The Green Papers Commentary
 

WE THE PEOPLE
Who 'We' are and how 'We' got that way
(Part One)

Sunday, July 13, 2008

by Richard E. Berg-Andersson
TheGreenPapers.com Staff

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.--
PREAMBLE, United States Constitution [drafted 1787, in effect 1789]

Just who are these guys?... these 'People of the United States'?

It was (and remains) common for a Preamble- a "mission statement", if you will- to head a document such as a written Constitution for a sovereign political jurisdiction. Besides that which is quoted above as regards the Federal Constitution, the Constitutions of the several constituent States of the American Union certainly abound with them...

and the general thrust of those here in the United States have little changed over the years and decades, generations and centuries:

my own State of New Jersey started off its original Constitution- that rather swiftly penned in the wake of a decision taken by the Second Continental Congress, nearly two months before Independence was formally declared by that body, to advise the British colonies represented therein to frame new "State" governments to replace British colonial forms, where it might be deemed necessary and expedient- with a two-paragraph "declaration of independence" of its own, one in which- among other things- it charged that "George the Third, king of Great Britain, has refused protection to the good people of these colonies; and, by assenting to sundry acts of the British parliament, attempted to subject them to the absolute dominion of that body; and has also made war upon them, in the most cruel and unnatural manner, for no other cause, than asserting their just rights", but it closed with the following by way of Preamble:

We, the representatives of the colony of New Jersey, having been elected by all the counties, in the freest manner, and in congress assembled, have, after mature deliberations, agreed upon a set of charter rights and the form of a Constitution.

Interestingly, where not also ironically, those so "mature[ly] deliberat[ing]" on behalf of the Garden State approved the document on 2 July 1776, the very day on which- not all that far away on the other side of the mighty Delaware River, in Philadelphia, Pennsylvania- the Continental Congress itself was agreeing to endorse Independence (which is precisely why, as I noted in my Commentary immediately previous to this one, Massachusetts Bay delegate and future President John Adams honestly and most earnestly thought "[t]he Second Day of July 1776, will be the most memorable Epocha, in the History of America"), though the formal Declaration of that same Independence was still being considered by the Continental Congress (which is why John Adams ended up getting the actual date of said "memorable Epocha" wrong); in addition, the first New Jersey State Constitution was ordered to be published the next day, 3 July 1776 (while Adams was penning his exuberance over the formal adoption of the more well-known Declaration in a letter to his wife Abigail).

By 1844, however, New Jersey was seen to be in need of a new Constitution and this one would follow what one might fairly refer to as 'the usual formula' for such a Preamble:

We, the people of the State of New-Jersey, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, do ordain and establish this Constitution.

A little over a century later, in 1947, those who drafted the third (and still current [well... at least as of this typing... one never really knows here in 'Jersey' ;-)]) State Constitution kept the 1844 language intact (except, of course, for the removal of the hyphen within the State's own name [though, in truth, the hyphenizing of a name like 'New-Jersey'- a 19th Century affectation along the lines of spelling 'Base Ball' as two words- had been quietly dropped from official printed versions of the 1844 text well before the adoption of the 1947 document]).

My point here is that the Preamble to the U.S. Constitution is not, in and of itself, at all that unique, although- as can be seen even from the brief summary of my home State's constitutional history I have just provided above- it certainly proved to be influenced by earlier, as well as influential on later, Preamble verbiage as regards the several States! (Note, for instance, that "We the people of the State of New Jersey" also "do ordain and establish this Constitution" just as do "We the People of the United States").

John Adams was, in fact, the very person who introduced the resolution in the Continental Congress to which I referred earlier, one which "recommended to the respective Assemblies and Conventions of the United Colonies, where no Government sufficient to the exigencies of their affairs has been hitherto established, to adopt such Governments as shall in the opinion of the Representatives of the People best conduce to the happiness and safety of their Constituents in particular, and Americans in general".

