independence, were written by legislative assemblies. The decision in Massachusetts, Rhode Island, and Connecticut to keep the old charters was also made by legislative fiat. In no State was the new constitution drafted by a specially elected constitutional convention, nor did any of the States submit their new constitutions to the people for ratification. Three of the ten States that adopted a new constitution (New Jersey, Virginia, and South Carolina) did not even call a special election to draft the document, leaving the matter entirely to the discretion of their incumbent legislators. Thus it may be seen that, in spite of the American revolutionary doctrine of popular sovereignty embodied in the Declaration of Independence proclaiming the right of the people to self-government, the American people did not participate directly in the formation and ratification of either the Articles of Confederation or the first State constitutions. Indeed, they did not even have a voice in the writing or adoption of the Declaration of Independence that heralded their new coming. Having created numerous republics—that is, governments modeled and directed by their chosen representatives—they had yet to establish democratic republics based on “the consent of the governed”—republics in which the people exercised both political and legal sovereignty through fundamental laws that they had helped directly to create.
In spite of these apparent inconsistencies, the American Revolution and the various political regimes that sprang from it were all part of an evolving democratic movement. “The Articles of Confederation,” as Merrill Jensen has observed, “were the constitutional expression of this movement, and the embodiment in governmental form of the Declaration of Independence.”14 That our first efforts in 1776 to establish constitutional government failed to include popular participation in constitution making should not obscure the fact that significant progress had already been made toward the attainment of self-government and the principle of majority rule in the lawmaking process.
Even before the States completed ratification of the Articles and joined the Union, there was growing dissatisfaction with the first constitutions in most States. Much of this discontent may be attributed to defects discovered in the constitutions after they went into effect, caused mostly by inexperience in the art of constitution making and a general lack of familiarity with new constitutional concepts that had not yet been tested, especially the idea of separating the powers of government among three branches. Many of these early attempts at self-government, for example, called for a pure separation of powers and failed, in one way or another, to establish effective, limited government because they lacked a check-and-balance system and allowed the legislatures to usurp the powers of the other branches. What they invariably produced was legislative supremacy rather than constitutional supremacy. In Massachusetts and New Hampshire, however, there was an additional concern almost from the outset: a claim that self-government had been subverted because the people had not played a direct role in designing their constitutional systems. Not content with their new constitutions, disgruntled voters in these states conceived the idea that a constitution should be drafted by a special, independent constitutional convention rather than a legislative assembly and that any fundamental law proposed by this convention should be submitted to the people for ratification. A number of early attempts to democratize the process regarding both the drafting and the ratification of the Constitution met with resistance. One of the first proposals for a special convention to write a new constitution was made by the town of Concord, Massachusetts, on October 21, 1776, but State leaders were opposed to the idea. Even earlier, the town of Norton had unsuccessfully urged the State to consider the special convention as an alternative to legislative action. Berkshire County, in western Massachusetts, became the first local government to call for the popular ratification of a new constitution. Led by “the fighting parson” (the Rev. Benjamin Balch, who later fired the first shot at the Battle of Bennington), Berkshire citizens held a mass meeting in Pittsfield and sent a memorial to the State legislature demanding that new constitutions be submitted to the people. Offering a rationale that would soon be repeated in most of the other States, they contended that the people were the true fount of all power, that a revolutionary legislature had no right to impose a constitution upon them, and that the only valid constitution was one based on the consent of the majority.15
Before the Massachusetts authorities could make a final determination on how to proceed toward devising and establishing a new constitution, the New Hampshire legislature stepped forward in the spring of 1778 to summon a constitutional convention of its own. The convention met in Concord, New Hampshire, in June to draft a new instrument of government that would replace the State’s first attempt at constitution making, but the second document proved no more satisfactory than the first and the townships promptly rejected it. This assembly