Draft Constitution for Virginia, Part II: Continuity

Before immediately diving into an examination of Thomas Jefferson’s draft of a new state charter for Virginia, a word or two about the significance of written constitutions. As discussed previously, the importance that Revolutionary Americans attached to the notion of clearly and explicitly codifying their paramount laws marked them as somewhat unusual in the context of the 18^th century. There were, as of 1776, no countries in existence that possessed written constitutions. Great Britain, for better or worse the state that exerted perhaps the greatest influence on American culture, philosophy, and politics, was in fact possessed of a famously unwritten constitution – said to encompass all of the statutes then in force from the Magna Carta (1215) to the Bill of Rights (1689). There were certainly a handful of specific documents that carried particular weight, whose written clauses were referenced time and again over the course of Britain’s at-times tumultuous political history (the two aforementioned chief among them). Nevertheless, the notion of drafting a set of fundamental laws, in fact a framework of government, was most definitely not a part of the Founder’s British cultural heritage. Nor was it a function of their common regard for, and knowledge of, classical antiquity. Though elements clearly derived from the unwritten constitution of the Roman Republic found their way into the governing charters of many states, the manner in which the government of Ancient Rome functioned was more a consequence of accumulated custom and precedent than any clear and consensual administrative plan. Though the influence of classicism, and in particular classical republicanism, undeniably shaped the political sensibilities of Revolutionary Americans, their determination to provide a tangible foundation for the political life of the nascent United States is best traced to another source.

Indeed, the most likely inspiration for 18^th century American constitutionalism would seem to be the colonial charters by which the original Thirteen Colonies were governed. Unlike their British brethren, who lived and worked under the auspices of a government defined mainly by tradition and precedent, colonial Americans had grown accustomed to, and even came to depend on, the written charters that framed their respective governments. Said charters had varied origins, and very different compositions, but all served to provide a clear and relatively unambiguous legal framework by which, say, Massachusetts, or New York, or Georgia, were administered. Several incidents that pre-date the Revolution speak to the importance colonial inhabitants consequently attached to these documents. In 1686, when the government of James II (1633-1701) attempted to combine several colonies along the eastern seaboard of North America into the so-called Dominion of New England, the newly-appointed governor of the amalgamated polity, Sir Edmund Andros (1637-1714), set about collecting the various colonial charters which he felt were no longer in force. When Andros arrived in Hartford, in the Connecticut Colony, and demanded that the colony’s 1662 charter be turned over, the document is said to have been spirited away and hidden in the hollow of a venerable old Oak tree by one Joseph Wadsworth. The tree in question subsequently became known as the Charter Oak (whose remains, once felled by a storm in 1857, were used to construct the desk of the Governor of Connecticut). Whether this story represents a faithful account or a something more like a folk legend is arguably immaterial. The citizens of Connecticut believed it to be true, and celebrated the defiance of royal authority that the tale embodied. This speaks to the value they in turn attached to the charter itself and the need their perceived to protect it from unilateral abrogation.

A similar, though more recent, incident likewise speaks to the common perception of importance that the American colonial charters possessed. When, in 1773, members of the Massachusetts-based Sons of Liberty engaged in an act of civil protest by absconding with and destroying East India Company tea, the British Parliament reacted by passing a series of punitive legislation that became known as the Intolerable Acts. Among these draconian measures was the Massachusetts Government Act (1774), the substance of which effectively stripped the colony of its 1691 charter and placed it under the near-total authority General Thomas Gage (1719-1787). Contemporary British thinking was that the existing government of the Province of Massachusetts Bay was no longer tenable amidst a climate of simmering insurrection because it gave far too much freedom to local government – thus why the practice of holding town meetings, long a staple of Massachusetts political life, was severely curtailed. Colonial residents were understandably alarmed by this unambiguous abrogation of their accustomed form of government, and reacted by declaring the contract between themselves and the Crown null and void and further establishing an alternative legislature to govern all areas outside of Gage’s control. Worth noting in this instance is the manner in which the people of Massachusetts perceived their governing charter as compared to the way Parliament understood its significance.