This resolution was to be adopted unanimously on 10 May 1776 but then there was the idea that it should have- yes- a "preamble" (here one largely authored by Adams himself) and, thus, the Congress found itself wrangling over the actual wording of this preamble until, on 15 May, the resolution (this time with a preamble in the form of a long paragraph outlining the alleged wrongs of King in Parliament in relation to the colonies so represented [it was from this very preamble, by the way, that the New Jersey General Assembly- after having unceremoniously booted its Royal Governor (Benjamin Franklin's son William) out of office that June- would derive its own grievances written into the head of the State's first Constitution, as already noted earlier in this piece]) was re-adopted.. but, unlike the situation of but five days before, only by a vote of 6 States to 4.

A delegate from New York, John Duane (an opponent of the resolution with preamble, though he had supported the resolution alone), told John Adams he felt that the preamble made the resolution "a machine for the fabrication of Independence", to which Adams responded- with a smile- that, no, "I thought it was independence itself, but"- or so even he conceded- "we must have it with more formality yet". Adams (who seems to have had a penchant for expressing things in such superlatives) claimed, in a letter to his friend James Warren a few days later, that the adoption of this resolution was "the most important Revolution that ever was taken in America" (though historians still debate as to whether Adams had actually originally written "Resolution" and his own original sentiments were revised in retrospect as later events transpired to make the first version herein the more prescient in appearance).

Regardless: it is known that, later on in his life, Adams would express no little bitterness that the date (or, again, the one two days thereafter) he himself would call "the most memorable Epocha" (that is: what we Americans celebrate come the Fourth of July) got all the attention while all but forgotten was the date (or dates- for was it 10 May or 15 May?) of this earlier act (which, in many ways, was de facto Independence, as Adams himself claimed [though in contradistinction, or so it can fairly be argued, the colonies-become-States had to at least already be on the road towards establishing their own truly independent post-colonial governments, where this- again- might be necessary as well as expedient, by the time the assembly (at least ostensibly) representing them could then itself declare, as it soon enough did, "that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved" (to here quote the language of the resolution introduced in the Continental Congress by Virginia's Richard Henry Lee on 7 June 1776, the adoption of which on 2 July of that year led directly to the drafting and adoption of the Declaration of Independence itself)...

simply put: "these United Colonies"- in and of themselves- had to become independent States before the Continental Congress could likewise declare independence on a wider scale and, thereby, begin to entreat with foreign powers on their behalf in order to keep the American Revolution going on the diplomatic, as opposed to the military, front...

the War for American Independence may have accidentally broken out on Lexington, Mass. Green back in April 1775 with a shot fired by no one knows who, or even from which side, to this very day-- but American Independence itself (as much as something so revolutionary for its time could be so) was going to be "by the book"!])

As it turned out, 11 States out of the 13 "United Colonies" would find it necessary and expedient to frame new systems of government in the form of written Constitutions in the wake of the movement toward Independence (the two very notable exceptions were Connecticut and Rhode Island, so-called "Charter Colonies" which each found their Colonial Charters just fine, thank you very much, even without any "allegiance to the British Crown" [Connecticut would not adopt a written State Constitution per se until 1818; Rhode Island, meanwhile, would crush an attempt to force just such a thing on the State (Dorr's Rebellion of 1842) only to then give in and adopt a State Constitution a year later anyway]).

Two of these 11- New Hampshire and South Carolina- had actually gotten "head starts" on the others:

Massachusetts Bay (which John Adams represented as one of its five Delegates to the Second Continental Congress) had been trying to get the Continental Congress to allow for the colony to form its own government since the summer of 1775, following the Battle of Bunker Hill (the future Commonwealth of Massachusetts was especially concerned with formally legitimizing the de facto, in essence, "provisional government" it had in place since October 1774 when General Thomas Gage, the military Governor of the Province under the 'Intolerable Acts' adopted by Parliament the Spring before, had prorogued the duly elected General Court, after which that body went ahead and met as the 'Provincial Congress' anyway; but it didn't want to so formally set up a government if its sister colonies might consider such a thing a move toward an Independence the others were not at all ready to endorse); it was this that, at least in part, got John Adams interested, as well as fully involved, in the process that would eventually lead to his May 1776 resolution advising the colonies to frame new governments in the first place.

