the 1780 Massachusetts Constitution. In Gordon Wood's words, "the Americans' inveterate suspicion and jealousy of political power, once concentrated almost exclusively on the Crown and its agents, was transferred to the various state legislatures."52 This transition in constitutional philosophy, design and structure was not purely a question of ideology. 53 In the eyes of the participants, there were immediate, practical consequences to the outcome of the debate over who should rule at home. Legislative supremacy proved to be extremely unpopular with the more traditional leaders in the states. They worked very hard to overcome the "omnipotence" of the state legislative branch-the "vortex" into which virtually all political authority was initially thrown, and later, dragged. These leaders finally succeeded in surrounding the legislative branch with various checks and balances. As indicated earlier, many of the early state constitutions were neither framed by a convention specially elected for that purpose nor submitted to the electors for ratification. When the 1776 New Jersey Constitution was challenged on this basis in an 1802 case (not reported until 1828), Justice Kirkpatrick observed: Whatever might be said upon theoretical principles, considering that the constitution was framed by a convention never delegated for the purpose, and therefore never vested with competent authority therefor; and considering also that it was not even by that convention intended or meant to be a perpetual law, but only to answer the pressing exigency of the times, as is manifest from its being made before the declaration of independence, as well as from many badges of colonial distinction which it still wears upon it; yet, notwithstanding these considerations, it has by general consent been received, and used ever since as the legitimate constitution of the state. Without looking, therefore, into the spuriousness of its origin, we must receive and treat it as such, until the people shall think proper to lay it aside, and to establish a better in its place.54 In the 1793 Virginia case Kamper v. Hawkins,55 a similar result had been reached. Judge Nelson stated that, with respect to Virginia's legislatively drafted and unratified Constitution of 1776, "The people have felt its operation and acquiesced."56 St. George Tucker concluded that the people had authorized the drafting of a constitution in 1776: "It would therefore have been an absurdity in the extreme, in the people of Virginia, to authorize the convention to absolve them from the bonds of one government, without the power to unite them under any other...."57 The Massachusetts Constitution of 1780 was the first to be drafted by a convention specially elected for that purpose and then ratified by the electors.58 Thus, the state constitutions of the founding decade reflected a wide range of substantive content, and were promulgated through a variety of procedures. These early state constitutional experiments represent a process that has continued for over two centuries and is going on in state constitutional law even today. -ENDNOTES 'This section draws extensively on Robert F. Williams, "Evolving State Legislative and Executive Power in the Founding Decade," Annals of the American Academy of Political Science 496 (March 1988): 43. See also Robert F. Williams, " Experience Must Be Our Only Guide:' The State Constitutional Experience of the Framers of the Federal Constitution," Hastings Constitutional Law Quarterly 15 (Spring 1988): 403. 2James Bryce, The American Commonwealth (rev. 2d. ed; New York: Macmillan 1891), vol. 1, pp. 413, 434. 3James Quayle Dealey, Growth of American State Constitutions (1915; reprint, New York: DaCapo Press, 1972), p. 11. Dealey also referred to state constitutions as a cinematoscope of the times. p. 2. 4The resolution was adopted May 10, 1776, and a preamble was added on May 15, 1776. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), p. 61. 5Ibid. "For summaries of this decade of state constitution making, see Jackson Turner Main, The Sovereign States, 1775-1783 (New York: Franklin Watts, 1973), pp. 143-95; Willi Paul Adams, The First American Constitutions, pp. 63-93; Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980); Gordon Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), pp. 125-255; Elisha P. Douglass, Rebels and Democrats: The Struggle for Equal Political Rights and Majority Rule During the American Revolution (Chapel Hill: University of North Carolina Press, 1955). 7Jackson Turner Main, "The American States in the Revolutionary Era," in Sovereign States in an Age of Uncertainty, eds. Ronald Hoffman and Peter J. Albert (Charlottesville: University of Virginia Press, 1981), p. 23. 8John Adams to Mercy Warren, July 28, 1807, quoted in Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (Amherst: University of Massachusetts Press, 1978), p. 14. Adams was a little more accurate when he said "What is the Constitution of the United States, but that of Massachusetts, New York and Maryland! There is not a feature of it which can not be found in one or the other." Quoted in Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little, Brown, 1966), p. 199. 9Carl Lotus Becker, The History of Political Parties in the Province of New York, 1760-1776 (Madison: University of Wisconsin Press, 1909), p. 22. 10 Robert E. Shalhope, "Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography," William and Mary Quarterly 3d ser. 29 (January 1972): 72. 