The Emergence of Democratic Government in America 1776-1787

In 1776 ten states adopted constitutions: New Hampshire, South Carolina, Virginia, New Jersey, Maryland, Delaware, Rhode Island, Connecticut, Pennsylvania and North Carolina. These new constitutions established the relationship between the people and their government and were designed to convey the moral conditions of liberty, set forth certain natural rights, and define legislative, executive and judicial powers. For example, the Pennsylvania Constitution of September 28, 1776, reads:

I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. 

 II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding… 

 IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

Reflective of revolutionary thought, this constitution confirms that: (i) men are born equal, free, and possess certain inalienable rights including freedom of conscience, and (ii) the power to govern is derived from the people, with all officers of government being accountable to them. Adopted a few years later, the Massachusetts Constitution of March 2, 1780, states:

III. As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion and morality… 

In the colonial mind, the principles of religion and morality serve as pillars of self-government and a free republic and are woven in many state constitutions. They also recur in many of the writings of the Founders, including Washington’s Farewell Address.

Another primary purpose of the state constitutions was to democratize the state legislatures. For example, all 1776 state constitutions provided for annual elections, most established bi-cameral legislatures, and term limits such as four years. Some contained unique features such as Pennsylvania which had a twelve-member executive council (instead of a governor), a unicameral legislature, and a Council of Censors, whose duty was to identify constitutional violations. The object was to limit legislative power and allow for expanded representation, which also resulted in many ordinary folk being elected to legislatures. Another universal feature of the constitutions was to divide and separate the legislative, executive, and judicial powers. 

The colonists were very familiar with the writings of Montesquieu who wrote, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” For example, the Virginia Constitution of June 29, 1776 reads: “SEC. 3. That the legislative and executive powers of the State should be separate and distinct from the judiciary…” and many others had similar, distinct provisions for the separation of powers. They believed that this was critical to the protection of individual liberty. However, if the state constitutions had a democratic weakness, it was that none were ratified by the people directly, as was the U. S. Constitution in state ratifying conventions.

In contrast to state constitutions, the Articles of Confederation fell short of the revolutionary ideals set forth in the Declaration of Independence in several respects:

• The Articles formed a confederation of the States –not ratified separately by the people. 

• The Articles created a single Congress which exercised legislative, executive, and judicial powers, thus violating the principle of separation of powers. 

 • There was neither a bicameral legislature, nor an executive that could execute the laws with requisite authority, nor a Bill of Rights to protect the natural rights of citizens. 

• The Articles required unanimous approval of the States to be amended.

In their operation, unlike the Constitution, the Articles generally failed to properly secure the people’s natural rights with appropriate checks on federal powers. 

While delegates had term limits, they were to be “appointed in such manner as the legislatures of each State shall direct.” Regarding the necessity to rule by “consent of the governed” in his essay titled Vices of the Political Systems of the United States, James Madison noted that “in some of the States, the Confederation is recognized … [as] part of the [State’s] Constitution … however [in others] it has received no other sanction than that of the Legislative authority.” Hamilton argued that it was a “gross heresy” that State legislatures have a right to revoke and elect to withdraw from the compact (Federalist No. 22). The multiplicity, mutability, and injustice of State laws were other vices identified by Madison under the Articles.

Practically speaking, the federal confederacy governed with unchecked and unbalanced powers, an unequal system of taxation, and a lack of unified provisions for the regulation of commerce and common defense. Without the practical ability to collect taxes and obtain consistent revenues, the government couldn’t function. And with nine States required for approval of any Congressional act, the structure proved lopsided and feeble in its application. As a consequence of its weaknesses and shortcomings, the Articles became a source of contention among the States, particularly between the larger States versus the smaller ones.

 
In Federalist No. 15, Alexander Hamilton said that the fundamental imperfections of the Articles of Confederation were in substance admitted by both opponents and friends of the new Constitution, and he proceeded to list these imperfections and “errors in the building,” arguing that as a result they had “reached almost the last stage of national humiliation”:

• Debts owed to foreigners and citizens 

• Territories and posts yet to be surrendered by foreign powers 

• Lack of troops and treasury to repel aggressions 

• Collapse of public credit 

• Diminution of land values 

• Scarcity of money

In order to forge an effective Union of the people under a new Constitution, the primary vice of the Articles of Confederation had to be confronted -- that the State governments operate “in their corporate or collective capacities as distinguished from the individuals of which they consist,” i.e., the national government under the Articles had no direct authority over individual citizens. In order to do this, Hamilton implicitly confirms that “the People” are sovereign -- based on their individual natural rights, and thus they are the ones creating a new compact between themselves and the federal government, not the States. He argues that only by adhering to this “first principle” and “main pillar” can they form “the characteristic difference between a league and a government; [and] extend the authority of the Union to the persons of the citizens, -- the only proper objects of government.” Correcting the significant defects of the Articles was the task of the Constitutional Convention of 1787, which ultimately led to a new federal constitution.