 If Gage’s appointment was any indication, the British ministers responsible for the Massachusetts Government Act believed that the colony remained under the authority of the Crown regardless of the status of its written charter. To them, it seemed, the charter was not what tied Massachusetts to Britain, but rather served as the codification of something which was somehow fundamental or transcendent. Those responsible for the creation of the Massachusetts Provincial Congress, which governed the colony until the adoption of a state constitution in 1780, conversely seemed to take the view that their colony’s charter was itself the instrument of union between Massachusetts and the Crown. By nullifying it, rather than modifying its contents or providing for an appropriate replacement, they held that Parliament had consequently nullified any formal connection between the colony and its mother country. As with the story of Connecticut’s Charter Oak, this incident speaks to the significance colonial Americans attached to the physicality of their fundamental laws. A constitution was to them not merely an ill-defined collection of statutes and traditions, but a tangible, codified compendium of rights and privileges, rules and regulations. Doubtless this attachment to written charters combined with a regard for the great documents of state that formed the British Constitution to produce a people that, by 1776, had become comfortable with locating and defining their rights and their laws in a written form.

Keeping this characteristic in mind, whereby colonial Americans possessed strong attachments to the written charters under which they were governed, it should perhaps come as little surprise that Jefferson’s 1776 draft constitution for Virginia contains several elements that appear to have been lifted directly from that colony’s own charter. Some of these elements were little more than aesthetic. The name that Jefferson suggested in his draft for the legislature, composed of an upper and lower house, for instance, was the “General Assembly of Virginia.” The Company ordinance that established representative government in the colony in 1619 applied the same name to the combined House of Burgesses and Council of State. Though in practice they two were very different entities, operating under different rules and performing subtly different functions, the use of the accustomed name in 1776 seems to imply at least an attempt to promote a sense of continuity. This appears particularly likely given how much other aspects of Jefferson’s proposal diverged from the existing colonial government. Perhaps in an attempt to ease public reception of the many (and at times radical) changes to their governing charter he deemed necessary, the Sage of Monticello determined that some degree of familiarity was called for. Then again, maybe Jefferson simply felt, for the same reasons as the Company directors in 1619, that the “General Assembly of Virginia” was as apt, attractive, or merely practical name for the legislative branch of government. This possibility carries a connotation of its own, that Jefferson was not interested in innovating simply for the sake of innovation. Though a radical thinker in more ways than one, he was at once no enemy of pragmatism; if the status quo appeared to suit his needs, he was not one to offer change for no other reason than to put his stamp on things.

This rational approach perhaps also guided Jefferson’s adoption of a bicameral legislative model for his draft constitution. As aforementioned, the General Assembly he proposed contained two distinct bodies, a House of Representatives and a Senate. Each possessed a different membership, were elected by different means, held their members to different terms in office, and enjoyed different responsibilities. The colonial charter of 1619 outlined a similar set of provisions for the House of Burgesses and the Council of State, with Jefferson’s revisions mainly introducing stronger democratic procedures into the arrangement. The Council of State, for example, was a solely appointed body whose members were chosen by the directors of the Virginia Company (or after 1624, the British monarch). Their purpose, as the charter described it, was to, “Chiefly be assisting, with their care, advice, and circumspection, to the said governor [.]” Though this would seem to paint the Council as a mainly advisory body, the charter also declared that, as a component of the General Assembly, the councillors were also expected to engage in a process whereby, “All matters shall be decided, determined, and ordered by the greater part of the voices then present [.]” This would appear to indicate that the Council of State was intended to possess a deliberative character as well, similar to a legislative body. 

Jefferson’s proposed Senate – his upper house in the General Assembly – was conversely to be appointed by the members of the House of Representatives, and was to possess the power to, “Originate and amend bills [.]” Granted, it may not seem as though shifting the appointment of the upper house from one body to another while keeping the popular voice effectively sidelined smacks of democracy. Nevertheless, the logic behind Jefferson’s method of selecting Senators at least introduced a modicum of popular input where none had existed before. The people of Virginia may not have been able to directly elect Senators under the scheme he proposed, but at the very least they elected the people that appointed them in turn. Under the 1619 charter, modified in 1624, appointment of councillors was left first to the distant, unelected, and likely ill-known directors of the Virginia Company, and thereafter to the equally distant reigning monarch. In a similar move toward greater popular accountability, Jefferson also mandated in his draft constitution that only the House of Representatives possessed the power to propose and modify, “Bills for the levying of money.” This is a practice common to many modern forms of Westminster-style bicameralism (as in the Parliaments of Canada and the United Kingdom, for example), but which was lacking from Virginia’s 1619 charter. Indeed, said document made no mention of any differences that might have existed between the respective powers of the House of Burgesses and the Council of State, save that the latter was to closely advise the Governor.