11See, e.g., Mass. Const. of 1780, Declaration of Rights, section XXX: The legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. Quoted in William Clarence Webster, "Comparative Study of the State Constitution of the American Revolution," Annals of the American Academy of Political and Social Science 9 (January 1897): 389. For an in-depth discussion of the implications of this provision, see Peters, The Massachusetts Constitution of 1780, pp. 163-76. 12 Webster, "Comparative Study," 403. See also Edward S. Corwin, "The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention," American Historical Review 30 (April 1925): 514 (separation of powers in early state constitutions "was verbal merely"). 13 Wood, The Creation of the American Republic, p. 435; Lutz, Popular Consent and Popular Control, pp. 44-45. 14 Philip S. Foner, ed., The Complete Writings of Thomas Paine (New York: The Citadel Press, 1969), vol. 1, pp. 4-46. 15 Rosalind A. Branning, Pennsylvania Constitutional Development (Pittsburgh: University of Pittsburgh Press, 1960), p. 14. 16 Paine supported an even broader franchise. See Eric Foner, Tom Paine and Revolutionary America (New York: Oxford University Press, 1976), pp. 142-43. 17See generally Richard Alan Ryerson, "Republican Theory and Partisan Reality in Revolutionary Pennsylvania: Toward a New View of the Constitutionist Party," in Sovereign States in an Age of Uncertainty, eds. Hoffman and Albert, p. 95. Robert L. Brunhouse, The CounterRevolution in Pennsylvania 1776-1790 (Harrisburg: Pennsylvania Historical Commission, 1942), p. 17. 18 Robert Kelley, The Cultural Pattern in American Politics: The First Century (New York: Knopf, 1979), p. 79-80; Ryerson, "Republican Theory"; J. Paul Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary Democracy (Philadelphia: University of Pennsylvania Press, 1936), pp. 173-74; Brunhouse, The CounterRevolution. 19 George A. Peek, Jr., ed., The Political Writings of John Adams (Indianapolis: Bobbs-Merrill, 1954), pp. 83-92. 20 Edward Countryman, "Some Problems of Power in New York 1777-1782," in Sovereign States in an Age of Uncertainty, eds. Hoffman and Albert, pp. 158-59. 21Selsam, The Pennsylvania Constitution of 1776, p. 215. A North Carolina delegate to the Continental Congress wrote that "The Pennsylvania Constitution has made more tories than the whole treasury of Britain." Elisha Douglass, "Thomas Burke, Disillusioned Democrat," North Carolina Historical Review 26 (1950): 159 n.34. 22 Douglass, Rebels and Democrats, pp. 121, 129. See also p. 123 (delay helped conservatives). 23 Philip B. Kurland and Ralph Lerner, eds., The Founders' Constitution (Chicago: University of Chicago Press, 1987), vol. 1, pp. 56-58. See also M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), p. 141. 24 Alfred F. Young, The Democratic Republicans of New York: The Origins 1763-1797 (Chapel Hill: University of North Carolina Press, 1967), p. 18; Bernard Mason, The Road to Independence: The Revolutionary Movement in New York 1773-1777 (Lexington: University of Kentucky Press, 1966), pp. 219-20. 25Staughton Lynd, Class Conflict, Slavery and the United States Constitution (Indianapolis: Bobbs-Merrill, 1967) p. 38; Young, The Democratic Republicans, pp. 18-19. 26 Young, The Democratic Republicans, pp. 20-21. Bernard Mason concluded that the 1777 New York Constitution was a compromise, but weighted on the conservative side. Mason, The Road to Independence, p. 243. 27 See, for example, Oscar and Mary Handlin, Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge: Harvard University Press, 1966); Robert J. Taylor, Massachusetts, Colony to Commonwealth: Documents on the Formation of its Constitution, 1775-1780 (Chapel Hill: University of North Carolina Press, 1961). 28 This document is found in Handlin and Handlin, Popular Sources of Political Authority, p. 190. This constitution and its rejection is discussed in Stephen E. Patterson, Political Parties in Revolutionary Massachusetts (Madison: University of Wisconsin Press, 1973), pp. 171-96. 29 William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca: Cornell University Press, 1972), p. 21. 30 For a summary of the powers of the colonial executive, see Main, The Sovereign States, pp. 99-103. On the transitions in executive power under the first state constitutions, see Charles Thach, Jr., The Creation of the Presidency, 1775-1789 (Baltimore: Johns Hopkins University Press, 1969), p. 27. 31 Max Farrand, ed., The Records of the Federal Convention of 1787, ed. (New Haven: Yale University Press, 1966), vol. 2, p. 35. 32 Jesse Lemisch, "The American Revolution Seen From the Bottom Up," in Towards a New Past: Dissenting Essays in American History, ed. Barton J. Bernstein (New York: Pantheon, 1968), pp. 14-15. 33 Jackson Turner Main, Political Parties before the Constitution (Chapel Hill: University of North Carolina Press, 1973), p. 24. 34 Main, Political Parties, pp. 44-79. See also Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University of Kansas Press 1985), pp. 143-79. 35 Merrill Jensen makes the important point that in colonial times the elites actually relied on British authority to overrule unwelcome colonial decisions. Merrill Jensen, The American Revolution within America (New York: New York University Press, 1974), pp. 107-08. 