The Birth of American Federalism

The existence of the states pre-dated the Constitution, having formed (as thirteen colonies) an embryonic union upon the adoption of the Declaration of Independence. The states continued as relatively independent, sovereign entities under the Articles of Confederation. As the Constitutional Convention approached, James Madison wrote that he had “sought for some middle ground, which may at once support a due supremacy of the national authority” while not excluding the states as “subordinately useful.” This effectively framed the great dilemma of federalism: how do you delegate and vest supreme authority and sovereignty in the new national or federal government while retaining sufficient authority and subordinate sovereignty in the state governments? Can imperium in imperio actually exist and function? 

First, the federal government was designed to be limited in its power, with the bulk of power reserved to the states or retained by the people. As Madison said, “The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.” The limited or “definite” powers delegated by the people to form the national republic were intended to create a separation and balance, not only between the branches of government (executive, legislative and judicial), but also between federal and state authority. The ultimate objective of these limitations was to protect and preserve individual liberty and self-government while guarding against tyranny. 

Secondly, Madison confirmed this constitutional objective and described the rationale for a dual or “compound” republic with shared sovereignty: 

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself (Federalist No. 51). 

Thus, under federalism: (1) a “double security” is provided to protect the rights of the people, and (2) the federal and state governments are to “control each other.” However, this dual sovereignty was not easy to achieve. 

Finally, in the Constitutional Convention debates held in the summer of 1787, the inherent tension between proposed federal and state powers, as well as the potential imbalance of political influence between large and small states in the new national legislature were plainly manifested and vigorously argued. The issue that loomed the largest in the debates was centered on representation – how would the people individually and the states themselves be represented in the national legislature? 

The Virginia Plan proposed that the national legislature should be bi-cameral and that: “the people of each State ought to elect the First Branch of the National Legislature; [and] the Second Branch of the National Legislature ought to be elected by the first, out of a pool of candidates nominated by the state legislatures.” After prolonged debates, the large and small state delegates reached a concession, known as the “Connecticut Compromise.” Madison himself confirmed that the provision to be adopted would be “partly federal, partly national,” by letting “the people be represented and the votes be proportional [in the House]. In all cases where the Government is to act on the States as such … let the States be represented and the votes be equal [in the Senate] (note: as originally established, the state legislatures elected their U.S. Senators). This great compromise between the large and small states formed a significant core of American federalism under the Constitution.

The Constitutional Freedom of Speech

Fifty years before the Constitution was adopted, in November 1737, Benjamin Franklin wrote: “Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.” (The Pennsylvania Gazette). This statement would probably reflect the views of all of the Founding Fathers and the vast majority of the American colonists in the 18th century. As set forth in The Declaration of Independence, all men “are endowed by their Creator with certain unalienable Rights….” In the minds of the Founders these God-given, unalienable rights not only included “life, liberty, and the pursuit of happiness,” but also freedom of speech, including the right to express both civic and religious opinions, and to dissent or criticize the government. As with the others, this was considered as a natural or inherent right.

The history of free thought and free speech was grounded in both the Reformation and the Enlightenment. In 1644, John Milton wrote in Areopagitica, “The State shall be my governors, but not my critics….” In other words, government has a role to administer the duties and responsibilities of the State, but not to censor its citizens. Milton argued that there should be an open debate or encounter about political and religious matters and that is how truth can prevail: “Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? Her confuting is the best and surest suppressing.” (Id. p. 13). In the Virginia Act for Establishing Religious Freedom (1785), Thomas Jefferson wrote: “truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error.” Later, in 1859, John Stuart Mill in “On Liberty” agreed with Jefferson and Milton, and similarly reflected:

 

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

 

These significant views of the power of truth vs. error, would manifest themselves in the American founding period, as well as indirectly influencing Supreme Court decisions during the 20th century. The prevailing view has been that darkness (bad speech) should be allowed and exposed to light.

As the new nation was being established, the Constitution was adopted in 1787, with the promise of a Bill of Rights being fulfilled in 1789. James Madison’s version of the speech and press clauses, introduced in the House of Representatives provided that: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” (1 Annals of Congress 434, June 8, 1789). The final version of the Bill of Rights, Amendment I, (adopted December 15, 1791) states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In theory and in practice, freedom of speech is integrally connected to the other first amendment rights, such as the free exercise of religion and the freedom of the press in particular.

As The Declaration of Independence also states, “that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” How can a self-governing people “consent” to a delegation of their natural rights to government without freedom of speech? The consent of the governed would naturally necessitate or require both reflection and choice on who to vote for, what laws and policies to support, as well as the right to disagree and to dissent. While we have a democratic republic, and the majority has great sway in governing, the rights of the minority have been guarded though constitutional forms, including separation of powers, checks and balances, but particularly in the First Amendment itself. As Justice Louis Brandeis wrote in his concurring opinion in Whitney v. California (1927), “recognizing the occasional tyrannies of governing majorities, they [the Founders] amended the Constitution so that free speech and assembly should be guaranteed.” (Joseph R. Fornieri, Free Speech: Core Court Cases, 2020, p. 24, cited as Fornieri). In this regard, Justice Brandeis also wrote:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. (Id.)

