Constitutional History Before 1776

views updated

CONSTITUTIONAL HISTORY BEFORE 1776

The opening words of the United States Constitution, "We the People," startled some of the old revolutionaries of 1776. patrick henry, after expressing the highest veneration for the men who wrote the words, demanded "What right had they to say, We the People.… Who authorized them to speak the language of We, the People, instead of We, the States? " It was a good question and, as Henry knew, not really answerable. No one had authorized the members of the constitutional convention to speak for the people of the United States. They had been chosen by the legislatures of thirteen sovereign states and were authorized only to act for the governments of those states in redefining the relationships among them. Instead, they had dared not only to act for "the people of the United States" but also to proclaim what they did as "the supreme law of the land," supreme apparently over the actions of the existing state governments and supreme also over the government that the Constitution itself would create for the United States. Because those governments similarly professed to speak and act for the people, how could the Constitution claim supremacy over them and claim it successfully from that day to this, however contested in politics, litigation, and civil war? The answer lies less in logic than in the centuries of political experience before 1787 in which Englishmen and Americans worked out a political faith that gave to "the people" a presumptive capacity to constitute governments.

The idea that government originates in a donation by the people is at least as old as classical Greece. Government requires some sort of justification, and a donation of power by the governed or by those about to be governed was an obvious way of providing it. But such a donation has seldom if ever been recorded as historical fact, because it is virtually impossible for any substantial collection of people to act as a body, either in conveying powers of government or in prescribing the mode of their exercise. The donation has to be assumed, presumed, supposed, imagined—and yet be plausible enough to be acceptable to the supposed donors.

In the Anglo-American world two institutions have lent credibility to the presumption. The first to emerge was the presence in government of representatives chosen by a substantial portion of the people. With the powers of government thus shared, it became plausible to think of the representatives and the government as acting for the people and deriving powers from them. But as these popular representatives assumed a dominant position in the government, it was all too easy for them to escape from the control of those who chose them and to claim unlimited power in the name of the almighty people. A second device was necessary to differentiate the inherent sovereign powers of the people from the limited powers assigned to their deputed agents or representatives. The device was found in written constitutions embodying the people's supposed donation of power in specific provisions to limit and define the government.

Such written constitutions were a comparatively late development; the United States Constitution was one of the first. They came into existence not simply out of the need to specify the terms of the putative donation of power by the people but also out of earlier attempts by representatives or spokesmen of the people to set limits to governments claiming almighty authority from a different source. Although the idea of a popular donation was an ancient way of justifying government, it was not the only way. Indeed, since the fall of Rome God had been the favored source of authority: earthly rulers, whether in church or state, claimed His commission, though the act in which He granted it remained as shadowy as any donation by the people. Up to the seventeenth century, the persons who spoke for the people spoke as subjects, but they spoke as subjects of God as well as of God's lieutenants. While showing a proper reverence for divinely ordained authority, they expected those commissioned by God to rule in a godlike manner, that is, to abide by the natural laws (discernible in God's government of the world) that were supposed to guide human conduct and give force to the specific "positive" laws of nations derived from them. Even without claiming powers of government, those who spoke for the people might thus set limits to the powers of government through "fundamental" laws that were thought to express the will of God more reliably than rulers who claimed His commission. The link is obvious between such fundamental laws and written constitutions that expressed the people's will more reliably than their elected representatives could. The one grew out of the other.

Written constitutions were a deliberate invention, designed to overcome the deficiencies of representative government, but representative government itself was the unintended outcome of efforts by kings to secure and extend their own power. The story begins with the creation of the English House of Commons in the thirteenth century, when the English government centered in a hereditary king who claimed God-given authority but had slender means for asserting it. The king, always in need of funds, summoned two representatives from each county and from selected boroughs (incorporated towns) to come to his court for the purpose of consenting to taxes. He required the counties and boroughs in choosing representatives, by some unspecified electoral process, to give them full powers of attorney, so that no one could later object to what they agreed to. Although only a small part of the adult population shared in the choice of representatives, the House of Commons came to be regarded as having power of attorney for the whole body of the king's subjects; every man, woman, and child in the country was held to be legally present within its walls.

