WE THE PEOPLE
Who 'We' are and how 'We' got that way
Tuesday, July 15, 2008
by Richard E. Berg-Andersson
Come the morning of 5 March 1776, the British troops and their commanders garrisoned within the Town of Boston located at the end of that Shawmut Peninsula jutting out into the Harbor leading out to Massachusetts Bay were greeted with an ominous prospect: there, on Dorchester Heights (now Telegraph Hill in Boston's South Boston- "Southie"- neighborhood), were 43 cannon and 16 mortars defended by a swiftly-thrown up breastworks, the end result of a Continental force led by General John Thomas having taken control of the Heights the night before.
The artillery atop the Heights was actually British- the chief prize gained through the fall of Fort Ticonderoga in the upstate New York wilderness south of Lake Champlain back on 10 May 1775, the result of that famous mission led by General Benedict Arnold (before his name would become synonymous with the very word "Traitor" not all that many years thereafter) and Ethan Allen's 'Green Mountain Boys' from that area claimed by New York, a claim disputed by its local inhabitants (including Allen and his men), which would- soon enough- become known as 'Vermont'. Allen himself reputedly ordered the fort be surrendered by its British commander "in the name of the great God Jehovah and the Continental Congress" (though the account that Allen simply said, as the commander was so unceremoniously roused from sleep, "Come on out, you old rat!" is the far more believable: for the Continental Congress [the Second of which- that which plays a large role in the story within this very set of Commentaries as laid out in Part One of the series and which was convening for the first time, coincidentally, on that very same day- was doing nothing at all which could conceivably antagonize one of the more important colonies, New York, represented therein by even deigning to seriously address the Green Mountainers' complaints. No matter, if only for the time being, however: as the Green Mountainers were decidedly as anti-Redcoat as they might have been anti-[New]"Yorker").
Then, in what simply has to be one of the more "ripping yarns" coming out of the War for American Independence (one certainly at least nearly as "ripping" as Washington's more well-known Crossing the Delaware soon enough to come), Colonel Henry Knox (who would later become the first Secretary of War- essentially, what is today's Secretary of Defense- under President George Washington) led a contingent that- in the dead of winter, no less!- dragged all of Ticonderoga's artillery down through the Vermont wilderness, across the mighty Connecticut River, then along that New England coaching road known as "the Great Road" (more or less-- actually, thanks to modern highway construction and straightening bypasses, admittedly somewhat less than more-- today's State Highway 119 in both New Hampshire and Massachusetts and then Massachusetts' Route 2A) which- as Knox's men got closer to Cambridge, Mass., headquarters of General George Washington's Continental Army- traversed the very same "Battle Road" along which the "embattled Patriot farmers" (to here borrow Emerson's words) of the Province's Middlesex County fired on the retreating British in the aftermath of the Battles of Lexington and Concord less than a year before.
On 24 January 1776, Knox formally presented his "haul" to General Washington and the question was now: what to do with it?-- the answer turned out to be 'seize the Heights overlooking Boston Harbor, place these large guns atop it and see what the British (essentially under siege in Boston since the Battle of Bunker Hill the previous June) themselves then do about it'.
The first instinct of General William Howe, the military commander in Boston and, in essence, the last vestige of supreme Royal governance in the Province of Massachusetts Bay, was to take back the Heights-- but the effort was, at best, half-hearted (the British had paid most dearly in casualties for their victory at Bunker Hill and Howe wanted no repeat of same). Having so failed to remove the offending cannon, Howe decided that the most prudential course was to simply evacuate Boston (the American colonists, meanwhile, had little- if anything- which could actually be fired by their artillery-- but the British didn't know that!) and so, over a ten day period from 7 through 17 March of '76, the British troops were, in orderly fashion, ferried to men o' war anchored in Massachusetts Bay.
