Virginia Writes a Constitution:

Why Should I Read about Writing a State Constitution?

Was Virginia’s the first American state constitution? Technically, yes–if you believe that American sovereignty and separation from the mother country are prerequisites for writing an “American” state constitution. But, in actual fact New Hampshire wrote its first state constitution earlier in 1775-6, while the Second Continental Congress was convened, and previous to the Declaration of Independence was written and approved. Virginia approved its constitution in the immediate aftermath of the Declaration’s approval in July 1776. Pennsylvania followed a couple of months later–more on that one in our Pennsylvania chapter that follows. So my vote for first goes to Virginia.

OK. Why do we have a read about making a state constitutions at all? Yes, it is the price the reader pays for reading a history of American state and local economic development policy based on policy-making by a state (and local) policy system. Like it or not it is the state constitution that sets up the framework for state–and most importantly–local policy system. Local policy systems are “creatures” of the state policy system; they possesses (even with home rule) no inherent sovereignty. In the United States only the federal and state governments enjoy constitutional sovereignty. The “very first” state constitution is really, really important because it (1) can incorporate elements of the previous colonial heritage and structural experience, and then use them as starting blocks for future evolution of the state–or, if it so chooses the first state constitution can reject the colonial past and begin again. The first constitution is the foundation upon which improvements are made.

We have spent a hell of a lot of time looking at Virginia’s colonial history and structural policy system legacy, now is where we find out whether it has relevance of Virginia’s state government. The quick and dirty answer is yes it does. Virginia did incorporated–with one major exception–the core of its colonial policy systems structures, and thereby embraced its colonial dynamics and policy-making characteristics. Virginia’s first state constitution is old wine in a new bottle. In that Virginia’s colonial policy system was a rather belabored imitation of a democratic republic, that is faint praise for its Early Republic constitution. Jefferson wrote much in 1776 of his criticism of it. He didn’t like it much better after his two terms as governor under that constitution.

A second reason why the first state constitution is really important (2) is that it is the first official time where state-level decision-makers confront the “politics”, the cultural chasms, the geographical sub-regions, and the different classes within its state boundaries. Writing a state constitution is less a legal battle of opposing legal concepts and principles than a political and cultural battle between different sub-groupings. One doesn’t write a state constitution; one forges it. One either ignores the opposing groups, crush them or compromise with them. If that is so, it matter who is entrusted to “forge” this constitution–are they representative of the larger state configuration or not? Quick answer for Virginia: No–although it was lots more representative than its colonial House of Burgesses was. As for geographic representation (i..e. did our western Germans, Scots-Irish, and whatnot in the Shenandoah and Blue Ridge Mountains participate? Yes–but their representation, as we shall discover, was hopelessly malapportioned  and they were in a hopeless minority. No slaves and women were involved in the first constitution. The state did not seriously confront that cultural and geographical chasm until its 1829-30 reform of the state constitution.

As to political culture, the colonial Tidewater political culture had, as we have laboriously attempted to prove, fragmented–and in 1776 the state was literally in a civil war with British Tory Loyalist Planters and Scottish Factors, were, almost by definition, not among the writers of the first state constitution. Neither were many older traditional oligarchs. To think of Washington, Randolph, Richard Henry Lee, Henry, and Mason as the radical fringe of the planter oligopoly seems a bridge too far for me, but they were the older of a new generation that had assumed power in the oligarch vacuum.They were decidedly anti-British, came early to some form of independence, and each questioned key elements in the old planter culture.  A second wave, about ten years younger were the Jefferson, Madison-Monroe, Marshall, and a slew of younger Tidewater/Piedmont younger brothers (Lee and Washington had several Patriot-inclined). In this critical period the Virginia/Tidewater oligarchy was as broken/fragmented, and marginalized as it may have even been in its 175 year history. The veneer of revolutionary radicalism that seemingly infused the oligopoly, however, masked a silent majority who for one reason or another was largely on the sidelines of activism and politics. Given their hegemonic dominance over their local communities-counties they were, however, not absolutely and permanently removed from the policy system. Some day not too far in the future they would stumble back in.

In the module we will point out how the groupings differed as to relevant sections and provisions of the constitution. On occasion we will contrast the drafts of the first constitution with what was eventually approved. For example the first draft of Virginia’s 1776 state constitution prohibited slavery–but was rejected, and not changed constitutionally until 1864, when the West Virginian secessionists wrote their own state Constitution. Previous to that they used the Virginian.