The assembly of representatives, thus created and identified with the whole people, gradually acquired an institutional existence, along with the House of Lords, as one branch of the king's Parliament. As representatives, the members remained subjects of the king, empowered by other subjects to act for them. But from the beginning they were somewhat more than subjects: in addition to granting the property of other subjects in taxes, they could petition the king for laws that would direct the actions of government. From petitioning for laws they moved to making them: by the sixteenth century English laws were enacted "by authority" of Parliament. Theoretically that authority still came from God through the king, and Parliament continued to be an instrument by which English monarchs consolidated and extended their government, never more so than in the sixteenth century. But in sharing their authority with Parliament the kings shared it, by implication, with the people. By the time the first American colonies were founded in the early seventeenth century, the king's instrument had become a potential rival to his authority, and the people had become a potential alternative to God as the immediate source of authority.

The potential became actual in the 1640s when Parliament, discontented with Charles I's ecclesiastical, military, and fiscal policies, made war on the king and itself assumed all powers of government. The Parliamentarians justified their actions as agents of the people; and at this point the presumption of a popular origin of government made its appearance in England in full force. The idea, which had been overshadowed for so long by royal claims to a divine commission, had been growing for a century. The Protestant Reformation had produced a contest between Roman Catholics and Protestants for control of the various national governments of Europe. In that contest each side had placed on the people of a country the responsibility for its government's compliance with the will of God. The people, it was now asserted, were entrusted by God with creating proper governments and with setting limits on them to insure protection of true religion. When the limits were breached, the people must revoke the powers of rulers who had betrayed their trust. For Roman Catholics, Protestant rulers fitted the definition, and vice versa.

When Englishmen, mostly Protestant, challenged their king, who leaned toward Catholicism, these ideas were ready at hand for their justification, and the House of Commons had long been recognized as the representative of the people. The House, the members now claimed, to all intents and purposes was the people, and the powers of the people were supreme. Both the king and the House of Lords, lacking these powers, were superfluous. In 1649 the Commons killed the king, abolished the House of Lords, and made England a republic.

By assuming such sweeping powers the members of the House of Commons invited anyone who felt aggrieved by their conduct of government not only to question their claim to represent the people but also to draw a distinction between the powers of the people themselves and of the persons they might choose, by whatever means, to represent them.

The first critics of the Commons to draw such a distinction were, not surprisingly, the adherents of the king, who challenged the Commons in the public press as well as on the field of battle. The House of Commons, the royalists pointed out, had been elected by only a small fraction of the people, and even that fraction had empowered it only to consent to positive laws and taxes, not to alter the government. Parliament, the royalists insisted, must not be confused with the people themselves. Even if it were granted that the people might create a government and set limits on it in fundamental laws, the House of Commons was only one part of the government thus created and could not itself change the government by eliminating the king or the Lords.

More radical critics, especially the misnamed Levellers, called not only for a reform of Parliament to make it more truly representative but also for a written "Agreement of the People" in which the people, acting apart from Parliament, would reorganize the government, reserving certain powers to themselves and setting limits to Parliament just as Parliament had formerly set limits to the king. Although the Levellers were unsuccessful, other political leaders also recognized the need to elevate supposed acts of the people, in creating a government and establishing its fundamental laws, above acts of the government itself. They also recognized that even a government derived from popular choice needed a separation of powers among legislative, executive, and judicial branches, not merely for convenience of administration but in order to prevent government from escaping popular control.