Then, on 26 March 1776 (coincidentally, the very day that South Carolina became the second colony-become-State to adopt its own Constitution after New Hampshire), His Majesty's troop ships raised anchor and sailed off- bound for Halifax, Nova Scotia (a Royal Province which, although invited to send delegates to the First Continental Congress which had met in September 1774, had demurred and, thereby, remained loyal to the British Crown [loyalty, by the way, which is one of the main reasons why we have two continental Nation-States descended from the British Empire- Canada and the United States- and not just one]: the Nova Scotians looked over at what their neighbors in Massachusetts Bay [yes, the two Provinces were neighbors- today's Maine was then part of Massachusetts, while today's New Brunswick was part of Nova Scotia] were doing and probably thought they were all just "plumb crazy" [Nova Scotia was the one-time home of the French-speaking Acadians (ancestors to, among others, Louisiana's "Cajuns") expelled by the British during the French and Indian War only a little over a decade and a half before: Nova Scotia's English-speaking population, therefore, still greatly depended upon Royal largesse-- or at least felt they needed to so depend]).
Obviously, Howe did not intend the abandonment of Massachusetts Bay Province to be at all permanent (although that is what, in the end, would transpire) but, whatever the as yet unseen future might actually hold for the very colony that had actually sparked the American Revolution, its government was- as of late March 1776- now in pretty much the same position in which New Hampshire and South Carolina had already found themselves: a popularly elected legislature without a true de jure executive (going all the way back to November 1774, Massachusetts Bay's General Court-become-Provincial Congress had created a "Committee of Safety" to act as something of a policy-making administrative board [the closest thing they could come to an executive without completely wiping out the Province's pre-'Intolerable Acts' system of government] whenever the Provincial Congress was out of session)... also keep in mind that, in the British governmental system of the time now inherited by what would soon be declared "free and independent States", the "executive" also included what one would call the Superior Judiciary (that being: courts of General Trial Jurisdiction and any and all Appellate forums; meanwhile, lower "minor courts" of limited jurisdiction and/or so-called "summary courts" were generally available at the local [county and/or town(ship)] level, even where the executive might be lacking).
Put another way: as of 20 March 1776 (the day the Continental Army entered Boston and, therefore, the very first day that civil post-colonial government could even operate out of the Province's chief city), the Province of Massachusetts Bay also needed its own new Constitution. What resulted from this realization was a rather convoluted, time-consuming process that would not only revolutionize the process of Constitution-making itself (and, therefore, come to influence those who would met in Philadelphia in the Summer of 1787 as "Framers" of what would become the United States Constitution) but would also begin the process of changing the very definition of just who "We, the People" actually were-- and, indeed, are!
At first, or so it appears, Massachusetts Bay was prepared to simply follow the lead of New Hampshire and South Carolina and enact its new Constitution by mere legislative fiat (after all, there was no other Province-wide governing entity now other than the General Court/Provincial Congress itself). The problem, however, was in the very origins of the General Court itself, for all its legislative powers were derived from its Charter of October 1691, which had merged the one-time separate colonies of Massachusetts Bay and New Plymouth (the latter famously founded by the "Pilgrims" of the 'Mayflower Compact' of 1620) into a single Royal Province. (Until upheavals in colonial governance caused by the accession of James II, once Duke of York under his brother Charles II, as King of England in 1686 up through his overthrow via the so-called "Glorious Revolution" of 1688 that would put William of Orange and Mary on the English throne a year later had led to the abrogation of these, both once-separate colonies in what would become the Province of Massachusetts Bay in 1691 had operated as "Charter Colonies", much as Connecticut and Rhode Island [which, as noted in Part One, saw no need at all to even draft new fundamental charters of government come Independence] still did in 1776...
one has to then fairly wonder if, had Massachusetts Bay [with or without New Plymouth] still been operating under its pre-1691 Charter [even with the 'Intolerable Acts'- such as the closing of the Port of Boston and the more onerous provisions of the Massachusetts Government Act- of the Spring of 1774, the official British response to the 'Boston Tea Party' of December 1773] as of 1776, it might have simply done what both Connecticut and Rhode Island would themselves be doing in any event and, thus, continue to operate under its original "Charter Government" [in this case, restored once the British had evacuated Boston for good]... in which case [that is: had this 'alternative Universe of History' actually happened], much- if not, in fact, all- I am about to relate in the rest of this series of my Commentaries would, likely, have never even taken place [and who knows how this might have changed American Constitutional History, however even slightly?!]... the proverbial "Time Traveler going back and stepping on an ant and, thereby, altering greatly- as well as forever- his own time"!).