By placing the exclusive right of determining appropriations in the hands of the popularly elected lower house, Jefferson doubtless intended to ensure that the connection between the citizens of Virginia and the body that was responsible for spending their money was clear and unambiguous. This likely indicates, among other things, that he was dissatisfied with the distribution of legislative responsibility under the existing charter government, and also that he believed his fellow Virginians would not object to a slight augmentation of lower house authority at the expense of the upper house. Much the same could be said of his aforementioned determination to replace the Crown-appointed Council of State with a somewhat more accountable Senate. Admittedly, this latter change could be quite logically chalked up to a simple acknowledgement of the changing status quo; separated from Virginia, the British monarch would no longer be in a position to appoint members of the upper house. That being said, Jefferson could have just as easily shifted appointment power to the office of Governor (the occupant of which customarily consulted with the Crown on appointments to the Council). The fact that he instead decided that members of the Senate were to be chosen by the popularly elected representatives of the people of Virginia again indicates his desire to establish a clearer line of accountability between governors and governed under his proposed state constitution than existed under the colonial charter.

For all his innovations, however, it is noteworthy that Jefferson chose to maintain the bicameral character of the General Assembly of Virginia that the charter government first established. In spite of how common bicameralism is in the modern context, particularly in the United States of America, it was certainly not the only form he could have chosen for the legislature of his home state. The contemporary Constitution of Pennsylvania, written in part by Benjamin Franklin, vested legislative authority in a popularly elected unicameral assembly rather than divide responsibility between two different bodies. This was certainly an uncommon choice among the original thirteen states – indeed, no other among them followed Pennsylvania’s example. Nevertheless, the fact that it occurred to some 18^th century Americans that unicameralism was an option indicates that Jefferson indeed made a choice when he drafted a bicameral constitution for Virginia. The logic behind this choice was likely practical as well as philosophical.

The essential rationale behind bicameralism is that it introduces an element of balance to the legislative process. Rather than rely on the deliberations of a single body of lawmakers to debate and set policy – a body in which all members were elected by the same means and could be said to possess at least a broadly similar perspective – a bicameral assembly harnesses the views of two bodies of different composition in order to (in theory) fuse some of the ambitions of group A with the concerns of group B. If the approval of both chambers is required for any and all legislation to pass into law, moderation becomes (again, in theory) the guiding principle if either group A or group B wishes to accomplish anything of substance. While bicameralism was not a significant feature of the ancient republics that so many among the Founding Generation studied and venerated, the concept of balanced government certainly was. The unwritten constitution of the Roman Republic, convoluted though it was, represented an attempt by the political classes to play the opposing interests of existing social orders against each other as a means of ensuring no one faction within the republic could dominate any other. Regardless of how successful (or not) this strategy proved in the long run, the basic notion of balanced government was an aspect of classical republicanism that 18^th century reformers and Enlightenment devotees heartily grasped and frequently promoted.

It is a matter of debate whether it was a desire for administrative equilibrium that in 1619 motivated the directors of the Virginia Company to erect a bicameral structure in the North American colony in their charge. Likely as not it was simply a practical expedient; a popularly elected assembly was attractive to potential settlers, while an appointed council provided a degree of Company oversight. That being said, the result represents an admirable model of balance in government, fusing the needs of the actual residents of Virginia with the concerns of the stockholders whose private enterprise they were taking part in. When the Crown took over administration of Virginia after 1624 this balance was preserved by simply slotting the monarchy into the space previously occupied by the Company and its officers. Jefferson’s proposal in 1776 entailed essentially continuing the established legislative structure while substituting yet another interest in place of the Crown. He attempted to ensure the viability of such a measure by clearly differentiating between the upper and lower houses in terms of how their members were chosen and how long they served in office. Representatives were to be elected yearly by the voting public, ensuring that they had always to consider the needs of their constituents lest they promptly and summarily be given the electoral boot. Senators were conversely to be appointed by the lower house for three year terms. This effectively served to separate them from the popular will and promote long-term thinking (planning three years ahead instead of one year ahead). While this arrangement was certainly more democratic and more transparent than that which existed under Virginia’s colonial charter government – substituting the concerns of actual residents whose powers were clearly circumscribed for the desires of absentee stockholders and hereditary sovereigns whose authority was often rather ill-defined – the fundamental logic behind it was essentially unchanged.