The final reason we ought to read about the state constitution, first or otherwise, is that it creates the core policy-making structures of the state and local policy systems, and equally important specifies the relationships between them, particularly relationships among the branches of government, and the state-level and local policy systems. The reader will remember that the colony of Virginia had evolved a local policy system dominated by planter oligarchs, and then permitted the local officials to simultaneously serve in the House of Burgess, the lower house of the colony legislature. Aside from perpetuating a local oligopoly it also significantly lessened local autonomy. Happily, the 1776 state constitution retained these features. In any case, policy-making structures produce policies, economic development policies for sure, and the 1776 Virginia state constitution had something to say about Virginia state economic development policies and strategies. That I might add is somewhat unusual.

 

Setting the Context and Identifying the Salient Issues and Dynamics of Virginia’s 1776 Revolutionary War State Constitution

 

Waves of Revolutionary War Era State Constitutions

As the reader is likely aware, I spend a good deal of time trying to sensitize him/her to the background, the context of politics and economics of colonial times. This is usually ignored in most smush histories we now read. That lack of historical context allows, in fact almost requires, the reader to insert their own context in order to interpret what she is reading. That any of us can, instinctively call to mind the realities of an age we never lived, invites all kinds of distortions. As we start our conversation on Virginia’s revolutionary war state constitution–bet you never thought you’d be reading about that–maybe a couple of commonsense background noise should be inserted, as well as an obvious observation on how constitution-writing evolved in the years after 1776.

First, the Fifth Convention in its initial days declared the state’s independence from Britain and the King, and instituted a series of measures to finance and prepare troops for war. In a matter of a couple of days Virginia moved from being a colony to an independent nation going to war with the most powerful empire of the period. This the Fifth Convention knew would also start a civil war of Virginia residents and citizens as well. All in a days work, as far as two-hundred and fifty years of elapsed time is concerned! Which emoji would you choose for your Facebook posting? When they did so, the members of the Fifth Convention already knew one of their own was commander-in-chief of the American Continental Army, up there in Boston-land. They also knew the Continental Congress was on the threshold of doing the same, and one of their own, Thomas Jefferson had written the Declaration of American Independence. Before that war was over, the British Army and Navy would be raiding Virginia’s coast, burning down its state capital twice, and literally chasing Jefferson out of it–but too late for Daniel Boone, a Virginia state legislator (he was captured by the Tarleton the villain of Mel Gibson’s “the Patriot’)–and to be fair, the battle that finally won the war, Yorktown, was in Virginia. Did I mention that when Virginia entered the war it was virtually bankrupt–and then things really got worse?

More to the point concerning state constitution-writing. Virginia was the first to approve a constitution–just immediately after the Declaration of Independence–in fact it was writing her constitution while the Continental Congress was drafting and debating independence. The state constitution and the Declaration overlapped pretty much. Being first, there wasn’t any instruction manual available, you know a “State Constitution for Dummies” affair. Even the British Constitution was unwritten, so you couldn’t copy that–and there were no other democracies in existence, so Virginia was really the first in writing a democratic constitution. In an atmosphere of war, and being the first on the block, one might imagine Virginia state constitution-writing was between a rock and a hard place–get something written fast and let’s go fight/defend our self, and, let’s get this right and not leap from the frying pan into the fire.

Don’t you enjoy trite sayings made into metaphors, piled on top of each other? Obviously I do.

In the opening months of Independence and War, several states wrote their initial state constitutions. Needless to say tempers were hot, people in these first months were extremely patriotic–while others were scared to death of what was going to happen. These emotions entered into constitution-writing. When emotions were tempered by reality–battles, disease and epidemics, economic boycotts, recessions, financial collapse and all the good things wars bring–state constitution writers began to devote more time in making sure the constitution could produce an effective government that could make timely and reasonable decision. That happened in 1777, New York being the first in that. Finally, as years went on,  states that wrote their constitution after the Federal Constitution had that as a model, and as such they were more deliberative, philosophical, had more moving parts, and they could learn from those that had gone before–Vermont, Kentucky and Tennessee were the first examples.

G. Alan Tarr and Donald Lutz, a scholars on whom we rely for much in the module, posits ” three waves” of constitution-writing:

During the first wave (immediately prior to and following independence), a reaction to the abuses by the Crown led constitution-makers to concentrate power in state legislatures. The state’s greater experience in constitutional design, together with their admittedly brief experience with unchecked legislative power, promoted a second wave of constitution-making, beginning with the New York Constitution of 1777, in which executive power was augmented. Following 1787, the new model of constitutional design offered by the Federal Constitution, inaugurated a third wave of constitutional reform…

A pressing issue confronting those who framed the initial state constitutions was justifying the state’s assumption of governmental authority … for the most part their justification was based on the doctrine of popular sovereignty and on consent theory. State constitutions thus also had to explain how they could claim the authority to speak and act for the people of their state [1].