In any event, as the news of the 10/15 May 1776 resolution drawn up by its own representative in the Continental Congress, John Adams, advising the colonies who had not yet done so to now set up governments for themselves, where necessary, reached Boston in late May going on into June, the General Court simply no longer felt that it had the authority to make a Constitution solely on its own. Instead, then, it proposed that each county in Massachusetts (there were 14 counties in Massachusetts back then, as there are today-- BUT: today's Norfolk County was [essentially] part of Suffolk County, while the entirety of today's "Pioneer Valley" [now 3 counties] was [basically] one, single Hampden County, while what is now the State of Maine was, as already noted, part of Massachusetts back then and consisted of but three counties: York, Cumberland and Lincoln) send one delegate to serve on a "Committee" to draw up a Constitution that would thereafter be presented to the Town Meetings in the several town(ship)s of the Province for discussion after which, should the discussion be reported back as mostly favorable (the members of the General Court were direct representatives of these town[ship]s), the General Court would approve the proposed Constitution. The General Court, as representatives of the People, would- as was already the case in most of its sister colonies/States- adopt the document in their name, but not without the same People passing at least some judgment on it first.
The town(ship)s themselves generally did not approve of this idea, however, so the General Court now tried a slightly different tack:
In the Spring of 1777, the General Court asked leave of the town(ship)s to be permitted to draft a Constitution on its own (this, actually, was nothing at all that new: 2 1/2 years earlier, after the General Court had set itself up as the de facto Provincial Congress and- among other things- authorized the Committee of Safety to act on its behalf while it was not in session [this Committee of Safety seems to have been the very inspiration for the original (but now rejected) idea of a county-delegate-based Committee drafting the new State Constitution, by the way], it then purposely adjourned sine die so as to seek re-election in Town Meetings during the Spring of 1775, as it had not been specifically authorized by the town(ship)s to so form a Provincial Congress/"provisional government" in opposition to the Royal Government in Boston in the first place: adjourning the entire legislative body sine die and, thereby, forcing the members to go back to their town(ship)s in order to gain popular support for their doing something so momentous [in the Spring of 1777, this "momentous undertaking" was, of course, the making of a Constitution] had already, by then, become somewhat de rigueur in Massachusetts).
If the town(ship)s approved of this approach, the General Court would do just that- make a Constitution (it was assumed that if there were more duly elected "deputies" from the town(ship)s in the General Court opposed to this idea than not, the General Court would not at all so act in any event) and then submit the newly drafted document to the Town Meetings for approval (or, of course, potential disapproval) by the People...
for the first time, then, a written Constitution would be submitted to the People directly-- that is: a fundamental charter of government would not even be able to take effect until the People themselves had passed judgment on it and found it to their liking. Thus, for the first time in modern History, there was now a working ideal that a Constitution was, more than anything else, a thing of the People themselves (after all, the truest definition of the very word "Republic"- res publica: literally, in Latin, "a thing of the people").
but here's where Massachusetts Bay got even more innovative: while it would require 2/3 of the vote Province-wide for such a Constitution to be so popularly approved, it was who was doing the approving that now came into play:
under its 1691 Charter (still in effect in 1777, until- obviously- a new Constitution could be crafted, adopted and put into force), only men of (real) property could vote in Town Meeting (in reality, the franchise in Massachusetts Bay- as was the case in pretty much all of New England- was rather wide and actually not all that short of what would come to be called [as well as more and more desired as the 18th Century would give way to the 19th] Universal Manhood Suffrage: for most men of age [except for servants and hired hands] owned some however humble farmstead [tenant farming was rather rare as compared to the other regions of the new United States] or house in town which, in turn, entitled him to vote in local [which were also Provincial] elections-- still, there was a notable minority of adult males who could not vote because they were either landless or renters, if not both)... but, as regards a new Constitution, the General Court now proposed to allow all adult males to vote on the question!