It is also evident that a rational deliberation on policy should lead to best outcomes for individuals and society as a whole. In a related vein, societal progress can and is often spurred by a “marketplace of ideas” (see: Justice Oliver Wendell Holmes concurring opinion in Abrams v. United States (1919), Fornieri p. 12). As Justice Holmes notably argued:

 

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.” (Id.).

As our Founders believed in the connection between virtue and good government, they also believed that virtue was essential to happiness. As George Washington said, “there is no truth more thoroughly established, than that there exists … an indissoluble union between virtue and happiness.” (First Inaugural Address, 1789). In order for virtue to triumph over vice, individual character development, human flourishing, and the education of the mind must all have a wide-open door, and simply cannot occur and prosper without free inquiry and free speech. Freedom of speech and expression also manifests themselves in individual autonomy, will, self-determination, and in the arts and sciences – all keys to human progress.

While it can be viewed negatively, freedom of speech can also function as a “safety valve” – allowing radicals to vent and blow off steam. Again, in Whitney, Justice Brandeis writes, “fear breeds repression; … repression breeds hate;… hate menaces stable government; … the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and the fitting remedy for evil counsels is good ones.” (Fornieri, p. 24). In order to uphold and maintain freedom of speech we should always allow and even welcome contradictory and opposing views. The resulting contrasts in ideas and opinions are essential to our democratic republic and may even be redemptive.

Benjamin Franklin "On True Happiness"

Benjamin Franklin said, “virtue and happiness are mother and daughter” (Poor Richard's Almanac). He believed that real happiness was not just about pleasure and positivity but more about our character, conduct, and in doing good deeds. He wrote:

“The desire of happiness in general is so natural to us that all the world are in pursuit of it; all have this one end in view, though they take such different methods to attain it, and are so much divided in their notions of it.

Evil, as evil, can never be chosen; and though evil is often the effect of our own choice, yet we never desire it but under the appearance of an imaginary good.

Many things we indulge ourselves in may be considered by us as evils, and yet be desirable; but then they are only considered as evils in their effects and consequences, not as evils at present and attended with immediate misery.

Reason represents things to us not only as they are at present, but as they are in their whole nature and tendency; passion only regards them in their former light. When this governs us we are regardless of the future, and are only affected with the present. It is impossible ever to enjoy ourselves rightly if our conduct be not such as to preserve the harmony and order of our faculties and the original frame and constitution of our minds; all true happiness, as all that is truly beautiful, can only result from order.

Whilst there is a conflict betwixt the two principles of passion and reason, we must be miserable in proportion to the struggle, and when the victory is gained and reason so far subdued as seldom to trouble us with its remonstrances, the happiness we have then is not the happiness of our rational nature, but the happiness only of the inferior and sensual part of us, and consequently a very low and imperfect happiness to what the other would have afforded us.

If we reflect upon any one passion and disposition of mind abstract from virtue, we shall soon see the disconnection between that and true, solid happiness. It is of the very essence, for instance, of envy to be uneasy and disquieted. Pride meets with provocations and disturbances upon almost every occasion. Covetousness is ever attended with solicitude and anxiety. Ambition has its disappointments to sour us, but never the good fortune to satisfy us; its appetite grows the keener by indulgence, and all we can gratify it with at present serves but the more to inflame its insatiable desires.

The passions, by being too much conversant with earthly objects, can never fix in us a proper composure and acquiescence of mind. Nothing but an indifference to the things of this world, an entire submission to the will of Providence here, and a well-grounded expectation of happiness hereafter, can give us a true satisfactory enjoyment of ourselves. Virtue is the best guard against the many unavoidable evils incident to us; nothing better alleviates the weight of the afflictions or gives a truer relish of the blessings of human life.

What is without us has not the least connection with happiness only so far as the preservation of our lives and health depends upon it. Health of body, though so far necessary that we cannot be perfectly happy without it, is not sufficient to make us happy of itself. Happiness springs immediately from the mind; health is but to be considered as a condition or circumstance, without which this happiness cannot be tasted pure and unabated.

Virtue is the best preservative of health, as it prescribes temperance and such a regulation of our passions as is most conducive to the well-being of the animal economy, so that it is at the same time the only true happiness of the mind and the best means of preserving the health of the body.

If our desires are to the things of this world, they are never to be satisfied. If our great view is upon those of the next, the expectation of them is an infinitely higher satisfaction than the enjoyment of those of the present.

There is no happiness then but in a virtuous and self-approving conduct. Unless our actions will bear the test of our sober judgments and reflections upon them, they are not the actions and consequently not the happiness of a rational being.”

Pennsylvania Gazette (1785)