Although the English in these years generated the ideas that have guided modern republican government, they were unable to bring their own government into full conformity with those ideas. By the 1650s they found that they had replaced a monarch, whose powers were limited, first with a House of Commons that claimed unlimited powers and refused to hold new elections, and then with a protector, Oliver Cromwell, whose powers knew only the limits of his ability to command a conquering army. In 1660 most Englishmen were happy to see the old balance restored with the return of a hereditary king and an old-style but potent Parliament to keep him in line. In 1688 that Parliament again removed a king who seemed to be getting out of control. This time, instead of trying to eliminate monarchy, they replaced one king with another who promised to be more tractable than his predecessor. William III at the outset of his reign accepted a parliamentary declaration of rights, spelling out the fundamental laws that limited his authority.

john locke, in the classic defense of this "Glorious Revolution," refined the distinction made earlier by the Levellers between the people and their representatives. Locke posited a social compact in which a collection of hitherto unconnected individuals in a "state of nature" came together to form a society. Only after doing so did they enter into a second compact in which they created a government and submitted to it. This second compact or constitution could be broken—the government could be altered or replaced—without destroying the first compact and throwing the people back into a state of nature. Society, in other words, came before government; and the people, once bound into a society by a social compact, could act without government and apart from government in order to constitute or change a government.

Locke could point to no historical occurrence that quite fitted his pattern. Even the Glorious Revolution was not, strictly speaking, an example of popular constituent action; rather, one branch of an existing government had replaced another branch. And the Declaration of Rights, although binding on the king, was no more than an act of Parliament that another Parliament might repeal. Moreover, the authority of the king remained substantial, and he was capable of extending his influence over Parliament by appointing members to lucrative government offices.

Locke's description of the origin of government nevertheless furnished a theoretical basis for viewing the entire British government as the creation of the people it governed. That view was expressed most vociferously in the eighteenth century by the so-called commonwealthmen, who repeated the call for reforms to make Parliament more representative of the whole people and to reduce the king's influence on its members. But it was not only commonwealthmen who accepted Locke's formulation. By the middle of the eighteenth century the doctrine of the divine right of kings was virtually dead in England, replaced by the sovereignty of the people, who were now accepted as the immediate source of all authority whether in king, lords, or commons.

In England's American colonies the idea that government originates in the people had been familiar from the outset, nourished not only by developments in England but also by the special conditions inherent in colonization. Those conditions were politically and constitutionally complex. The colonies were founded by private individuals or corporations under charters granted by the king, in which Parliament had no part. In the typical colony the king initially conveyed powers of government to the founders, who generally remained in England and directed the enterprise through agents. As time went on, the king took the powers of government in most colonies to himself, acting through appointed governors. But whether the immediate source of governmental authority in a colony rested in the king or in royally authorized corporations or individual proprietors, it proved impossible to govern colonists at 3,000 miles' distance without current information about changing local conditions. That kind of information could best be obtained through a representative assembly of the settlers, empowered to levy taxes and make laws. As a result, in each of England's colonies, within a short time of the founding, the actual settlers gained a share in the choice of their governors comparable to that which Englishmen at home enjoyed through their Parliament.

England's first permanent colony in America, Virginia, was the first to exhibit the phenomenon. The Virginia Company of London, which founded the colony in 1607 and was authorized to govern it in 1609, did so for ten years without participation of the actual settlers. The results were disastrous, and in 1618 the company instructed its agents to call a representative assembly. The assembly met in 1619, the first in the present area of the United States. When the king dissolved the Virginia Company and resumed governmental authority over the colony in 1624, he declined to continue the assembly, but the governors he appointed found it necessary to do so on their own initiative until 1639, when the king recognized the need and made the Virginia House of Burgesses an official part of the government.

In most other colonies representatives were authorized from the beginning or came into existence spontaneously when colonists found themselves beyond the reach of existing governments. The Pilgrims who landed at Plymouth in 1620 provided for their own government by the may-flower compact, with a representative assembly at its center. The initial governments of Rhode Island and Connecticut began in much the same way. In these Puritan colonies religious principle worked together with pragmatic necessity to emphasize the popular basis of government. Puritans believed that government, though ordained by God, must originate in a compact (or covenant) between rulers and people, in which rulers promised to abide by and enforce God's laws, while the people in return promised obedience. Even in Massachusetts, where from the beginning the government rested officially on a charter from the king, Governor John Winthrop took pains to explain that he regarded emigration to Massachusetts as a tacit consent to such a covenant on the part of everyone who came. The emigrants themselves seem to have agreed; and because the king's charter did not spell out the laws of God that must limit a proper government, the representative assembly of the colony in 1641 adopted the massachusetts body of liberties, which did so.