Aside from the obvious, the state constitutions were not clones of each other–even then. That is true even though the states after Virginia copied her constitution–others copied Pennsylvania’s, the next to write a constitution after Virginia. So there was a lot of copying, but also a lot of individuality distinctive to each state. There were a lot of do-overs as state’s made a second attempt to get it right (Pennsylvania did ). Virginia did not. Virginia’s did not write a new state constitution until 1829, and while there were significant changes, the core essentials did not change, until 1859 and after. Virginia’s first constitution hung around for a long time–pretty much to the Civil War.

There was a reason for that. The initial constitution installed Virginia’s planter oligopoly into power–and once there it wasn’t about to leave willingly–even when confronted with the future Andrew Jackson. It didn’t hurt that four of the first five Presidents of the United States were Virginian–all of whom were involved in writing the first state Constitution. For us, the principal and first level take away is that behind the scenes, the Virginia constitution perpetuated the planter oligopoly that had evolved from its colonial past into its Early Republic United States future. Virginia’s Early Republic policy system was remarkably similar to its colonial policy system–minus the royal (or not royal) governor. If so, a weakened governor in Virginia did not result simply because of patriotic revolutionary fervor against the King and his royal governor–it also involved handing over government to a legislature dominated by local plantation-planters, who had dominated the legislature for well over a hundred-seventy-five years. The More Things Change, the More They Stay the Same so they say–at least for Virginia in 1776.

 

Incorporation of the Colonial Past–First, the obvious, Virginia was the first, so it didn’t really copy anybody’s. Having said that, as Professor Jackson Turner Main observed, “Men never can start from scratch ….In reality men do not think tabula rasa because they inherit a body of thought and passions [[values. The Americans drew their political ideas not out of thin air but from a complex ideological inheritance … Moreover, men’s theories reflect and respond to particular circumstances” [3]. In addition, I would simply add in the midst of a revolution and state civil war, one does not engage in structural change willynilly. They simply incorporated local government and essentially changed the names of the old colonial institutions. In that they were at war with their former executive branch, the royal governor and the King/Parliament, it may be no surprise they radically restructured the executive branch, leaving out the last two entirely and creating a rather powerless governor–among the very weakest in the thirteen colonies. This frustration and fear of the executive branch was prevalent in all the colonies–but Virginia was one state among several that took that antipathy to the executive branch several steps more than others. Why?

Ideologies of the Day–Here we enter into the realm of political ideas and partisan ideologies. Our present day histories, and certainly media commentary, emphasize our uniqueness, exceptionalism it is sometimes called. We were a “First Nation”, and we also was a “Developing Nation”. We engaged in a War of Independence from a colonial master. We had ample opportunity to carve our own path to liberty and governance which proved distinctive from the European nations. But, let us also remember, we owed much to Britain. Of relevance in this module, we had experienced British politics and policy-making for the better part of one hundred and seventy-five years, and we did look at politics and ideology through a British prism. We will find that local government, law, and business incorporations were deeply rooted in British institutions, practices and customs.

Less appreciated was that our political elites were raised and socialized as they experienced the vicissitudes of British partisan ideologies. Like we tend to distinguish liberals from conservatives today, back then it was a “court and countryside” distinction. The Court approach used government, centralized national government in London, and it embraced an pursued what a drift to capitalism and industrialization. Arrayed against it was countryside, or landed aristocracy, based on the manor of yore, the estate of 1776.  Virginia’s heritage was clearly with the latter–and the thrust, certainly through the 1740’s was plantations as Virginia’s landed estate. In the 1750’s and after, the Virginia plantation oligopoly fragmented and a wing emerged which pursued a court, they called it Whig, approach to policy-making. That distinction was shared among many states as well as Virginia, but as other states had formed their own distinctive economic bases and political heritage, they had to deal with groupings and thought patterns not common to Virginia. Virginia had no “Big Cities”, it was not urban at all, and its embrace of the capitalist and industrial dynamics gravitated to land and agriculture. This Whig-landed aristocracy distinction was a continuum found within the Tidewater elite oligopoly–and the war of independence muted a great deal of the relevance of Whig-Landed Aristocracy until its end after 1783.