So, just who were "We, the People"?
The contemporaneous Constitution of Georgia, perhaps, defined it best for that particular era (and, if one thinks about it most carefully- even with all the changes over now more than two and a quarter centuries of American History since, even for our own time), where it noted that the People were those "from whom all power originates, and for whose benefit all government is intended"... but such power can only so originate from those who are also permitted to vote... thus, in one brilliant stroke (however unintended later consequences of this might have actually been), the Province of Massachusetts Bay had changed the definition of "We, the People" forever-- at least as regards the making of a Constitution (which, or so Massachusetts seemed to think at the time, had to have at least something of the imprimatur of even the average man of lowest station in the community [put another way: if a fundamental charter of government were to, in fact, deny a man his right to participate in that government via his vote by virtue of, say, property qualifications, it was going to have to get that same man's duly registered opinion on this!])
The majority of the General Court newly elected that Spring of '77 being "deputies" in favor of this approach, the legislators now (along with all their other duties-- for they were still also passing ordinary legislation involving all sorts of mundane political and legal issues) set out to draft a Constitution for what they were now calling "the State of Massachusetts Bay". In the end, it took them until February 1778 to complete their labors, after which they submitted their draft to the People... all the People!...
who, in that Spring of '78's Town Meetings, promptly rejected it!
It was for this very reason that, come the middle of 1778 (where Part One of this series of my Commentaries left off), Massachusetts- alone among the 13 United States of America (including Connecticut and Rhode Island still functioning under their now-Crownless Royal Charters)- did not yet have a post-colonial fundamental charter of government.
Once again, the General Court was forced to take a new tack and they ended up taking what was to be an even newer tack, one that would change the methodology of Constitution-making profoundly (and, again, have so obvious an influence on the making of the Federal Constitution):
on 20 February 1779, the General Court passed a resolution asking the Town Meetings that Spring (as the "deputies" to the General Court would, again, be standing for annual election to that body in their respective town[ship]s) to answer two questions:
1. whether they, indeed, wanted a new Constitution in the first place; and
So, for the first time, a body representing the People but completely independent of the legislature would draft a Constitution and submit it to the People (under the same terms as before, by the way- that is: including adult males without property who otherwise would not be entitled to vote for lack of real property in the process, as well as requiring a 2/3 vote of said People to so approve said document).
The answer coming back from the town(ship)s of Massachusetts Bay that Spring of '79 was heavily in the affirmative as regarded this new method and, therefore, come 17 June 1779, the General Court authorized the town(ship)s to hold Town Meetings in which delegates to a "State Convention" would be chosen, said Convention to assemble on the first Wednesday in September next. Accordingly, on 1 September 1779, the Constitutional Convention convened in Cambridge, recessed on 11 November and then reconvened in what is now the Old State House in Boston on 5 January 1780. Finally, on 2 March 1780, the new Constitution- consisting of two portions (as was the case in a few of the State Constitutions of the time, most notably Virginia's), a 'Declaration of Rights of the Inhabitants of the Commonwealth of Massachusetts' and 'The Frame of Government'- was published.
The Convention, thereby, placed the document before the Town Meetings, resolving to reconvene on the first Wednesday of June next in order to ascertain whether or not the document had, indeed, been approved by the necessary two-thirds of all the People. The Town Meetings considered the Declaration of Rights, the Preamble and the six "Chapters" and their divisions into Sections and then Articles (rather different from the "Article, Section, paragraph/clause" system more usual in Constitutions since) within the Frame of Government separately: thus, not all town(ship)s approved every one of these divisions (or even the same ones as a neighboring town[ship]!). Nonetheless, the Convention reconvened on 7 June 1780, spent a week going over the returns from the town(ship)s and came to the conclusion that each and every division of the document had received at least 2/3 of the vote (from somewhere!) in support of it and, thus, come 15 June 1780, the Convention was able to proclaim the new Constitution for the Commonwealth.