The model for the colonial representative assemblies was the House of Commons of England; but from the beginning the colonial assemblies were more representative than the House of Commons, in that a much larger proportion of the people shared in choosing them. In England representation was apportioned in a bizarre fashion among the towns and boroughs, with nearly empty villages sending members while many populous towns sent none. In the colonies, although the extension of representation did not everywhere keep up with the spread of population westward, the imbalance never approached that in England, where virtually no adjustments to shifts of population were made after the sixteenth century and none at all between 1675 and the nineteenth century. And while in England a variety of property qualifications and local regulations excluded the great majority of adult males from voting, in the colonies, because of the abundance of land and its widespread ownership, similar restrictions excluded only a minority of adult males.

In addition to its broader popular base, representation in the colonies retained more of its original popular function than did the English counterpart. Representatives in both England and the colonies were initially identified more with a particular group of subjects than with their rulers. As representatives assumed a larger and larger role in government, they necessarily came to consider themselves as acting more in an authoritative capacity over the whole people and less as the designated defenders of their immediate constituents. This conception grew more rapidly in England, as the power of the king declined and that of Parliament increased, than it did in the colonies, where representatives continued to champion the interests of their constituents against unpopular directives from England. The divergence in the American conception of representation was to play a key role both in the colonies' quarrel with England and in the problems faced by the independent Americans in creating their own governments.

By 1763, when France surrendered its North American possessions, Great Britain stood at the head of the world's greatest empire. But the place of the American colonists in that empire remained constitutionally uncertain. Officially their governments still derived authority not from popular donation but directly or indirectly from the king. In two colonies, Rhode Island and Connecticut, the king had conveyed power to the free male inhabitants to choose their own governor, governor's council, and legislative assembly. In two more the king had conveyed governmental power to a single family, the Penns in Pennsylvania and the Calverts in Maryland, who exercised their authority by appointing the governor and his council. In the rest of the colonies the king appointed the governor and (except in Massachusetts) his council, which in all colonies except Pennsylvania doubled as the upper house of the legislature. Thus in every colony except Rhode Island, Connecticut, and Massachusetts, a representative assembly made laws and levied taxes, but neither the governor nor the members of the upper house of the legislature owed their positions even indirectly to popular choice.

It might have been argued that the king himself owed his authority to some sort of popular consent, however tacitly expressed, but it would have been hard to say whether the people who gave that consent included those living in the colonies. It would have been harder still to say what relationship the colonists had to the king's Parliament. In England the king's subordination to Parliament had become increasingly clear. It was Parliament that recognized the restoration of Charles II in 1660; it was Parliament that, in effect, deposed James II in 1688; it was Parliament that placed George I on the throne in 1714 and established the succession of the House of Hanover. Insofar as England's kings ruled Great Britain after 1714 they ruled through Parliament. But they continued to rule the colonies through royal governors and councils, and Parliament still had no hand officially in the choice of royal governors and councils or in the formulation of instructions to them.

Because each colony had its own little parliament, its representative assembly, the people of each colony could have considered themselves as a separate kingdom and a separate people, separate not only from the people who chose the representative assemblies of the other colonies but separate also from the people of Great Britain who chose the British Parliament. If any colonist thought that way—and probably few did before the 1760s or 1770s—he would have had to consider a complicating fact: the British Parliament did on occasion legislate for the colonies and the colonies submitted to that legislation, most notably to the Navigation Acts of 1660 and 1663, which limited the trade of the colonies for the benefit of English merchants. Did this submission mean that the people of the colonies, who elected no representatives to Parliament, were subordinate to, as well as separate from, the people of Great Britain?