What was more important was a “third” ideology: what I will call here egalitarianism, with its American version often labeled as “frontier democracy”.  Egalitarianism was also prevalent in all states to some degree–and it was very prevalent in Virginia. Leaving aside for the moment slaves and women, the western county residents in frontier counties of Virginia were decidedly egalitarian, and on the whole, they were excluded from the making of the 1776 state constitution. This was definitely not true of many other states. In Pennsylvania, for example, the egalitarians took over and wrote a radical egalitarian constitutions. Don’t look for that in Virginia. Already the reader is seeing  in practice a statement I made very early on in this history: “States are different because they always were different”. As the Twig is Bent; so Grows the Tree.

 

Policy-Making Institutions-Structures–Likely, most contemporary Americans are first taught the principles and policy structures of our 1789 national American Constitution–and they logically simply apply them to the writing of state constitutions. The reverse, however, is the reality. The federal constitution was written a decade or more after the state constitutions. There is no federal constitution, with three branches and checks and balances to simply copy over. The sovereign thirteen states came first, the national government came later–and with some logic, that is a major reason why we had to fight the Civil War in the 1860’s. The Early Republic, however, will reflect the 1776 reality that the thirteen states were sovereign–they were in 1776 writing a constitution for their nation. The Articles of Confederation, the national government, was never approved by the required number of states until 1781–and did not officially at least become a confederation until 1782–and a nation only in 1783. As we proceed to understand these initial state constitutions, the reader should appreciate the volatility and transitional change of the time period–and the completely different orientation held by state constitution writers in contrast to our present day.

Usually when one encounters analysis of state constitutions, the thrust is legal, and performed by lawyers seeking precedent and legal scholars. Their perspective, of course valid and indeed imperative to a reason role of law, is, however, not what is found in this module. Our objectives include understanding the cultural and economic, and obviously historic influences on the development of a state constitution at a particular point in time. We are also interested in the clash of the groups that duked it out when the constitution was written and approved. Equally, we are concerned with legitimate groupings that did not, or were not allowed to participate in that writing–in this module the ethnic settlers of Virginia’s western counties. Our core objective is to understand the why of the relationships among and between policy-making institutions, and branches of government. To do this we often need to understand the impact of the electoral franchise of the making of subsequent policy by these institutions. Because we focus on economic development, property rights and egalitarian conflicts are central to our distinction between Mainstream Economic Development and Community Development.

The most obvious need for this history is to concentrate on those features of the state constitution that directly related to policy-making–economic development policy in particular. The noted constitutional historian Tarr calls these critical elements the instruments of “governmental design”, the mechanisms, processes and relationships of policy-making and governance that each state chose to ensure the “people’s will” was translated into policy. Tarr asserts “state constitutional politics have been dominated by three recurring issues”:

One is the distribution of political power among groups and regions within the individual states, reflected in conflicts over apportionment and the franchise. The second is the scope of governmental authority, particularly what sorts of substantive or procedural limits should be imposed on legislatures. A third is the relation of the state to economic activity, including both the extent of direct government support for enterprise and the balance between promotion and regulation of economic development [2].

To this I would add the governance and policy system prescribed for sub-state jurisdictions. The inclusion of the last element, however, very quickly alerts us to the reality that most states”most states did not define  the structure or powers of local government , although most used counties or towns as basic units in apportioning  one or both houses of the state legislature” [4]. The bypasses the de facto reality that in so doing the state merely incorporated “what was” in existence, and carried it over into the new world of the Early democratic Republic. That necessarily also meant that the political, economic and cultural colonial past was the dominant predictor of Early Republic state-local relationships. Morally more important was slavery–the workforce of the planter oligopoly.

Intra-State Power Distribution--In this chapter, since we have isolated Virginia, we are concerned that our modules have in aggregate asserted the economic, political and cultural factors that (1) resulted in a lack of urbanization, (2) which led to reliance on counties, not towns or cities, (3) and then installed a local plantation elite as the dominant players in local policy systems, and finally (4) blurred local autonomy with state predominance by institutionalizing the simultaneous office-holding of local judges from the county court to the lower House of Burgesses. What was effectively created were the essentials of a local elite machine that in aggregate dominated the lower house of the Virginia legislature–based on election, it was a rather poor substitute for an effective democracy. I might add it did little to improve the quality of the lower house’s policy-making. In any event this justifies a second perspective that considers the extent to which the colonial past was incorporated into the 1776 future governance through the first state constitution. [A charming distraction is that Connecticut never wrote its initial state constitution until 1818–it simply continued with its colonial “constitution for forty-three years].

