State constitution making began during the Revolution. By 1787, when delegates from twelve of the original thirteen states (Rhode Island never sent any delegates) met in Philadelphia to write the national constitution, eleven of the first thirteen states had written constitutions. What would become the fourteenth state, Vermont, had also produced a written constitution. Only Rhode Island and Connecticut failed to adopt a new constitution during or immediately after the Revolution. A number of states wrote more than one constitution in this period, refining and revising their constitutional structure. All of the constitutions dealt with the important aspects of government, such as the powers of the legislative and executive branches, the allocation of representatives, and who could vote.
Liberty, of course, had been at the center of the American Revolution. For example, the New York legislature asserted in its ‘‘Address of the Convention of the Representatives of the State of New York to Their Constituents,’’ in 1776, that ‘‘[w]e do not fight for a few acres of land,’’ but rather, New Yorkers and all Americans fought ‘‘for freedom—for the freedom and happiness of millions yet unborn.’’ Similarly, Jefferson would assert in the Declaration of Independence that Americans were fighting to secure the ‘‘unalienable Rights’’ of ‘‘Life, Liberty, and the Pursuit of Happiness.’’ Surprisingly, however, only five of the original states to write constitutions—Virginia, Pennsylvania, Maryland, North Carolina, and Massachusetts—actually included a bill of rights or declaration of rights in their fundamental law. On September 11, 1776, Delaware adopted a ‘‘Declaration of Rights,’’ but this was not formally part of the state’s constitution, which was adopted ten days later, on September 21. The last article of the Delaware constitution of 1776 made a reference to ‘‘the declaration of rights and fundamental rules for this State, agreed to by this convention,’’ but the constitution did not actually contain the declaration, and it was only sometimes printed and distributed with the constitution. What would become the fourteenth state, Vermont, also had a bill of rights in its first constitution. Some of the other states did, however, offer some formal assertion of fundamental liberties. Connecticut, for example, which did not adopt a constitution (but instead simply amended its colonial charter to remove references to England and the king), passed a declaration of rights in 1784, just after the Revolution. A number of states wrote more than one constitution in this period, in the process reconsidering and refining the notion of fundamental rights.
New Hampshire, for example, did not have a declaration of rights in its constitution of 1776, but did have one in its second constitution, adopted in 1784. Georgia, on the other hand, adopted three constitutions (1777, 1789, and 1798) in this period, none of which had a bill of rights, although the constitutions did protect some civil liberties.
Most of the new state constitutions written during or after the Revolution reflected historic claims of the ‘‘rights’’ of Englishmen. The new states added to these rights new protections of liberty based on the events leading up the Revolution and the circumstances of the new American nation.
Almost every American state constitution had some provisions that dealt with religion. These provisions, either in the main body of the document or in a separate declaration of rights, are perhaps the most important differences between the rights of Englishmen and Americans. Most states provided for some form of ‘‘free exercise.’’ New Jersey’s clause in its 1776 Constitution was typical in its detail and thrust:
That no person shall ever, within this Colony, be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor, under any pretence whatever, be compelled to attend any place of worship, contrary to his own faith and judgment; nor shall any person, within this Colony, ever be obliged to pay tithes, taxes or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately or voluntarily engaged himself to perform.
However, the new states, including New Jersey, were ambivalent about how much political freedom members of dissenting churches should have.The firstAmerican state constitutions rejected the strict establishment of England, but at the same time the constitutions did not create and protect the religious freedomthe way the U.S. Constitution and Bill of Rights would.
In England at this time an established church had special privileges and the support of the national government. The king was also the head of the church, and bishops and archbishops—princes of the Church— sat in the House of Lords. There was also a religious test for officeholding, which barred Jews, Deists, and Roman Catholics from holding office. At best England could be described as having a regime of grudging toleration for people who were not members of the Church of England. The U.S. Constitution of 1787 prohibited religious tests for officeholding, and by using the term ‘‘oath or affirmation,’’ rather ‘‘swear an oath,’’ opened officeholding to people of all faiths or no faith at all. The First Amendment, added to the Constitution in 1791, prohibited any establishment of religion at the national level and also guaranteed the free exercise of rights of all religions.
In this sense, the new state constitutions fell in between these two regimes, with some states being closer to the British model and some closer to what would become the American model under the Constitution and the Bill of Rights. Except for Virginia and New York, all of the first fourteen states had some form of religious test for officeholding, which was similar to what existed in England. These tests varied. Massachusetts specifically required that the governor ‘‘declare himself to be of the Christian religion,’’ and all persons holding offices in the legislative or executive branch were required to ‘‘declare that I believe the Christian religion, and have a firm persuasion of its truth.’’ Until 1792, Delaware required that all officeholders ‘‘profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost,’’ and that they ‘‘acknowledge’’ the ‘‘divine inspiration’’ of the Old and New Testaments. New Hampshire’s constitution of 1784 required that all officeholders ‘‘shall be of the Protestant religion’’—a provision that remained in place until 1877. New Jersey, North Carolina, South Carolina, and Georgia also required officeholders to be Protestants. South Carolina, which had begun as a colony with religious freedom for all people, provided in its 1778 Constitution that ‘‘[t]he Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.’’ Until 1826, Maryland required that all officeholders be Christians. In 1867, Maryland required that all officeholders have a ‘‘belief in the existence of God.’’ Until 1790, Pennsylvania required that officeholders believe in the divine inspiration of the Old and New Testament. In 1792, Delaware adopted such a provision. While requiring officeholders to be religious, some states did not want them to be too religious. Thus, Georgia, New York, North Carolina, and Tennessee all banned members of the clergy from holding public office.