In one sense the answer had to be yes: if the king was subordinate to Parliament and the colonists were subordinate to the king, that would seem to make the colonists subordinate to Parliament and thus to the people who elected Parliament. But since Parliament had so seldom legislated for the colonies, it could be argued that the colonists' subordination to it was restricted to those areas where it had in fact legislated for them, that is, in matters that concerned their trade. In other areas, they would be subordinate to Parliament only through the king, and the subordination of the colonial representative assemblies to the king was by no means unlimited. Through the taxing power the colonial assemblies had achieved, over the years, a leverage in the operation of their respective governments comparable to that which had raised Parliament above the king in Great Britain. To be sure, they had not arrived at so clear a position of superiority over their royal governors as Parliament enjoyed over the king. For example, while Queen Anne was the last monarch to veto an act of Parliament, royal governors regularly vetoed acts of colonial assemblies; and even an act accepted by the king's governor could still be vetoed by the king himself. The assemblies nevertheless enjoyed considerable power; by refusing to authorize taxation or to appropriate funds, they could thwart royal directives that they considered injurious to the interests or rights of their constituents. And in some ways they enjoyed a greater independence of royal influence than did Parliament. Because there were few sinecures or places of profit in colonial governments within the appointment of the king or his governors, it was difficult for a governor to build a following in an assembly through patronage.

Despite its constitutional and political ambiguities the British imperial system worked. It continued to work until the power of Parliament collided with the power of the colonial assemblies, thus requiring a resolution of the uncertainties in their relationship. The collision occurred when Parliament, facing a doubled national debt after the Seven Years War, passed the Revenue Act of 1764 (usually called the Sugar Act), levying duties on colonial imports, and the Stamp Act of 1765, levying direct taxes on legal documents and other items used in the colonies. In these acts, probably without intending to, Parliament threatened to destroy the bargaining power through which the colonial assemblies had balanced the authority of the king and his governors. If Parliament could tax the colonists directly, it might free the king's governors from dependence on the assemblies for funds and ultimately render the assemblies powerless.

In pamphlets and newspaper articles the colonists denounced the new measures. The assemblies, both separately and in a stamp act congress, to which nine colonies sent delegates, spelled out in resolutions and petitions what they considered to be fundamental constitutional rights that Parliament had violated. In doing so the assemblies were obliged to define their constitutional relationship to Parliament with a precision never before required.

Parliament, it must be remembered, had been regarded for centuries as the bulwark of English liberties. It was the representative body of the English people, and through it the English had tamed their king as no other Europeans had. To question its supremacy might well seem to be a reactionary retreat toward absolute monarchy by divine right. The colonists were therefore hesitant to deny all subordination to Parliament. Yet, if they were to enjoy the same rights that other British subjects enjoyed in Great Britain, they must reserve to their own assemblies at the very least the power to tax. They acknowledged, therefore, the authority of Parliament to legislate for the whole empire as it had hitherto done in regulating colonial trade, but they drew a distinction between the power to legislate and the power to tax.

The colonists associated legislation with the sovereign power of a state, and they wanted to consider themselves as remaining in some still undefined way under the sovereign power of the British government. But taxation had from the time of England's first Parliaments been a function of representatives, authorized by those who sent them to give a part of their property to the king in taxes. Taxation, the colonial assemblies affirmed, was not a part of the governing 1869 or legislative power, but an action taken in behalf of the king's subjects. This distinction could be seen, they pointed out, in the form given to Parliamentary acts of taxation: such acts originated in the House of Commons and were phrased as the gift of the commons to the king.

Now the difference between American and British conceptions of representation began to appear. The colonists did not think of the English House of Commons as representing them, for no county or town or borough in the colonies sent members. The British government had never suggested that they might, and the colonists themselves rejected the possibility as impracticable. Given their conception of the representative's subservient relation to his constituents, it would have been impossible, they felt, to maintain adequate control over representatives at 3,000 miles' distance. Thus the colonists had not authorized and could not authorize any representative in Parliament to give their property in taxes. When Parliament taxed them, therefore, it deprived them of a fundamental right of Englishmen, sacred since before the colonies were founded. For a Parliament in which the colonists were not represented to tax them was equivalent to the king's taxing Englishmen in England without the consent of the House of Commons. The colonists called in vain on English courts to nullify this violation of fundamental law.