By October 1775, Massachusetts Bay had been joined by New Hampshire but the Continental Congress was not yet ready to call for the kind of general advisory it would eventually issue to the colonies the following May (as Adams himself put it, "the child was not yet weaned"). Interestingly, New Hampshire's problem- while, on the surface, rather similar to that in Massachusetts Bay (the colony being run by its colonial Assembly functioning as a de facto 'Provincial Congress') was, nonetheless, different enough to give the Continental Congress an excuse to, on 3 November 1775, give notice to the Granite State suggesting that it put forth a "full and free representation of the people" and "establish such a form of government as, in their judgment, will best produce the happiness of the people... during the continuance of the present dispute between Great Britain and the colonies" (the wording of that last phrase is rather significant, by the way: as a 'continuance of [a] dispute' [implying such a 'dispute' could, theoretically, be settled at any time] was quite far from a complete breach with the nascent British Empire!)

Massachusetts Bay, after all, was operating its de facto government in defiance of its de jure government in Boston (to be sure, the members of the Provincial Congress/General Court of Massachusetts made sure to stand for election in the town[ship]s throughout the countryside so as to be able to claim popular support for what they were doing, but this did nothing to at all change the fact that General Gage was still, if only by mere letter of an act of Parliament, the Province's military Governor [to be replaced as such by General William Howe on 10 October 1775] with Thomas Hutchinson [the pre-'Intolerable Acts' Royal Governor of the Province] as, if merely constitutionally, Deputy [hence, still civil] Governor [even though Hutchinson had, by then, already left for England, ostensibly solely to confer directly with King-in-Council; subsequent events would, soon enough, insure he would not be returning to Boston]).

However, in New Hampshire's case, its Royal Governor- John Wentworth- simply adjourned the colony's Assembly on 28 September 1775 and then took off for the seeming safety of Boston, leaving New Hampshire without a functional de jure government at all!

In other words: as regards New Hampshire (unlike that in Massachusetts Bay), the de jure government stole away much as the proverbial "thief in the night" and the colony's Assembly seems to have had no choice but to become the de facto government of the Province if only to just keep order: for, without a Governor-in-Council, the higher courts could not function, justice could not be administered and, in many cases, criminals could not even be prosecuted. New Hampshire's Assembly-become-'Provincial Congress', therefore, took the November 1775 notice of suggestion from the Continental Congress as outright leave to constitute itself as a rump convention for the purpose of drafting a Constitution, which it did in the town of Exeter on 21 December 1775. Just two weeks later, on 5 January 1776, it proclaimed just such a document and- in true Granite State "First in the Nation" style [;-)]- had, it turns out, crafted the first written Constitution (at least in the modern sense) in History.

What is interesting, insofar as this piece is concerned, is in whose name it was drafted, adopted and so proclaimed:

not the People per se but, instead, "the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony"-- in other words, representatives acting on behalf of the People!

South Carolina, on the other hand (and perhaps presaging her own later antebellum history- things such as the Nullification Controversy and being the first of what would become the short-lived Confederate States of America to formally secede from the Union [as well as take officially sanctioned action against the military facilities of that same Union in the firing on Fort Sumter that signalled the beginning of the Civil War]), did not even bother to wait for the Continental Congress to so suggest such a thing to it directly; to be fair, the Palmetto State had a problem similar to that of New Hampshire: for its Royal Governor, Lord William Campbell, had likewise adjourned its Assembly and unceremoniously left the Province (on 15 September 1775).

Under the terms under which it functioned as a Royal Province, South Carolina's Assembly- while, as was the case in all Royal Provinces, ever subject to dissolution by the Royal Governor- was not supposed to be out of session for more than six months at a time and, come mid-March 1776, there was still no de jure Royal Government in place to call it back into session, so the Assembly (as was already the case in Massachusetts Bay and New Hampshire) comported itself as a 'Provincial Congress' and, as "until an accommodation of the unhappy differences between Great Britain and America can be obtained, (an event which, though treated as rebels, we still earnestly desire,) some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony", come 26 March 1776, South Carolina had its own Constitution- "[t]he congress being vested with powers competent for the purpose... this congress being a full and free representation of the people of this colony" (note the use here of the very verbiage found in the Continental Congress's suggestion to New Hampshire of the previous November). Again, note that it was the People's representatives, and not the People themselves, in whose name this new fundamental charter of government had been adopted.

