John Trumbull's painting depicting the five-man drafting committee of the Declaration of Independence presenting their work to the Congress Credit - Getty Images
The most remarkable features of the state constitutions that sprang to life in 1776 like so many daffodils up and down the continent were certain overarching elements that are now so commonplace that we forget how truly revolutionary they were back then: writtenness, concision, replicability, rights declaration, democratic pedigree, republican structure, and amendability. Never before in history had this particular combination of features come together. After 1776, this cluster would sweep across the continent and, eventually, across much of the modern world.
The history of the world before 1776 was a history of “accident and force.” Most people in most places were ruled by brute power or by old customs that the populace had never formally consented to in any self-conscious moment of collective choice. Very few advanced societies in or before 1776 could be described as self-governing. The history of the world was a history of emperors, kings, princes, dukes, czars, sultans, mogul lords, tribal chieftains, and the like. Among advanced civilizations, even those few societies that were moderately self-governing never had anything like a 1776-style written constitution.
In many places—including eighteenth-century Britain—the fundamental rules and norms governing the system had never been reduced to a single comprehensive text, much less a relatively short and readable one that had been democratically approved in some manner and made generally available to members of society. Mastering the vaunted British Constitution required long years of close study of many sources, including a slew of important judicial opinions in scattered reports, a library of learned treatises, a host of statutory enactments, and a plethora of administrative and procedural arcana. Many of the individual items in this hodgepodge were written in thick and ponderous English, if written in English at all (as distinct from Latin or law-French). Much of this unwritten Constitution had deep roots in hereditary political powers of kings and noblemen.
Ancient democracies at times claimed written constitutions, Athens most famously. But the best known version of the ancient Athenian Constitution was written by one man (Solon, the lawgiver); was never voted upon after its announcement; and was proclaimed (by the lawgiver) to be unamendable for a hundred years. In ancient Sparta, the lawgiver Lycurgus had contrived to make his constitution permanently unamendable.
In 1776, state after state, building on each other in self-conscious conversational fashion, introduced the world to an entirely different constitutional model. Representatives, plausibly claiming democratic authority based on at least one actual if imperfect set of elections, composed and promulgated a short composite set of basic rules, expressed in ordinary language, easily publishable in the state’s newspapers, and easily republishable elsewhere for edification and emulation. This document, an American-style constitution, would typically identify fundamental rights and map out the basic schema of governmental power. The schema might well privilege property, including property in slaves, and might also exalt native white men over all others, but did not in any other way confer political authority based on hereditary birth status. Whether or not these short documents explicitly said so, and even if they seemed to say otherwise, these texts quickly came to be understood as generally amendable at any time by a broad popular majority.
America’s first generation of state constitutions was designed for newspapers and for those who read them—not just lawyers and not just locals. Virginia took the lead in 1776, issuing a new and influential constitution at the end of June. The newborn state began with a “Declaration of Rights” that were, textually if not necessarily philosophically, prior to the rules creating government institutions. Even before the Declaration of Rights was finalized, Americans were talking about it, and not just in Virginia.
On June 1, the Virginia Gazette in Williamsburg published a committee draft of the document, which had been spearheaded by planter George Mason. Here is how it opened: “All men are born equally free and independent, and have certain inherent natural rights,…among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Over the next week and a half, this draft made its way to Philadelphia, where it appeared in at least four newspapers—the Pennsylvania Evening Post, the Pennsylvania Ledger, the Pennsylvania Journal, and the Pennsylvania Gazette. The draft’s opening language thus came to the attention of congressmen working on an early version of the Declaration of Independence. Echoes of Mason’s draft reverberated in what is today the Declaration’s most memorable line: “All Men are created equal [and] are endowed by their Creator with certain unalienable Rights,…among [which] are Life, Liberty, and the pursuit of Happiness.”
Excerpted from The Words That Made Us: America’s Constitutional Conversation, 1760-1840 by Akhil Reed Amar, available now from Basic Books.