The State Constitutions are the oldest things in the political history of America, for they are continuations and representatives of the royal colonial charters, whereby the earliest English settlements in America were created. . . . Their interest is all the greater, because the succession of Constitutions and amendments to Constitutions from 1776 till today enables the annals of legislation and political sentiment to be read in these documents more easily and succinctly than in any similar series of laws in any other country. They are a mine of instruction for the natural history of democratic communities.2

One might almost say that the romance, the poetry and even the drama of America politics are deeply embedded in the many state constitutions promulgated since the publication of Paine's Common Sense, the Declaration of Independence, and the Virginia Bill of Rights.3

In its resolution of May 10 and 15, 1776,4 the Second Continental Congress recommended that in colonies "where no government sufficient to the exigencies of their affairs have been hitherto established" they should "adopt such Government as shall, in the Opinion of the Representatives of the People, best conduce to the Happiness and Safety of their Constituents in particular and America in general."5 During the ensuing decade after Independence, the cardinal question in discussions about the proper constitutional structure of the new state governments concerned the nature and powers of the legislative and executive branches, and their relationship to each other. By the time the Constitutional Convention met in the summer of 1787, the 13 independ

ent states had debated, framed, adopted, rejected, modified, and continued to debate at least 20 state constitutions in the period since 1775. During the decade following Independence, therefore, the states, in the words of Jackson Turner Main, "became the laboratories for testing theories, trying the institutions in the various forms that presently appeared in the constitutions of the United States and other countries.”7 John Adams' boast, "I made a Constitution for Massachusetts, which finally made the Constitution of the United States," while seriously oversimplifying the matter, contains an important element of truth.8

The founding decade of 1776-1787 witnessed the internal political struggle over "who should rule at home" as well as the larger revolutionary struggle for "home rule." The principal controversies over the first state constitutions had little to do with "rights." What was primarily at stake was how the new state governments would be structured and what groups in society would have the dominant role in making policy under the new governments.

It is now apparent that there was much greater diversity of opinion and interest reflected in the state constitution-making processes during the founding decade than was earlier thought. The ultimate outcomes of the constitutional battles in the states were also much closer and more contingent that has been commonly recognized. In this sense, the general consensus in favor of "republican" government was "a consensus that promoted discord rather than harmony."10

Obviously, the stakes surrounding the question of who was to rule at home were very high. Independence, coupled with drastic change in the political system of the past, was feared by those who had held power under the colonial regimes. To those who sought power, independence without real change in the political system was not worth the effort. This

tension would form the basis for the struggles over the framing and implementation of the state constitutions between 1776 and 1787.

The need for separation of powers was a priority in the minds of the framers of the new state constitutions because of the nature of the colonial dispute over England's arbitrary exercise of power and because of abuses arising from dual officeholding in the colonies. Therefore, these early constitution drafters were led to include statements of the principle of separation of powers within the texts of the constitutions. Because many of the first state constitutions contained what seemed to be explicit statements concerning separation of powers,11 it is easy to assume that concerns about the proper balance of power and relationships among the branches had been worked out by 1776. Nothing could be further from the truth. 12 Also, merely stating the principle of separation of powers did nothing to establish any firm mechanism of checks to prevent, or at least remedy, encroachments of one branch into the proper domain of the others. Struggles over government structure and power occurred throughout the founding decade. The evolution of state constitutions during this period reflects a transition from early recognition of separation of powers to a later emphasis on checks and balances.

Historians and political scientists have identified two major "waves" of state constitution making during the founding decade. 13 The key point in the first wave was the Pennsylvania Constitution of 1776; the Massachusetts Constitution of 1780 was the central feature of the second wave.

The First Wave

The first wave of state constitutions generally includes those adopted during the first year after Independence. These were drafted quickly at the beginning of the Revolution, usually by legislative bodies, and did not differ much from the colonial charters except with respect to weakened executive power and the inclusion of Declarations of Rights. Little consideration was given to structural mechanisms to check the dominant legislatures, although South Carolina's 1776 constitution contained an absolute gubernatorial veto (in effect only until 1778) and most of the constitutions created upper houses. Pennsylvania's 1776 constitution does not fit this description in a number of respects, but represents the culmination of the first wave and the direct stimulus for the second wave.

