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.