Just this past 4th of July, while attending a barbecue at a friend's home here in suburban North Jersey, I was asked by some of those in attendance who are aware of my work for The Green Papers just what the difference between a "Commonwealth" and a "State" might actually be (at least as regards constituent States of the American Union: as opposed to those Commonwealths in "free association" with the United States- Puerto Rico and the Northern Marianas- which are not States)... technically, I told them. there is no difference, at least insofar as their relationship with the United States of America (that is, the Federal Government per se) might be concerned: for the 'Commonwealth of Massachusetts' (along with the three other States of this Union that style themselves 'Commonwealths'- Kentucky, Pennsylvania and Virginia) is as much a State as my own 'State of New Jersey'-- both send two United States Senators to the upper house of Congress, and both are entitled to send Representatives to the lower house of same; both will "appoint" Presidential Electors via the votes cast by their respective citizenry in the 2008 Presidential Election this coming 4 November, etc. etc.
But the use of the term 'Commonwealth' by the former Province of Massachusetts Bay to describe itself in its 1780 document is, or at least was at the time (assuming, for sake of this argument, it might no longer be so), rather significant: note that the General Court (in other words: the legislators, the very representatives of the People responsible for Constitution-making in the immediate wake of Independence in other colonies-become-States) proposed a Constitution two years earlier for a "State of Massachusetts Bay" but that the later, separate Constitutional Convention- more directly and independently representative of the People- created, instead, a "Commonwealth of Massachusetts".
This is, indeed, no mere accident and the implication here is most clear: 'We the People' (however defined at different points in American History) actually form 'commonwealth's, even where most of these might be known to we who reside therein officially as "States" (after all, we are the United States of America) and, indeed, constitutionally function as States of this particular Federal Union. Put another way: each constituent State of the American Union- whether officially 'State' or 'Commonwealth'- is, in essence, truly a 'commonwealth', as is the United States of America (the American Union itself) as a whole, since the ultimate sovereign authority of each of these political entities derives from 'We the People' of said 'commonwealths'- of the Nation and the States.
But what exactly is a 'commonwealth'?
Simply: 'wealth' in the obsolete sense of "being of the 'weal'" (an archaic word meaning "welfare" in the everyday sense: one's well-being or good fortune, the very "happiness" of which it is a Creator-endowed right for every person to pursue [or so says the Declaration of Independence]) that is 'common' (as in "held in common", worthy of protection for the benefit of all members of the community, of all those who make up the society)-- the ideal that the "weal" (in the form of freedom) of the individual (his life and liberty, his safety and happiness) is best protected from the predations of others- nay, even that of the government itself- by constitutional guarantees and processes agreed to "in common" (hence, the need for 'We the People' to pass judgment upon these before they can even be implemented). Essentially, then, "common-wealth" is that very "general Welfare" the "promot[ion]" of which the later Preamble of the United States Constitution itself speaks and a 'commonwealth' is, therefore, a political entity created by the very persons whose individual 'weal' is preserved and protected in 'common' under the umbrella of that same entity.
It was no accident that Massachusetts was founded as a Commonwealth- a place where authority belonged not to a single ruler but to the People themselves, joined together for the common good.--
In late 18th century Massachusetts, its government (itself a holdover from British Royal governance displaced by the American Revolution still ongoing in 1780) could only create a "State" (with all the implications of abject Power such a term might conjure in one's own mind); only 'We, the People' (in the instant case, of Massachusetts itself), however, could create a "Commonwealth" and this was what made what Massachusetts did in 1779-1780 most significant to the ongoing development of just who 'We, the People' really are!
