While
it cannot be denied that the character and function of the writ and the statute
is in large part what defines the United States of America as a culture –
America, it has so often been said, is a nation of laws and not men – the vital
context that gives meaning to the acts of Congress, the Constitution, and their
state equivalents is the set of philosophical ideals upon which the country was
founded at the end of the 18th century. These principles, since the
First Continental Congress convened in Philadelphia in the waning months of
1774, have conditioned what was possible, acceptable, and sacred within the
political sphere of the union of American states, as well as what was
forbidden, illicit, or restricted. When statements of purpose and resolve were
called for, they served the function of explaining to all and sundry exactly
what it was the American experiment was supposed to be about. The Declaration
of Independence – a kind of 18th century press release intended to
announce and justify the secession of the Thirteen Colonies from the British
Empire – was exactly this kind of tangible invocation of the principles which define
the American model of republican self-government. Though it lacked the force of
law, the force of its words – and here we nod respectfully to Messrs.
Jefferson, Adams, Franklin, Sherman, and Livingston – have historically moved
countless men and women to champion, re-examine, and redefine the promises and
obligations at the heart of what it means to be American.
There
are times, however, when rhetoric is not enough. On occasion, the principles
upon which the United States was built – and more than once re-built – require
the weight of legal sanction in order to maintain their pride of place. The
codification of a bill of rights – attached to the United States Constitution
as well as to the respective state constitutions – represents the pinnacle of
this confluence of statute and principle. Because certain base moral values
cannot be subject to the vagaries of public opinion, it has so often been
concluded, they must be clearly defined and set above the authority of even the
people’s elected representatives. Thus, in Philadelphia in 1787 as well as in
nearly all of the thirteen original states at some point in the 1770s or 1780s,
men possessed of education, good sense, and the trust of their neighbors set
themselves to precisely clarifying the core values by which the acts and
intentions of all future governments would be measured. This was no easy task
even under the best of circumstances, and doubtless the effort often revealed a
great deal about what had formerly been the ill-defined and yet much-invoked
principles around which American republicanism revolve.
The
authors of the Northwest Ordinance, it would seem, were as sensible as any of
their countrymen had been – and would be – to the necessity of providing
clarification within a frame of government for the fundamental values to which
all subsequent law must conform. Section fourteen of the same document provides
clear evidence of this inclination. Divided into six articles, it laid out
precisely which rights and values Congress deemed it essential that the
government of the Northwest Territory adhere to. As with the inheritance and
franchise regulations discussed previously, however, the conclusion preserved
in the text masks the discussion which must have taken place between its
authors. After all, the framers of the Northwest Ordinance had been sent to
Congress to represent the interests of the various states from which they hailed.
And each of these states possessed their own political traditions and legal
customs which collectively conditioned the kinds of laws their respective
legislatures were inclined to pass. In order to eliminate any possibility of
confusion or abuse, these core values were often codified as declarations or
statements of rights and integrated into the relevant state constitution. Thus,
while Virginia and Massachusetts and Pennsylvania could all be said to have
agreed as of the late 1780s that certain principles were wholly inviolable,
they did not always agree on exactly which principles enjoyed such hallowed
status.
In the normal course of the business of
Congress, disagreements of this nature likely mattered very little. The
national government of the United States did not concern itself with defining
or protecting the domestic rights of the people it claimed to represented,
preferring instead to leave that to the states themselves. The Northwest
Ordinance, however, because it aimed to create a state-like government under
the authority of Congress, surely demanded that its authors confront the
differences they respectively nurtured as to which rights or principles
required the strongest protections. Americans, as the late war with Britain and
the form taken by many of the various state constitutions made clear, would not
tolerate living under the auspices of any government that failed to recognize
the inalienable rights that they collectively recognized as their birthright.
The Northwest Territory therefore required some kind of declaration of rights,
just as it required a formula for determining who among its residents could
vote in legislative elections. This was certainly easier said than done,
however, as the states provided example, inspiration, and warning in equal
measure.
Brace
yourself.
Ahem…
Consider,
for instance, the constitution of Massachusetts. Written and adopted in 1780,
its first section is properly referred to the “Declaration of the Rights of the
Inhabitants of Massachusetts.” This introductory portion of the Bay State’s
first and only republican frame of government contains thirty separate articles
which variously concern themselves with protecting religious freedom,
guaranteeing public support for religious worship and education, prohibiting
the state from granting hereditary titles, providing that taxes will only be
levied by the elected representatives of the people, and declaring
unequivocally that the powers specifically allotted to the various branches of
government shall not be exercised by any authority other than that which is
explicitly stated. While such thorough attention to detail is certainly
laudable, doubtless observers from other states might have questioned whether
every right or guarantee named was entirely necessary. Freedom of religion, for
example, was absolutely a principle upon which a robust positive consensus
existed in late 1780s America. The provisions of Article III of the
Massachusetts Declaration of Rights that provided for the public subsidization
of religious worship and schooling, however, would no doubt have struck
residents of states like New York or Virginia as overly specific. While publicly-funded
primary schools – administered, naturally, by the local religious authority –
was a cherished practice in Calvinist New England and would surely have seemed
worth preserving to the framers of Massachusetts’ first constitution, many
other states preferred to leave early education to individual families or
private institutions.