Pennsylvania's radical 1776 constitution was drafted by a separate convention elected for the purpose and followed Thomas Paine's recommendation in Common Sense that "simple" governments be established.14 Under the Frame of Government, legis

lative power was placed in a unicameral assembly (often attributed to Benjamin Franklin's influence)15 with virtually no structural checks, such as a veto power for the weak, albeit elected, plural executive (headed by a "president" chosen by the assembly). Similarly, members of the supreme court could be removed by the legislature for "misbehavior." The constitution contained provisions aimed at making the assembly an open, deliberative body, accountable to the voters. Bills had to be enacted by two successive legislative sessions before becoming law. Legislators served one-year terms, and could serve no more than four out of seven years. Such legislative accountability provisions were virtually unknown in other state constitutions, and generally would not appear until well into the nineteenth century. These provisions relating to the otherwise dominant legislative branch could be seen as a form of popular "check" on legislative authority.

The Pennsylvania Constitution established the principle of apportionment by "the number of taxable inhabitants," with regular reapportionment. Property requirements for voting were eliminated, and the much broader requirement that a voter simply pay taxes was substituted in its place. 16 Finally, a Council of Censors was to be elected by the people every seven years to review legislative actions for conformity "to the principles of the constitution" and to propose amendments to the constitution.

From the moment it was implemented, controversy raged over whether the constitution should be changed. This controversy dominated most elections in Pennsylvania until a new constitution was substituted 14 years later in 1790 as part of the overall movement leading to the federal Constitution. 17 This split in Pennsylvania between what came to be known as the Constitutionist and Republican "parties"18 reflected in a general sense the controversies that would surround the new constitutions in other states and carry over into legislative politics in the lawmaking branches created by the new constitutions.

Almost immediately after Common Sense was published, John Adams published his Thoughts on Government 19 as, among other things, a response to Paine. Adams set forth an alternative, more traditional vision of how the new state governments should be constituted. He proposed a model based on "balanced government," or separation of powers backed by checks, to which bicameralism and executive power were central. He also advocated property requirements for officeholding and voting.

The contending visions in the state constitution making of the founding decade were, therefore, generally delineated as early as 1776. The opposing visions of the proper structure of state government were embraced by contending factions in each of the

states where, with some variations, the visions collided throughout the decade of 1776-1787. As Edward Countryman has noted: "The dominant and ultimately triumphant [view] was toward constitutional stability. The other, weaker but still noteworthy, was toward some form of popular council democracy."20

After what happened in Pennsylvania, which was watched with great interest and concern in other colonies,21 traditional leaders in a number of colonies adopted a strategy of delay. In North Carolina, for example, this delay was a defensive response to a radical faction in the Provincial Congress, and has been described as a defeat for the "democratic faction."22

The November 1776 Orange and Mecklenburg County instructions to their Provincial Congress delegates reflected the same notions of a simple popular government as those espoused by Paine and the Pennsylvania Constitutionists.23 The outcome in North Carolina, however, was a compromise, including, for example, a bicameral legislature but a wider franchise.

The Second Wave

The state constitutions of the second wave were adopted in a more deliberate fashion, often by specially elected conventions. These constitutions reflected a direct concern with mechanisms to check actions by the dominant legislative branches. The second wave was much longer than the first, lasting from 1777 through 1784, when New Hampshire finally revised its 1776 constitution.

The New York experience leading to its 1777 constitution marked the beginning of the second wave of state constitution making during the founding decade. The committee drafting the New York Constitution stretched out the process for eight months.24 The convention avoided an earlier suffrage proposal for all white-male taxpaying freeholders,25 but did agree to annual assembly elections, improved apportionment and the gradual elimination of voice voting (a crucial change in a tenant state like New York). On the other hand, the constitution provided for a senate and for an executive veto, exercised together by the governor, chief justice and chancellor acting as the Council of Revision. The victory achieved by the radicals in Pennsylvania was transformed into, at best, a compromise in New York.26 The experience of Massachusetts with constitution making from 1776 to 1780, however, represents the best example of the second wave. In contrast to most of the other states, the processes leading to the well-known Massachusetts Constitution of 1780 are very well documented.27

The pressure for a legitimate state constitution to replace the modified colonial charter led to the un

successful legislatively proposed constitution of 1778,28 and ultimately to the famous Massachusetts Constitution of 1780, the oldest American constitution still in effect, and a document bearing the personal mark of John Adams. The Massachusetts Frame of Government created a bicameral legislature consisting of a senate and house of representatives, "each of which shall have a negative on the other." The governor was given the veto power, subject to being overridden by a two-thirds vote in the legislature. Property requirements were imposed for voting and officeholding. Judges served during good behavior, and advisory opinions could be requested from the Supreme Judicial Court by either branch of the legislature, as well as by the governor and council. Thus, in the period from 1776 to 1780, the clash of ideas in state constitutional conventions resulted in the development of opposing visions of government structure and power. After an initial, resounding victory in Pennsylvania in 1776, the radical vision slowly lost ground until, in 1780, it was completely rejected in Massachusetts, and in the later state constitutions.