I will close Part Two of this series of my Commentaries by noting that one of the most striking things one notices about the early State Constitutions is a relative lack of the more direct references to the Judeo-Christian Deity that one finds later on in American constitutional Preambles (this despite freedom of religious expression itself being a principal liberty tending to be enshrined in even these earliest fundamental charters of governance). In Part One of this series, I noted how the framers of my own State of New Jersey's second Constitution (that of 1844) were "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", a formulation that was carried over intact into my State's third, and current, Constitution (that of 1947)-- but nothing of that sort seems to have been all that much utilized by those who crafted the earliest fundamental charters for the colonies-become-States in the immediate wake of Independence.
True: New York's first State Constitution, which started off with a rather long description of grievances against King George III and Parliament, actually also included the entirety of the Declaration of Independence among these (so that the Declaration's references to the newly United States now assuming "the separate and equal station to which the laws of nature and of nature's God entitle them", men having "inalienable rights" "endowed by their Creator" and the Continental Congress' own "firm reliance on the protection of Divine Providence" do appear in the Empire State's foundational document-- but these are not at all the original expressions of those who actually crafted New York's Constitution of 1777.
Likewise, Virginia's Declaration of Rights (besides its affirmative protection of "free exercise of religion according to the dictates of conscience") asserted that "it is the mutual duty of all to practice Christian forbearance, love and charity toward each other"; while Pennsylvania's 1776 Constitution considered one of its purposes to be that of "enabl[ing] the individuals who compose ['the community as such'] to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man"... but these were pretty much the fuller extent of the recognition of "Divine Providence" to be found among the earliest State Constitutions.
Where Religion was at all discussed at length (outside of any guarantees of its free exercise, of course), it was usually by way of complaint: for instance, the original South Carolina Constitution of 1776 ranted on about how "the English laws and a free government, to which the inhabitants of Quebec were entitled by the King's royal proclamation, are abolished and French laws are restored; the Roman Catholic religion (although before tolerated and freely exercised there) and an absolute government are established in that Province, and its limits extended through a vast tract of country so as to border on the free Protestant English settlements, with designs of using a whole people differing in religious principles from the neighboring colonies, and subject to arbitrary power, as fit instruments to overawe and subdue the colonies"...
no mincing of words that!
(At least the Declaration of Independence would be more euphemistic in its tone regarding the very same issue where it indicts King George III "[f]or abolishing the free system of English Laws in a neighbouring Province, establishing therein an arbitrary Government, and enlarging its Boundaries, so as to render it at once an Example and fit Instrument for introducing the same absolute Rule into these Colonies" though, doubtless, this also was part and parcel of the Declaration's earlier concern over the revolting colonies being "subject[ed]... to a jurisdiction foreign to our constitution, and unacknowledged by our laws", a concern that would continue to be felt well into the early history of the American Republic, insofar that it- in no small way- eventually contributed to the requirement that Louisiana [veritably filled with descendants of the aforementioned Acadians expelled from Nova Scotia by the British] be the first State to have to submit its State Constitution to Congressional approval prior to Admission, as I myself noted in an essay I once wrote for this website)
In its newly (and finally!) adopted Constitution of 1780, the now-Commonwealth of Massachusetts chose to emulate the more indirect references to a Supreme Being, similar to those found in Pennsylvania's first Constitution, where it declared that
We... the people of Massachusetts, acknowledging with grateful hearts the goodness of the Great Legislator of the Universe, in affording us, in the course of His Providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new Constitution of civil government, for ourselves and our posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain, and establish, the following Declaration of Rights and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.
This very formulation, too, would leave its imprint (though only some of it would do so) on that which would, soon enough, be wrought by "We the People of the United States".
As things would turn out, the 1780 Constitution of the Commonwealth of Massachusetts (as, admittedly, heavily amended long since) would become, as it yet remains (again, if only technically), the oldest written Constitution in the entire World still in effect as of this typing.
But this would be so only because, however "original, explicit, and solemn" the "compact"s that were the Constitutions of its sister colonies-become-States might also have been, there were- by 1780- already States freely replacing their original fundamental charters of government, including the very first State to even have one: New Hampshire.
to be continued...