Law: Cases and Materials. 4Thed. Charlottesville, Va.: Lexis Law Publishing, 2006.
The constitutional convention has been called “America’s basic institution.” It developed in the actual process of state-making during the American Revolution. When the people of the thirteen colonies declared their independence, they had not only to prove their claim on the battlefield but also to reestablish the foundations of political authority. The fundamental principle was stated in the Declaration of Independence: “That governments are instituted among men, deriving their just powers from the consent of the governed.” But how could the people, thrown into the figurative state of nature by the dissolution of old bonds and allegiance, reduce the principle to practice? History furnished no models; and political philosophers, though they had speculated on the sovereignty of the people, had not descended to the lowly realm of political means and institutional contrivance to implement their theory.
The Revolutionary Americans discovered the answer to the riddle in the constitutional convention. A product not of abstract theory but of developing practice, of essentially ad hoc experimentation under the trying conditions of the Revolutionary War, the first state constitutions were at best imperfect realizations of the principle of popular consent in the making of government. In 1780, however, the Massachusetts constitution produced a model from which the theory of constituent sovereignty could be formulated. It contained three main elements. First, the people, through their elected delegates, “represent” their sovereignty in a convention called to constitute a government. Second, the constitution thus framed is ratified by the people and given effect by their majority. Third, the people retain the right to revise, and presumably to abolish, the constitution by the ongoing exercise of their sovereignty.
It was scarcely to be expected that the first state constitutions would endure beyond the age that produced them. The age was a time of peril; American society was in its infancy; self-government was a daring experiment; and democracy had not been born. “In truth,” Thomas Jefferson later observed,
the abuses of monarchy had so much filled all the space of political contemplation, that we imagined everything republican which was not monarchy. We had not yet penetrated to the mother principle, that “governments are republican only in proportion as they embody the will of their people, and execute it.”
The movement for the reform of the original state constitutions got underway after 1800, but the principal impetus developed in the years following the Peace of Ghent. Problems of war and foreign relations receded from view, and the people turned inward to catch up with nearly a half-century’s growth and to fix the direction of further advance. The mere process of growth made manifest the errors and defects of the Revolutionary state constitutions. Where they obstructed progress or blocked the aspirations of newly ascendant groups in the community, there were demands for constitutional reform; and backed by the force of Revolutionary ideas of freedom and equality, these demands became irrepressible. The expanding American West opened new political vistas. Six new states—Indiana, Illinois, Mississippi, Alabama, Missouri, and Maine—entered the Union between 1816 and 1821. Their constitutions, while in most respects imitative of Eastern models, registered important democratic gains, particularly in the provision for universal white manhood suffrage. Of the original states, only Maryland had taken this step.
All the states felt the pressure for democratization, and slowly, haltingly, responded to it. Democracy was the political talisman of the new age—the age that had its symbol in Andrew Jackson, elevated to the Presidency in 1829. “There was a kind of democratic fanaticism in the air,” wrote a prominent historian of several decades ago. “A kind of metaphysical entity called the People (spelled with a capital) was set up for men to worship. Its voice was the voice of God; and, like the king, it could do no wrong.” But many Americans challenged the wisdom or the legitimacy of this voice. From conviction or habit or interest—or all together—they were attached to established institutions and profoundly distrustful of this brazen pretender King Numbers. The confrontation between conservatives and democratic reformers—the old order and the new—occurred in many areas of public life; but nowhere more meaningfully than in the state constitutional conventions of the time. Conventions were the visible embodiments of the people’s sovereignty. They were unsurpassed arenas of ideological encounter and potent instruments of reform.
The three state conventions that are the subject of this volume—Massachusetts in 1820–1821, New York in 1821, and Virginia in 1829–1830—were the most interesting, in some respects the most important, of the age. No others are likely to prove so instructive to the student of American history. The three states were leaders of their respective sections—New England, Middle Atlantic, and Southern. Each stood for something greater than itself; each convention registered the tone, the problems, the conflicts of a traditional center of American society and thought; and each was bound to have an influence in neighboring states. The three states had a history in common, of course; they faced some of the same challenges of reform; and the main lines of controversy in these conventions converged on two sets of political assumptions, one basically conservative, the other basically democratic. But beyond this it is difficult to generalize. Each state, each convention, was a phenomenon unto itself and must be understood in terms of its own peculiar history. In Massachusetts the issue of religious liberty was of paramount importance. In New York the most troublesome problems were those of institutional structure, especially in the executive and judicial branches of government. And in Virginia the underlying issue was equality of representation between the two great divisions of the state.
But whatever the particular issues, the fundamental problem of each convention was to work out some sort of balance between three primary values—democracy, liberty, and property. Thus the theme of this volume. Democracy meant several things: first, the right of the people to establish or reform the constitution; second, the equality of rights—suffrage, representation, access to public office—under the constitution; and third, the continuing responsibility of the government to the majority opinion of the community. Reformers advocated the expansion of democracy, some to moderate, others to radical, lengths, while conservatives sought to retard and curb it by traditional or new-model restraints on popular power. Both were advocates of liberty. As associated with democracy, however, the concept premised equality of rights and majority rule. It consisted not only in individual free exercise of “natural rights,” reinforced by constitutional guarantees, but also in the power of the people to govern with as little hindrance as possible; and reformers generally relied on the good sense of the people to keep individual freedom and popular sovereignty compatible. Conservatives feared the consequences of this marriage. The egalitarian and majoritarian conception of liberty threatened, in their opinion, the paramount rights, privileges, and interests upon which the order and well-being of the community depended. In order to secure the greatest aggregate liberty, they believed the state must deny the claims of some citizens, throw a mantle of protection around certain minorities, and maintain a discriminatory balance between the competing interests of the community. Property, according to the conservatives, was the principal value requiring protection from a democratic majority. Property being of different kinds and unequally distributed in society, these disparities should be reflected in the constitution of political power. Property and power must go together, conservatives said; otherwise, property will purchase power or power will ravage property. Reformers were equally solicitous of property—it was a necessary ingredient of “life, liberty and the pursuit of happiness”—but they felt it had nothing to fear from democracy in the United States, where property was, in fact, widely distributed and every man had an interest in its security. The idea of a fundamental antagonism between property and numbers belonged to the Old World, they said; it had no correspondence to American realities. Here a uniformly democratic government, one that reinforced the public will, was in perfect accord with the principles of liberty and property and made unnecessary those contrivances of balance and restraint that were the product of another age and continent.
Because these convention