Georgia
presents a possible exception. Though its 1777 constitution did not possess an
explicitly-labelled declaration of rights, a set of articles near the conclusion
of the document do seem to speak to many of the same principles as the section
of the Massachusetts constitution discussed above. More to the point, one of
these articles – the fifty-fourth, in point of fact – stated that, “Schools
shall be erected in each county, and supported at the general expense of the
State, as the legislature shall hereafter point out.” Lacking the ingrained
association between learning and religion that was common to New England, this
provision of Georgia’s inaugural constitution nevertheless made clear the
intention of the framers thereof – in common with their Massachusetts
counterparts – to make state-funded education a matter of the highest legal
significance. While Georgia and Massachusetts may have been alone among their
sister-states in this shared conviction, it remains noteworthy all the same
that at least two of the jurisdictions represented in the United States
Congress in 1787 – the body responsible for drafting the Northwest Ordinance
and the time of its publication – held that public education was rightfully a
constitutional guarantee.
Compared
to the Massachusetts Declaration of Rights, the equivalent passage of
Pennsylvania’s 1776 constitution is only half as long, at sixteen articles, and
tended more towards concision than meticulousness. While both documents made a
point of securing the rights of their respective subjects to alter or abolish
their government, hold their elected representatives to account, expect taxes
to be levied only by the relevant legislative assembly, and freely assemble to
petition their government for a redress of grievances, Pennsylvania’s
Declaration of Rights omitted much of the clarifying or emphasizing language
found in its Massachusetts counterpart. It also made no mention of providing
public funding for primary religious education – for reasons explained above –
and included a number of guarantees not found in the latter document. Article
III, for example, decreed, “That the people of this State have the sole,
exclusive and inherent right of governing and regulating the internal police of
the same.” Considering the practical non-existence of civilian police forces in
the late-18th century Anglo-American world, this particular clause
appears rather novel. Without being able to say for certain what its genesis
might have been, it’s possible that the “internal police” of the state of
Pennsylvania was simply meant to refer to the general peace and order therein.
Thus, by claiming that the people of the Keystone state had the right to police
themselves, the framers of the 1776 constitution may have intended merely to
affirm that they and their fellow citizens were answerable to no authority but
that which they themselves appointed.
It’s worth noting that the 1776
constitutions of Maryland and North Carolina both contain very similar clauses
in their respective declarations of rights. In fact, both documents state, word
for word, “That the people of this State ought to have the sole and exclusive
right of regulating the internal government and police thereof.” The addition
of the word “government” to this formula may have been highly significant at
the time it was originally rendered, or it may have been a mere matter of style
or rhythm. It is, again, very hard to say, owing mainly to the fact that the
phrase “regulating the internal police (and/or government)” is quite vague.
What can be said, at the very least, is that some states, like Pennsylvania,
North Carolina, and Maryland felt that such a statement was important enough to
include in their respective constitutions, while others, like Massachusetts,
New Jersey, and South Carolina did not. While this may not appear to have been
a terribly significant disagreement, the base intention of codifying this
seemingly self-evident sentiment was doubtless far from trivial.
Like as not, those states which
chose to adopt some variation on the “internal police” clause believed that
without it, there may have remained some doubt as to the relationship between
themselves and whatever higher authority they either chose to recognize or
attempted to impose itself. Bearing in mind that many of the first American
state constitutions were written at the height of the Revolutionary War, when
the reestablishment of British authority – by force or by settlement – remained
a distinct possibility, it perhaps seemed a wise precaution to ensure that the
sovereignty of the American people receive clear and inviolable protection
against future encroachment. By the same token, of course, in the event of an
American victory, these same protections would have surely proven equally
valuable in frustrating any potential expansion of the power of the fledgling
national government. States that chose not to guarantee the regulation of
“internal police” to their citizens perhaps did not fear either eventuality – a
resumption of British control or the emergence of a centralizing Congress – or
otherwise believed that the powers and protections they respectively possessed
were security enough against any threatened loss of sovereignty.
In addition to those states which disagreed on the inclusion
or exclusion of certain specific phrases or concepts within their codified
declarations or statements of rights, there were yet other states whose
constitutions entirely omitted any such inventory of first principles. The
first post-independence governing charters of New Hampshire (1776), New Jersey
(1776), New York (1777), and Delaware (1776) fell into this category, possibly demonstrating
that some sizable percentage of the late-18th century American
population were not wholly convinced of the efficacy of integrating a
declaration of rights into their respective state constitutions. Lacking
specific knowledge thereof, it at least seems possible that this sentiment
arose from a similar set of concerns to those which would later act against the
addition of a national Bill of Rights to the United States Constitution
following its adoption in 1788. By unequivocally stating, critics of the idea
then asserted, that certain specific rights were protected against the authority
of the national government, it was accordingly implied that said government
otherwise possessed the power to encroach upon aspects of American life which
the plain text of the Constitution did not clearly name. That is to say, it was
felt that the inclusion of a set of explicit prohibitions within the text of
the Constitution would only begin a conversation about which powers the
national government plainly possessed and which powers the specific provisions
of the Bill of Rights implied it possessed.
Rather than empower
the United States government to invade areas of administration and enforcement
that were never intended to fall within its remit, opponents of the adoption of
a Bill of Rights preferred to simply leave the Constitution as it was. The national
government would function solely according to the text that the states had
ratified, lacking the justification to do otherwise, and the rights of the
people would remain safe and secure by default. Considering that some portion
of the people who helped draft the constitutions of New Hampshire, New York,
New Jersey, and Delaware were still alive in 1788 when this argument was being
floated, it seems entirely possible that the lack of any declaration of rights
in the constitutions of these states came from the same source as the case
against attaching a Bill of Rights to their federal counterpart. Just as
certain men maintained in 1788 that delimiting the rights of a sovereign people
presented a dangerous opportunity for government to assume powers it might not
otherwise have enjoyed, the same desired end result – the omission of an
explicit declaration of rights – came to pass in a number of states over a
decade prior. Coincidence, it may have been. Still, the fact remains that the
necessity of an unequivocal declaration of rights as an integral part of a
viable governing charter remained a matter of debate in the United States at
least as late as 1787/1788.
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