In answering the colonial objections, British spokesmen did not claim that the colonists could be taxed without the consent of their representatives. Thomas Whately, speaking for the ministry that sponsored the taxes, went even further than the colonists by denying that any legislation affecting British subjects anywhere could be passed without consent of their representatives. But he went on to affirm what to the colonists was an absurdity, that the colonists were represented in the House of Commons. Although they did not choose members, they were virtually represented by every member chosen in Britain, each of whom was entrusted with the interests not merely of the few persons who chose him but of all British subjects. The colonists were represented in the same way as Englishmen in towns that sent no members, in the same way also as English women and children.

However plausible this reasoning may have been to Englishmen, to the colonists it was sheer sophistry. They made plain in resolutions of their assemblies, as for example in Pennsylvania, "That the only legal Representatives of the Inhabitants of this Province are the Persons they annually elect to serve as Members of Assembly." Pamphlets and newspapers were even more scathing in rejecting the pretensions of Parliament to represent Americans. In Massachusetts james otis asked, "Will any man's calling himself my agent, representative, or trustee make him so in fact?" On that basis the House of Commons could equally pretend "that they were the true and proper representatives of all the common people upon the globe." (See taxation without representation.)

In reaction to the objections of the colonists and of the English merchants who traded with them, Parliament in 1766 repealed the Stamp Act and revised the Sugar Act. But at the same time it passed a Declaratory Act, affirming its right to legislate for the colonies "in all cases whatsoever." The framers of the act deliberately omitted specific mention of the power to tax, but in the following year Parliament again exercised that presumed power in the townshend acts, levying more customs duties on colonial imports. The colonists again mounted protests, but they were still reluctant to deny all Parliamentary authority over them and clung to their distinction between legislation and taxation, which the great William Pitt himself had supported (unsuccessfully) in Parliamentary debate. Parliament, they said, could regulate their trade, even by imposing customs duties, but must not use the pretext of trade regulation for the purpose of raising revenue.

Once again the colonial protests, backed by boycotts, secured repeal of most of the offending taxes, but once again Parliament reaffirmed the principle of its unlimited power, not in a declaration, but by retaining a token tax on tea. The colonists, relieved of any serious burden, were left to ponder the implications of their position. In one sense Parliament was treating them as part of a single people, over all of whom, whether in England or elsewhere, Parliament reigned supreme. In rejecting the notion that they were, or even could be, represented in Parliament, the colonists implied that they were a separate people or peoples.

A reluctance to face this implication had prompted their continued recognition of some sort of authority in Parliament. If Parliament in the past had secured the rights of Englishmen, was it not dangerous (as Whately had indeed said it was) to rely instead on the powers of their own little assemblies? If they were a separate people, or peoples, not subject to Parliament, would they not be foregoing the rights of Englishmen, the very rights they were so vigorously claiming? Could they expect their own assemblies to be as effective defenders of those rights as the mighty British Parliament?

As the quarrel over taxation progressed, with the Boston Tea Party of 1773 and Parliament's punitive Coercive Act of 1774 against Massachusetts, more and more Americans overcame the doubts raised by such questions. The Coercive Acts regulated trade with a vengeance by interdicting Boston's trade, and the acts also altered the government of Massachusetts as defined by its royal charter (ending the provincial election of the governor's council), thereby showing once and for all that guarantees given by the king could not stand before the supremacy claimed by Parliament. In the treatment of Massachusetts the other colonies read what was in store for them, and the various colonial assemblies sent delegates to the first continental congress in 1774 in order to concert their response.

As in the earlier Stamp Act Congress, the delegates had to determine what they considered to be the limits of Parliament's authority. This time, abandoning their distinction between legislation and taxation (which Parliament had never recognized), they denied that Parliament had or had ever had constitutional authority over them. As a last conciliatory gesture, they expressed a willingness voluntarily to submit to bona fide regulations of trade, but made clear that Parliament had no constitutional right to make such regulations. Following the lead given in tracts by john adams, james wilson, and thomas jefferson, they elevated their separate representative assemblies to a constitutional position within their respective jurisdictions equal to that of Parliament in Great Britain. The only remaining link connecting them with the mother country was their allegiance to the same king, who must be seen as the king of Virginia, Massachusetts, and so on, as well as of England, Scotland, Wales, and Ireland. (Ireland, it was noted, also had its separate Parliament.) Over his peoples beyond the seas the king exercised his powers through separate but equal governments, each with its own governor, council, and representative assembly.

