On January 5th 1776, days before the first editions of Common Sense were published in Philadelphia, something surprising happened in colonial New Hampshire. The local assembly there declared its independence from Great Britain and enacted the first American constitution. This was due, in some part, to necessity – the New Hampshire governor John Wentworth had been forced to leave in 1775 and now, without a governor, there was confusion about who held executive and legislative authority. In drafting this new constitution the New Hampshire politicians reflected on decades of conflict with governors, and placed supreme power in the hands of the legislature (there was no governor or president, no independent judiciary and no bill of rights; sovereign power was placed in the hands of a legislature which was to be popularly elected every year). Though this constitution was simplistic and would ultimately fail, it lasted for the duration of the Revolutionary War. More importantly, it provided a precedent for future constitutions, both state and federal, even though it preceded the Declaration of Independence by six months.
Inspired by New Hampshire’s example and frustrated by the continuation of the war, other states began to follow suit. On March 26th, South Carolina became the second province to pass a state constitution. In May 1776 the second Continental Congress authorised all colonies to establish their own provincial or state governments. This opened a floodgate for constitutional drafting and legislation. Virginia passed its own state constitution on June 29th, followed by New Jersey (July 2nd), Delaware (September 21st), Pennsylvania (September 28th), Maryland (November 11th) and North Carolina (December 18th). Georgia followed suit on February 5th 1777, followed by New York on April 20th. Vermont, originally part of New York, passed its own state constitution on July 8th.
Although these constitutions contained many innovations, they also incorporated inequitable aspects of the new society. All state constitutions, bar those of New York and Virginia, determined that only Protestants could hold public office. Many of the state constitutions also placed property qualifications on the franchise (in other words, only those who owned a minimum amount of property were entitled to vote). Perhaps unsurprisingly, women, slaves and natives were also excluded from voting. And some states required elected officials and assemblymen to possess significant amounts of property before they could stand from office. There were other undemocratic features of these new constitutions. In Maryland, where conservatives held sway in the assembly, there was no secret ballot: voting was to be conducted by voice and in public, leaving voters open to pressure and intimidation.
A historian’s view:
“Congressional delegates viewed state government formation as both a cause and an effect of revolution. Leaders like John Adams saw the creation of state governments as de facto state declarations of independence: the mere existence of independent state governments would sever American ties to Great Britain. But urgency about the need for government increased when royal authority collapsed after Lexington and Concord. Provincial congresses and conventions filled the governmental breach left by departing royal officials, but because [these were] temporary, extra-legal expedients, they hastened to establish regular governments to secure civil order and foster independence.”
Marc W. Kruman
Pennsylvania enacted perhaps the most democratic constitution of the time. There was no governor, just a one-house legislature; this assembly was formed by annual elections and individuals were prevented from serving more than four years out of every seven. Elections were held by secret ballot and all free men over the age of 21 could vote, provided they paid some form of tax. Laws passed by the legislature could not be enacted until one year after they had been made available for public reading. The aim of this constitution was to allow a continually revolving legislature where incompetent or underperforming politicians could be easily removed, as well as maximising public participation in decision-making. Despite its idealism, the Pennsylvania constitution was criticised by within the state and throughout America, mainly by business interests who hated the instability and inflexibility it created.