Legislative Dominance

The primary focus of the radical democrats had been on the legislative branch. Issues relating to broader suffrage, fairer apportionment, annual elections, elimination of property requirements for officeholding, unicameralism, and elimination of executive interference with legislative policy were raised in virtually all of the states. Most of the early state constitutions, although some contained express recognition of the doctrine of separation of powers, "tended to exhault legislative power at the expense of the executive and the judiciary."29 This increased legislative dominance came primarily at the expense of the executive (identified with the British Crown),30 against which the colonial assemblies had struggled but never succeeded in achieving anything but shared power.

In 1787 James Madison told the federal Constitutional Convention that state legislatures had become "omnipotent" because, "Experience had proved a tendency in our governments to throw all power into the Legislative vortex."31 Even though only three states created unicameral legislatures, the radical democrats' constitutional platform in the other states advocated unicameralism as a central feature. They knew that a unicameral legislature was susceptible to vices, but they sought, according to Jesse Lemisch, to "check if from belowwith more democracy-rather from above, with less."32 Lemisch was referring primarily to the continued use of extralegal conventions and congresses (the people "out of doors") and binding instructions for represen

tatives, but the legislative accountability provisions in Pennsylvania's 1776 Constitution could also be seen as examples of such checks from below.

The two basic factions that developed in each of the states during the battles over the state constitutions, and which contended over the franchise, legislative structure, and executive powers, carried over into the legislative politics of the founding decade. In virtually all of the states, two “parties,” described by Jackson Turner Main as the "Localists" and the "Cosmopolitans,"33 clashed again and again over the key legislative issues of the founding decade. These issues included the treatment and punishment of loyalists, price regulation, issuance of paper money, payment of the public debt, taxation policy, debtor/creditor relations, public spending, and a range of social and cultural issues.34

In the majority of states, even though bicameral legislatures were created, the lower houses were clearly the most important. Not only did the membership in the lower houses expand to include "new men" through reapportionment and lower suffrage and officeholding requirements, but at the same time, these bodies took on new powers formerly exercised by the colonial magistracy. Those persons who had been accustomed to controlling the colonial governments, at least within their scope of authority,35 were extremely uncomfortable sharing with, or even losing power to, new, inexperienced, lower-class representatives. For example:

Francis Kinloch found it "dreadful" to be mixed up with "butchers, bakers [and] blacksmiths," and Henry Laurens denounced inexperienced and unqualified representatives: They thought business could be "completed with no more words than are necessary in the bargain and sale of a cow."36

There were also serious criticisms of the legislative product of the newly powerful state legislatures. It was the new state legislatures' substantive records, both on their merits and in terms of the sheer volume of laws and amendments, that drew the most sustained criticism from traditional leaders and ultimately served as a powerful stimulus for the federal Constitutional Convention in 1787.

In those states with bicameral legislatures, the upper houses, or senates, had been intended to serve as a buffer or check on the popular lower houses. The upper houses in the Revolutionary state constitutions were the direct descendants of the colonial governors' councils,37 which performed both executive and legislative functions. The members of the pre-Revolutionary councils, however, owed their positions to the British Crown. Independence brought a dramatic change to these governmental bodies. The senators

no longer owed their seats to the Crown. After the Revolution, the senators were responsible to the expanded electorate.

Donald Lutz described the general picture:

The overall result was that senates were somewhat more conservative than lower houses and protected property more carefully; but they failed to provide a consistent check on lower houses, as had been intended.38

The senators began to respond to the electorate in basically the same way that members of the lower house were responding.

Gubernatorial Power

The governorship underwent a profound transformation from an instrument of British policy exercising prerogative powers including an absolute veto of legislative acts during the colonial period, to a legislatively appointed office almost totally beholden to the newly dominant state legislatures. After struggling so long against powerful governors, it would have been impossible for the newly independent states to adopt a strong governorship. This was true even though at the time of Independence, there was great need for the exercise of decisive power, particularly in the context of the war.39 A number of states initially did not even use the title "governor," preferring instead "president."

Although, as a general matter, the early state constitutions reflected a weak, legislatively dominated governor, this result was not approved unanimously. Pennsylvania, in its radical 1776 constitution, provided for no executive veto. By contrast, South Carolina, in its conservative 1776 constitution, provided its president with an absolute veto over legislation. However, the presidential veto in South Carolina became a target for reformers40 and was eliminated in the 1778 revised constitution adopted by the legislature. John Rutledge had served as president under the 1776 South Carolina Constitution. He tried unsuccessfully to exercise that constitution's absolute veto to block the 1778 instrument that eliminated that very power. Rutledge also opposed the change in electing the upper house (the Legislative Council) from the assembly to the electorate.