The king did not, of course, rule by divine right. In the colonies as in England he derived his authority from the people themselves, that is, from the separate consent or constituent act of each of the peoples of his empire. John Adams of Massachusetts, perceiving the need to identify such an act, pointed to the Glorious Revolution of 1688 as an event in which each of the king's peoples participated separately. "It ought to be remembered," he said, "that there was a revolution here, as well as in England, and that we as well as the people of England, made an original, express contract with King William." That contract, as Adams and other colonists now saw it, limited royal power in the same way it was limited in England and guaranteed in each colony the exclusive legislative and taxing authority of the representative assembly.

Although the First Continental Congress gave a terminal clarity to the colonists' views of their constitutional position in the empire, it looked forward uncertainly toward a new relationship among the colonies themselves. The membership of the Congress reflected the uncertainty. Some of the members had been chosen by regularly constituted assemblies; others had been sent by extralegal conventions or committees; and a few were self-appointed. What authority, if any, the members had was not clear. Given the view of representation that had guided colonial reaction to Parliamentary taxation, no one was ready to claim for Congress the powers denied to Parliament. Though delegates from every colony except Georgia were present, they had not been chosen by direct popular elections and therefore were not, by their own definition, representatives. At best, as one of them put it, they were "representatives of representatives."

Yet they had not come together simply for discussion. Boston was under military occupation and Massachusetts was under military government. Regular royal government throughout the colonies was fast approaching dissolution. It was time for action, and the Congress took action. Without pausing to determine by what authority, it adopted an association forbidding not only exports to and imports from Great Britain but also the consumption of British goods. And it called for the creation of committees in every county, city, and town to enforce these restrictions.

In the misnamed Association (membership in which was scarcely voluntary) the Congress took the first steps toward creating a national government separate from that of the (not yet independent) states. If the members believed, as presumably they did, that the authority of government derives from the people, they implied, perhaps without quite realizing what they were doing, that there existed a single American people, distinct not only from the people of Great Britain but also from the peoples of the several colonies and capable of conveying a political authority distinct from that either of Great Britain or of the several colonies.

The implication would not become explicit until the Constitution of 1787, but the Second Continental Congress, which assembled in May 1775, looked even more like the government of a single people than had the First. Fighting had already broken out in April between British troops and Massachusetts militiamen, and Congress at once took charge of the war and began the enlistment of a Continental Army. It sent envoys to France to seek foreign assistance. It opened American commerce to foreign nations. It advised the peoples of the several colonies to suppress all royal authority within their borders. And finally, after more than a year of warfare, it declared the independence of the United States.

Despite the boldness of these actions, the declaration of independence itself betrayed the ambiguities that Americans felt about their own identity. It unequivocally put an end to royal authority (parliamentary authority had already been rejected) and consequently to all remaining connection with the people of Great Britain. But it was not quite clear whether the independence thus affirmed was of one people, or of several, or of both one and several. While the preamble spoke of "one people" separating from another, the final affirmation was in the plural, declaring that "these United Colonies are, and of Right ought to be Free and Independent States." Yet in stating what constituted free and independent statehood, the Declaration specified only "power to levy war, conclude peace, contract alliances, establish commerce." These were all things, with the possible exception of the last, that had been done or would be done by the Congress.

But if the Congress sometimes acted like the government of a single free and independent state, the members still did not recognize the implication that they represented a single free and independent people. They did not consider their Declaration of Independence complete until it had been ratified by each of the separate states whose freedom and independence it declared. And when they tried to define their own authority, they found it difficult to reach agreement. articles of confederation, first drafted in 1776, were not ratified by the several states until 1781. The Articles entrusted Congress with the powers it was already exercising but declined to derive those powers from a single American people. The old local committees of the Association of 1774, tied directly to Congress, were now a thing of the past, and the enactments of Congress became mere recommendations, to be carried out by the various states as they saw fit.