Overall, the early state bills of rights show that at the time of the Revolution, the states had not fully clarified what they meant by religious freedom. For example, Section 2 of the Delaware Declaration of Rights of 1776 provided the following:
That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understandings; and that no man ought or of right can be compelled to attend any religious worship or maintain any ministry contrary to or against his own free will and consent, and that no authority can or ought to be vested in, or assumed by any power whatever that shall in any case interfere with, or in any manner controul the right of conscience in the free exercise of religious worship.
This was surely a powerful statement supporting free exercise and to some extent hostile to establishment. However, Section 3 of the same document declared ‘‘that all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state, unless, under colour of religion, any man disturb the peace, the happiness or safety of society.’’ On top of this, as noted above, the constitution adopted a few weeks later required that all officeholders take an oath stating, ‘‘I, . . . do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.’’ Someone living in Delaware in 1777 might legitimately wonder if Unitarians or Jews were in fact full citizens of the state and entitled to freedom of worship.
Conflicting clauses like those in the Delaware Constitution (or the Protestant establishment) helped lead the framers of the U.S. Constitution to ban all religious tests for officeholding, and in the Bill of Rights to emphatically protect the ‘‘free exercise’’ of religion while guaranteeing that the United States could never establish any religion.
Revolutionary-era Americans often referred to freedom of the press as the ‘‘palladium’’ of liberty. They understood a press that could criticize the government would be a ‘‘bulwark’’ (another one of their favorite terms) in preventing tyranny. Not surprisingly, most of the early state constitutions protected the press. Virginia’s constitution represented the sometimes overblown language of the period: ‘‘That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.’’ Pennsylvania’s language in its 1776 Constitution was more modern and more restrained: ‘‘That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.’’ Maryland’s Constitution of 1776 was more direct: ‘‘[T]he liberty of the press ought to be inviolably preserved.’’ Delaware’s 1776 Declaration of Rights used the exact same language as Maryland. Significantly, none of these documents contained the kind of absolute prohibition on regulating a free press found in the U.S. Bill of Rights that Congress ‘‘shall make no law . . . .’’ Equally important, neither of these bills of rights phrased the language of a ‘‘free press’’ in terms that we would understand as banning a suppression of the press. The Virginia Bill of Rights, for example, says that only ‘‘despotic governments’’ restrain the press. The implication of this is that Virginia would be acting despotically if it did so. But, presumably the state might choose to act despotically under some circumstances. Similarly the ‘‘ought’’ in the Pennsylvania and Maryland documents suggests that the state ‘‘could’’ restrain the press, but simply should not do so. In its second constitution, adopted in 1778, South Carolina moved closer to a more affirmative protection, declaring ‘‘[t]hat the liberty of the press be inviolably preserved.’’ Georgia’s 1777 Constitution provided the most emphatic protection of the press: ‘‘ [f]reedom of the press and trial by jury to remain inviolate forever.’’ Oddly, Pennsylvania was the only state to protect freedom of speech at this time, although Maryland provided for freedom of speech for members of the state legislature, providing that ‘‘that freedom of speech and debates, or proceedings in the Legislature, ought not to be impeached in any other court or judicature.’’ Only Pennsylvania, North Carolina, Massachusetts, and New Hampshire protected the right of assembly. A few states—New York and New Jersey, for example—did not protect freedom of the press, speech, or assembly.
One important theme in these state constitutions is the connection between liberty and the press. Without the press, the early constitution makers believed that their governments would be at risk. In an age when governments worry about a free press challenging the policies of an administration, the language of the Massachusetts Bill of Rights is particularly relevant. Written in the middle of the Revolution, the Massachusetts Bill asserted that ‘‘[t]he liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.’’ The founding generation, it seems, understood that a free press was vital to national security, because in the end, republican values and an informed citizenry was the key to a secure society.
Most of the new state constitutions had a clause protecting the rights of accused, providing for due process of law, and for preventing the adoption of arbitrary laws, such as writs of attainder or ex post facto laws. New York’s first constitution declared the following:
And this convention doth further ordain, determine, and declare, in the name and by the authority of the good people of this State, that trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate forever. And that no acts of attainder shall be passed by the legislature of this State for crimes, other than those committed before the termination of the present war; and that such acts shall not work a corruption of blood. And further, that the legislature of this State shall, at no time hereafter, institute any new court or courts, but such as shall proceed according to the course of the common law.