Despite the relative weakness of most Revolutionary executives, which led James Madison to characterize the branch as the grave of all useful talents,"41 a number of distinguished leaders in addition to Rutledge served in the post. Among them were Patrick Henry, Thomas Jefferson, and Benjamin Harrison in Virginia, John Hancock in Massachusetts, John Dickinson in both Pennsylvania and Delaware, William Livingston in New Jersey, and

Joseph Reed in Pennsylvania. Partly as a result of the stature of these governors, and partly because they exercised a wide range of statutorily granted powers beyond those formally reflected in the state constitutions, it has now been recognized that the governors were more important, and stable, during the founding decade than it was once thought. Governors generally opposed the legislatures' popularly inspired measures to delay taxes and permit payment of debts and taxes in other than hard money. They used the medium of their annual messages to the legislature to set the agenda of public issues. For example, Edward Countryman describes the importance of the governor's constitutionally mandated message to the legislature in New York:

Clinton took that charge seriously, recommending policy after policy in his messages to the legislature. The editor of those messages finds that some 170 laws were passed and 40 other actions taken during the Confederation period in response to the governor's suggestions.42

New York provided for the first popularly elected governor,43 beginning a trend toward a republican executive-elected by, and responsible to, the electorate. Also, New York began a trend toward stronger executive power. The New York Council of Revision went on to veto 58 legislative enactments prior to the federal Constitutional Convention.44

The question of whether a state constitution. should include a gubernatorial veto became a crucial one in the processes leading to the Massachusetts Constitution of 1780. An early committee report on the rejected 1778 constitution proposed a veto power, but it did not appear in the final version rejected by the people of the towns.45 John Adams' draft of the 1780 constitution provided for an absolute gubernatorial veto. The constitutional convention, after initially rejecting the veto on a close vote,46 ultimately modified Adams' proposal to permit a legislative override of gubernatorial vetoes, a change which Adams later said was made "to my sorrow."47

Conclusion

The clearly established pattern during the founding decade was a gradual transition from legislative dominance or "omnipotence" toward an increased role for the executive and judicial branches. In the early years of the Revolution, the judiciary had almost been forgotten. If anything, it was considered part of the executive power that was the target of such hostility in the early state constitutions. As experience continued, however, with the dominant state legislative branches, the judiciary, along with the ex

ecutive, came to be viewed as a check upon legislative encroachments on the rights guaranteed by the constitutions and the prerogatives of the other branches.48 The new executive and judicial powers operated as a check on recognized legislative power, rather than a sharing of legislative power. It is in this sense that public concern evolved from a focus on separation of powers, which responded to grievances against the Crown before the Revolution, toward practical mechanisms of checks and balance, in response to experiences with legislatively dominated republican governments from 1776 to 1787.

In 1776 and the years immediately following, virtually all of the newly independent constitution makers' trust was placed in the legislative branch, albeit usually with two houses. As Gordon Wood has observed, at this time "a tyranny by the people was theoretically inconceivable."49 The legislative branch had been identified with the people themselves, and viewed as a safeguard against executive abuses rather than a possible source of abuses itself. Under these circumstances, the 1776 brand of legislative supremacy, although not supported unanimously, was not surprising. Effective checks on this legislative power were not viewed, by many, as necessary. Executive and judicial power were recognized as important and distinct from legislative power, but not as serving as a check on exercises of legislative power that might either encroach on individuals' rights or upon the prerogatives of the other two branches. The 1776 Pennsylvania Constitution is the purest example of this early American constitutional thinking recognizing the separation of powers but not checks and balances.50

This philosophy soon began to change, however, as experience under the new legislative supremacy began to be felt. More traditional leaders in the states framed arguments against the simple republicanism of the first wave and argued that, for example, increased executive veto power was not inconsistent with popular sovereignty but, rather, was a necessary mechanism to control legislative power. Further, these conservatives were able to begin to separate government from "the people" or society and to demonstrate the need for protections from abuses by the government. In this way, even within revolutionary republican rhetoric with its absence of reliance on hierarchical social structure which had justified "balanced government," the case could be made for checks on the misuse of power by government officials.51 As early as 1777, in the New York Constitution, there is evidence of a distrust of the legislative branch's willingness to stay within the confines of the legislative power and to honor the limits of the state Declarations of Rights. The transition begun in New York was, in effect, completed with the approval of