Even before the Declaration of Independence, in response to the recommendation of the Congress, the states had begun to create governments resting solely on the purported will of the people within their existing borders. In every state a provisional government appeared, usually in the form of a provincial congress resembling the old colonial representative assembly. In most of the states, beginning with Virginia in June 1776, these provincial congresses drew up and adopted, without further reference to the people, constitutions defining the structure of their governments and stating limitations on governmental powers in bills of rights. In every case the constitution was thought or proclaimed to be in some way an act of the people who were to be governed under it, and therefore different from and superior to acts of representatives in a legislative assembly. But often the provincial congress that drafted a state constitution continued to act as the legislative body provided in it. Although a constitution might affirm its own superiority to ordinary legislation, the fact that it was created by legislative act rendered doubtful its immunity to alteration by the body that created it.

A similar doubt surrounded the principle, also enunciated in most of the constitutions, that (as in Virginia) "The legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other." The several provincial congresses that drafted the constitutions inherited the aggressiveness of the colonial assemblies against executive and, to a lesser degree, judicial powers, which had hitherto rested in an overseas authority beyond their reach. In spite of the assertion of the separation of powers, and in spite of the fact that executives and judges would now derive authority solely from the people they governed, the state constitutions generally gave the lion's share of power in government to the representative assemblies.

The result was to bring out the shortcomings of the view of representation that had directed the colonists in their resistance to British taxation. For a decade the colonists had insisted that a representative must act only for the particular group of persons who chose him. They occasionally recognized but minimized his responsibility, as part of the governing body, to act for the whole people who were to be governed by the laws he helped to pass. Now the representative assemblies were suddenly presented with virtually the entire powers of government, which they shared only with a weak executive and judiciary and with a Continental Congress whose powers remained uncertain, despite Articles of Confederation that gave it large responsibilities without the means to perform them. Undeterred by any larger view of their functions, too many of the state assemblymen made a virtue of partiality to their particular constituents and ignored the long-range needs not only of their own state but of the United States.

The solution lay ahead in 1787. By 1776 the inherited ingredients of the settlement then adopted were in place. A rudimentary distinction between the constituent actions of a putative people and the actions of their government had been recognized, though not effectively implemented, in the state governments. All government officers were now selected directly or indirectly by popular choice, with their powers limited, at least nominally, by a reservation to the people of powers not specifically conveyed. And a national center of authority, not quite a government but nevertheless acting like a government, was in operation in the Continental Congress.

What was needed—and with every passing year after 1776 the need became more apparent—was a way to relieve popular government from the grip of short-sighted representative assemblies. Two political inventions filled the need. The first was the constitutional convention, an assembly without legislative powers, entrusted solely with the drafting of a constitution for submission to popular ratification, a constitution that could plausibly be seen as the embodiment of the popular will superior to the ordinary acts of representative assemblies. Massachusetts provided this invention in 1779, in the convention that drafted the state's first constitution. (See massachusetts constitution.)

The first invention made way for the second, which was supplied by james madison and his colleagues at Philadelphia in 1787. They invented the American people. It was, to be sure, an invention waiting to be made. It had been prefigured in the assumptions behind the Continental Association and the Declaration of Independence. But it reached fulfillment only in the making of the Constitution. By means of a national constitutional convention the men at Philadelphia built a national government that presumed and thus helped to create an American people, distinct from and superior to the peoples of the states.

The idea of popular sovereignty was, as we have seen, an old one, but only occasionally had it dictated the formation of popular governments, governments in which all the officers owed their positions directly or indirectly to popular election. Though the idea surfaced powerfully in the England of the 1640s and 1650s, it eventuated there in a restored monarchy, and it won only partial recognition in England's Revolution of 1688. In the american revolution it had seemingly found full expression in thirteen separate state governments, but by 1787 the actions of those governments threatened once again to discredit the whole idea. The signal achievement of the constitutional convention was expressed in the opening words of the document it produced: "We the People of the United States." The United States Constitution rescued popular sovereignty by extending it. It inaugurated both a new government and a new people.

Edmund S. Morgan
(1986)