New Jersey emphatically declared ‘‘that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.’’ The framers in New Jersey were not yet certain if their jurisdiction was a ‘‘colony’’ or a state, but they understood that they wanted to be certain they would always have a trial by jury. New Jersey did not have any other protections for criminal justice or due process. South Carolina’s 1776 Constitution provided for jury trials in civil suits, if either party asked for one, but not in criminal cases.
Delaware, on the other hand, provided elaborate protections for jury trials and accused criminals. Much of the language from that document would appear, almost word for word, in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution. Delaware’s 1776 Declaration of Rights prohibited ‘‘retrospective law’’ (what the U.S. Constitution would call ex post facto laws); and required civil trials ‘‘speedily without delay, according to the law of the land,’’ with juries to determine the facts in all civil and criminal cases. The Delaware framers considered ‘‘that trial by jury of facts where they arise is one of the greatest securities of the lives, liberties and estates of the people.’’ In addition, Delware’s Constitution required a ‘‘speedy trial by an impartial jury’’ in all criminal cases, with the accused having a right to confront his accusers, subpoena witnesses, and ‘‘not be compelled to give evidence against himself.’’ The document prohibited ‘‘excessive bail,’’ ‘‘excessive fines,’’ and ‘‘cruel or unusual punishments.’’ The section on searches and seizures was particularly detailed: ‘‘That all warrants without oath to search suspected places, or to seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend all persons suspected, without naming or describing the place or any person in special, are illegal and ought not to be granted.’’
Virginia, Pennsylvania, and Maryland had similar protections of due process, often with the same language. Given the close proximity of these three states, it is not surprising that they borrowed and learned from each other in writing constitutions that protected civil liberties. Virginia’s jury provision mandated that juries have twelve members and that verdicts be unanimous. Massachusetts went further than most states in its emphatic language and in its guarantees, including the right to an attorney. Thus, in 1780 the Bay State’s constitution provided that:
No subject shall be held to answer for any crimes or no offence until the same if fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself; and every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.
In general, the newly independent states had a sharper sense of the need to be protected from arbitrary government than they did for protecting the rights of freedom of speech, press, or religion. Yet, with one exception, nowhere in the world were civil liberties more protected than under the new constitutions of the American states. That one exception had to do with the most fundamental civil liberty of all: the right to personal autonomy as a free person.
On the eve of the Revolution, slavery was legal in all of the thirteen colonies. In explaining to the world why they were revolting, the Americans asserted ‘‘that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.’’ Yet, the man who wrote these words, Thomas Jefferson, owned about 175 slaves at the time. Many of the other signers of the Declaration were slave owners as well. Not surprisingly, there was a great conflict in the new nation between the assertions of equality and the struggle for liberty and the fact that so many leaders of the Revolution were slave owners. Not a few Englishmen and many Americans read the Declaration and wondered, as did Samuel Johnson, ‘‘How is it that we hear the loudest yelps for liberty among the drivers of negroes?’’ This question bothered some early constitution makers. But only three of the new states confronted the issue of slavery in their first constitutions.
Virginians borrowed some of Jefferson’s language when writing their constitution. Thus, Section 1 of the Virginia Declaration of Rights began with the words, ‘‘That all men are by nature equally free and independent, and have certain inherent rights.’’ The section ended with more language that mirrored Jefferson’s Declaration, asserting that free people ‘‘cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.’’ Had Virginia only used this language, the state’s framers would have been attacking slavery directly. But, the Virginia framers were cautious and careful, and between these two clauses they inserted language designed to exclude slaves. Thus, the entire provision of Section 1 read:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
The phrase ‘‘when they enter into a state of society’’ was understood to limit the language of the document to free people. Slaves had not entered into ‘‘a state of society’’ but rather were property owned by people in society.
Four years later, Massachusetts began its Declaration of Rights with similar language, which did not have a proviso excluding those not ‘‘in a state of society.’’ Article I of the Massachusetts Constitution of 1780 declared:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
In 1781, Massachusetts courts would use this provision to declare slaves to be free, and by 1783 slavery would cease to exist in the state. In 1783, New Hampshire adopted a constitution which declared that ‘‘all men are born equal and independent,’’ with natural rights, ‘‘among which are enjoying and defending life and liberty.’’ This clause would be interpreted within the state to end slavery.
The remaining states did not end slavery by constitutional provision, and of course, in the southern states slavery would exist until the Civil War; the Emancipation Proclamation, and the Thirteenth Amendment ended slavery. In the North, slavery would end through gradual emancipation over a number of years. Civil liberties for blacks in the North would be slow to arrive. They would not arrive for most southern blacks until after 1865.
Despite the failure to extend civil liberty—and fundamental freedom—to all Americans, the first state constitutions were generally sensitive to individual rights, although not to the extent that the U.S. Bill of Rights would be. These first state constitutions, however, set the stage for the more expansive protection of civil liberties that James Madison would propose to Congress in 1789 and the states would ratify in 1791.
References and Further Reading