All but one of the remaining nine colonies (the one exception being, interestingly, Massachusetts Bay) that ended up drafting new State Constitutions (all eight of these, by the way, would be doing so after the adoption of John Adams' May 1776 resolution advising the colonies to so do) followed suit as regards the authority under which they would do so: it was Virginia's "delegates and representatives of the good people" who took credit for having done this on 29 June 1776 (Virginia, in addition, set a precedent by also providing its new Constitution with a specific Declaration of Rights [which neither New Hampshire nor South Carolina had done- all but Delaware, Georgia and New York would end up following Virginia's lead (New Hampshire would, however, adopt a Bill of Rights in 1778/1779 as it began to come up with a more permanent Constitution, a process that was not completed until 1784)]); New Jersey's "representatives... having been elected by all the counties, in the freest manner" of 2 July 1776 has already been noted earlier in this piece; Delaware cited its "Representatives in full Convention... chosen by the Freemen of the said State for that express purpose" (10 September 1776, proclaimed on 21 September); it was the "representatives of the freemen of Pennsylvania, in general convention met, for the express purpose of framing such a government" that adopted that State's first Constitution on 28 September 1776.

The two separate parts of Maryland's new Constitution (a Declaration of Rights modeled on Virginia's and a 'Form of Government or Constitution, etc.') were merely "assented to, and passed in Convention of the Delegates of the Province of Maryland" on 11 November 1776; "the Representatives of the Freemen of North Carolina, chosen and assembled in Congress, for the express purpose of forming a Constitution, under the authority of the people" did just that on 18 December 1776; for Georgia, it was "the representatives of the people, from whom all power originates, and for whose benefit all government is intended" who formally adopted its first Constitution on 5 February 1777; and New York, whose legislators moved frequently so as to stay at least one step ahead- and, therefore, out of the clutches- of the British Army (they finally ended up in the mid-Hudson River Valley town of Kingston), claimed to be able to do so come 20 April 1777 on grounds that "all power whatever... hath reverted to the people... and this convention, by their suffrages and free choice been appointed" to do just that.

What is interesting about all ten Constitutions adopted by those colonies that felt the need to do so in 1776 and on into 1777 is that, besides not being put forth as having been done by the People as an entity (as already seen, all ten plainly stated that the people's representatives- in other words, politicians- had composed them in the People's name), none were directly submitted to the People of these respective colonies-become-States for approval either. This is perhaps quite understandable in the context of what was, after all, a War for American Independence: in many of what were now claiming to be "free and independent" States, not all the population was much in favor of the separation from Great Britain (in quite a few cases, such sentiment was that of a decided minority); in addition, portions of many States were in British, not American, hands (Philadelphia. where the many resolutions leading, ultimately, to the Declaration of Independence had been adopted by the Continental Congress would itself be in British hands by the end of September 1777; as a result, the attempted first 'not quite so perfect' [;-)] Union- that under the Articles of Confederation- would finally be approved by the Continental Congress in the inland Pennsylvania town of York come 15 November of that year [though the British would evacuate Philadelphia by the end of the following June, allowing the first signatures of the Articles by delegates to the Continental Congress- signifying the adherence of the State said delegates represented thereto- to take place in Philadelphia in July of 1778]).

By the middle of 1778, however, having in place fundamental charters of government that had not been drafted, or even approved by, "the People" directly was not sitting all that well in a least a few of the newly free and independent States, for a Constitution was thought of- by many within the Patriot cause- to be something more than ordinary legislation-- something that required more than the kind of approval given to, say, a statute requiring licenses for certain trades and the like; in addition, a written Constitution would be most effective only if it required more than a mere vote of legislators to alter or abolish it. It was one thing to allow a State's legislators to so quickly adopt a Constitution on behalf of its People as a temporary measure in the immediate wake of Independence but, even with war still raging and- as yet- no real assurance that Independence would hold up against the mighty British juggernaut some two years later, a more permanent form of free and popular government seemed, even then, to call for something on an at least somewhat higher plane of authority- one more of the People themselves, as well as more directly so.

No, what was required in order to make a written Constitution truly one based on the Sovereignty of the People was to first be seen in a State that, as late as 1778, had yet to even adopt just such a Constitution- the very State in which the first shots of the American Revolution had themselves been fired three years earlier: what was still, officially, the Province of Massachusetts Bay.

to be continued...

[Part II -Ed.]

 


Commentary Home