36 Jerome J. Nadelhaft, 'The Snarls of Invidious Animals': The Democratization of Revolutionary South Carolina," in Sovereign States in an Age of Uncertainty, eds. Hoffman and Albert, p. 65. See also Lynd, Class Conflict, pp. 109-32 (describing entry of “new men” into New York politics during the founding decade). 37 Jackson Turner Main, The Upper House in Revolutionary America 1763-1788 (Madison: University of Wisconsin Press, 1967). 38 Lutz, Popular Consent and Popular Control, p. 92. See also Wood, The Creation of the American Republic, pp. 503-04. 39 Margaret Burham MacMillan, The War Governors in the American Revolution (New York: Columbia University Press, 1943), p. 14. 40Nadelhaft, "The Snarls of Invidious Animals,” p. 69; Richard Walsh, Charleston's Sons of Liberty: A Study of the Artisans, 1763-1789 (Columbia: University of South Carolina Press, 1959), pp. 81-82. 41 Irving Bryant, James Madison: The Virginia Revolutionist (Indianapolis: Bobbs-Merrill, 1941), vol. 1, p. 316, quoted in Emory G. Evans, "Executive Leadership in Virginia 1776-1781: Henry, Jefferson and Nelson," in Sovereign States in an Age of Uncertainty, eds., Hoffman and Albert, p. 186. 42 Edward Countryman, A People in Revolution: The American Revolution and Political Society in New York, 1760-1790 (Baltimore: Johns Hopkins University Press, 1981), p. 210. 43 Main, The Sovereign States, p. 174. Main concludes, however, that the New York Governor was not a "democratic creation," pp. 174-75. See also Wood, The Creation of the American Republic, p. 448. Pennsylvania's 1776 Constitution provided for an elected executive, but it was a weak plural Executive Council. 44 Thatch, The Creation of the Presidency, p. 39. The veto messages are contained in Charles Z. Lincoln, ed., Messages from the Governors (Albany, N.Y.: J.B. Lyon Co., 1909), vol. 2. 45 Main, The Sovereign States, p. 178; Thatch, The Creation of the Presidency, p. 49. 46 The vote in the convention was 44-32 to reject the veto. Two days later the compromise proposal carried on a vote of 44-24. Oscar and Mary Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Belknap Press, Rev. Ed. 1969), p. 25 nn. 73, 77. 47 Douglass, Rebels and Democrats, p. 197. 48 Wood, The Creation of the American Republic, p. 452. On the rise of judicial power during the founding decade, see generally ibid., pp. 453-463; M.J.C. Vile, Constitutionalism, pp. 157-58. 49 Wood, The Creation of the American Republic, p. 62. 50M.J.C. Vile, Constitutionalism, pp. 134-143. 51 Peter S. Onuf, "State Politics and Ideological Transformation: Gordon S. Wood's Republican Revolution," William and Mary Quarterly 3d ser. 44 (July 1987): 614. 52 Wood, The Creation of the American Republic, p. 409. 53 For Gordon Wood's most recent discussion of the interrelationship of ideology and human behavior, see Gordon S. Wood, "Ideology and the Origins of Liberal America," William and Mary Quarterly 3d ser. 44 (July 1987): 628-34. See also Jay M. Feinman, "The Role of Ideas in Legal History," Michigan Law Review 78 (March 1980): 722. 54State v. Parkhurst, 9 N.J.L. 427, 442-43 (1828). 553 Va. 20 (1793). 56 Ibid., at 28. 57Ibid., at 72. See generally A.E. Dick Howard," "For the Common Benefit': Constitutional History in Virginia as a Casebook for the Modern Constitution-Maker," Virginia Law Review 54 (June 1968): 832-38. 58 See Symposium, "Massachusetts Constitution of 1780,” Suffolk University Law Review 14 (Summer 1980): 41; Ronald M. Peters Jr., The Massachusetts Constitution of 1780: A Social Compact. B. State Constitution-Making after the Original States The following section reflects, without going into great detail, the major legal and political principles applicable to the admission of new states to the Union, and approval of their state constitutions. Article IV, Section 3, Clause 1, U.S. Constitution New States may be admitted by the Con- FIFTIETH CONGRESS. SESS. II. Chap. 180. An act to provide for the division of Dakota into two States and to enable the people of North Dakota, South Dakota, Montana, and Washington to form constitutions and State governments and to be admitted into the Union on an equal footing with the original States, and to make donations of public lands to such States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the inhabitants of all that part of the area of the United States now constituting the Territories of Dakota, Montana, and Washington, as at present described, may become the States of North Dakota, South Dakota, Montana, and Washington, respectively, as hereinafter provided. SEC. 2. The area comprising the Territory of Dakota shall, for the purposes of this act, be divided on the line of the seventh standard parallel produced due west to the western boundary of said Territory; and the delegates elected as hereinafter provided to the constitutional convention in districts north of said parallel shall assemble in convention, at the time prescribed in this act, at the city of Bismarck; and the delegates elected in districts south of said parallel shall, at the same time, assemble in convention at the city of Sioux Falls. SEC. 3. That all persons who are qualified by the laws of said Territories to vote for representatives to the legislative assemblies thereof, are hereby authorized to vote for and choose delegates to form conventions in said proposed States; and the qualifications for delegates to such conventions shall be such as by the laws of said Territories respectively persons are required to possess to be eligible to the legislative assemblies thereof; and the aforesaid delegates to form said conventions shall be apportioned within the limits of the proposed States, in such districts as may be established as herein provided, in proportion to the population in each of said counties and districts, as near as may be, to be ascertained at the time of making said apportionments by the persons hereinafter authorized to make the same, from the best information obtainable, in each of which districts three delegates shall be elected, but no elector shall vote for more than two persons for delegates to such conventions; that said apportionments shall be made by the governor, the chief-justice, and the secretary of said Territories; and the governors and said Territories shall, by proclamation, order an election of the delegates aforesaid in each of said proposed States, to be held on the Tuesday after the second Monday in May, eighteen hundred and eighty-nine, which proclamation shall be issued on the fifteenth day of April, eighteen hundred and eighty-nine; and such election shall be conducted, the returns made, the result ascertained, and the certificates to persons elected to such convention issued in the same manner as is prescribed by the laws of the said Territories regulating elections therein for Delegates to Congress; and the number of votes cast for delegates in each precinct shall also be returned. The number of delegates to said conventions respectively shall be seventy-five; and all persons resident in said proposed States, who are qualified voters of said Territories as herein provided, shall be entitled to vote upon the election of delegates, and under such rules and regulations as said conventions may prescribe, not in conflict with this act, upon the ratification or rejection of the constitutions. SEC. 4. That the delegates to the conventions elected as provided for in this act shall meet at the seat of government of each of said Territories, except the delegates elected in South Dakota, who shall meet at the city of Sioux Falls, on the fourth day of July, eighteen hundred and eighty-nine, and, after organization, shall declare, on behalf of the people of said proposed States, that they adopt the Constitution of the United States; whereupon the said conventions shall be, and are hereby, authorized to form constitutions and States governments for said proposed States, respectively. The constitutions shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States: First. That perfect toleration of religious sentiment shall be secured and that no inhabitant of said States shall ever be molested in person or property on account of his or her mode of religious worship. Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all rights and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that the lands belonging to citizens of the United States residing without the said States shall never be taxed at a higher rate than the lands belonging to residents thereof; that no taxes shall be imposed by the States on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use. But nothing herein, or in the or dinances herein provided for, shall preclude the said States from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the lands thus granted from taxation; but said ordinances shall provide that all such lands shall be exempt from taxation by said States so long and to such extent as such act of Congress may prescribe. Third. That the debts and liabilities of said Territories shall be assumed and paid by said States, respectively. Fourth. That provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control. SEC. 5. That the convention which shall assemble at Bismarck shall form a constitution and State government for a State to be known as North Dakota, and the convention which shall assemble at Sioux Falls shall form a constitution and State government for a State to be known as South Dakota: Provided, That at the election for delegates to the constitutional convention in South Dakota, as hereinbefore provided, each elector may have written or printed on his ballot the words "For the Sioux Falls constitution," or the words "against the Sioux Falls constitution," and the votes on this question shall be returned and canvassed in the same manner as for the election provided for in section three of this act; and if a majority of all votes cast on this question shall be "for the Sioux Falls constitution" it shall be the duty of the convention which may assemble at Sioux Falls, as herein provided, to resubmit to the people of South Dakota, for ratification or rejection at the election hereinafter provided for in this act, the constitution framed at Sioux Falls and adopted November third, eighteen hundred and eighty-five, and also the articles and propositions separately submitted at the election, including the question of locating the temporary seat of government, with such changes only as relate to the name and boundary of the proposed State, to the re-apportionment of the judicial and legislative districts, and such amendments as may be necessary in order to comply with the provisions of this act; and if a majority of the votes cast on the ratification or rejection of the constitution shall be for the constitution irrespective of the articles separately submitted, the State of South Dakota shall be admitted as a State in the Union under said constitution as hereinafter provided; but the archives, records, and books of the Territory of Dakota shall remain at Bis |