As a sidebar, Tarr’s correct observation that either towns, cities or counties were used for apportionment purposes by many of the thirteen colonies, also sensitizes us that individual colonial policy systems relied chiefly on one or another primary form of local government–and hence from the onset tilted their Early Republic sub-state governance future. In that key element, the colonial past really did matter–and its mostly silent incorporation by the initial state constitution hides a very important element in our history. Thus a key take away from our colonial modules, that local elites were also colony, now state level elites sensitizes us to and important characteristic of colonial past that continued to the Early Republic: the focus, perspective, and policy concerns of this blurred local/state policy system in which local interests permeated–saturated state-level policy-making.

Tarr does include “the distribution of political power among groups and regions within the individual states” as a key dynamic and it needs to be further developed in light of our bottoms-up approach to state and local history. We have found in Virginia’s case at least–and it will be confirmed as we move onto other states–that post 1720 North America was invaded by a fifty-year horde of foreign immigrants, each grouping possessing its own way of thinking about governance, a distinctive political culture, if one accepts. Furthermore, there was a decided geographic overtone to these migrations in that excepting Philadelphia, most of the immigrants moved to the western peripheries of the state in which they resided. Leaving Philadelphia, they traveled the Great Wagon Trail down through western Maryland, into western Shenandoah Virginia, and into the western Blue Ridge foothills of Virginia and North Carolina, and from there into the western Piedmont of Georgia and South Carolina.

In Virginia’s case these new residents were poorly integrated into the existing “core Tidewater/Piedmont colonial policy system, and their political and policy-making impact on that core colonial policy system was minimal to non-existent in aggregate. The issue of whether these excluded or marginalized migrants were included in the initial state constitution-making become very relevant. If they were meaningfully allowed to join the core colonial policy system then we can observe their impact. If they were not, they were transformed into a latent force with which the new state would have to deal in the future–from the perspective of the migrants frustrated political, social and economic aspirations, the first constitution became a major element in creating a phenomena we have labeled as the “Interrupted Revolution”.

If these residents were to choose to “exit” the state, leave Virginia, they were, given the substance of their American Dream aspirations, prone to move further west, and populated what would be “new trans-Appalachian states. This potentially could led to a degree of unstable policy consensus to the Early Republic as new states populated the unsettled regions and were admitted to the Union. The reader will find in future chapters that this is exactly what happened. A further corollary is that to the extent these ethnic/religious western migrants possessed their own ideas as to the preferred economic development programs and strategies, not to exclude goals–as they did–the impact on our history will potentially be considerable. How the state constitutions handled these recent ethnic migrations is an important and neglected feature of the initial state constitutions.

That the elites drawn from the core coastal colonial geographies were already in process of formulation of what would become America’s first economic development paradigm, our George Washington case study hopefully having alerted the reader to what will be further developed in future models, one might see more substance in the Interrupted Revolution if “western” forms of economic development materially differed from that of the colonial elite. How would all this be affected, if elites from the core Tidewater policy system, themselves emigrated into the trans-Appalachian west, and directly or indirectly were able to impose the Virginia state constitution on the new state as it entered the Union? That is what will happen in 1792 Kentucky. I could ramble on, but hopefully, the reader catches my drift–that in this case the initial Virginia revolutionary war state constitution can potentially produce by-products anticipated by no one in 1776. Surely using hindsight, that allows us the opportunity to add a fourth perspective, to alert readers to future policy-making time bombs.

Revolutionary War “Fervor”–Are we done yet with all these “perspectives”? One last one will also be helpful. In our opening section to this module I discussed the reality that colonial politics and political ideologies necessarily were impacted, but also shaped by those inherited from its mother country–Britain. Court (Whig) and Landed Aristocracy (countryside, Tory). Depending upon who you were, American elites, and to some extent the mass of the American populace, these political ideologies and the reaction to them had a serious impact on revolutionary war state constitutions. As Jackson Turn Main asserts, American elites in particular applied their perceptions of these two British political approaches in choosing among the structures and institutions they wish to empower or marginalize in the making of their policy regimes. Depending on who they blamed for causing the revolution, or what they wanted to instill in the new policy system they were creating, legislature and the executive branch were not regarded as simple policy-making institutions, but were rather infused with hopes, fears and perceived realities of governance.

That the King and Parliament were thought of as executive branch held certain implications to many constitution-writers. That the legislature was infused with egalitarian hopes and aspirations associated with a democratic form of government was another dynamic. That franchise restrictions, or the lack of them, allowed the Mob to influence versus dominate future policy-making generated yet another set of emotions. In essence the elites that wrote state constitutions–and for the most part state constitution-writing is an elite affair, certainly in 1776-did not perceive the institutions and processes of policy-making neutrally–each branch of government was view differently by the different groupings, classes, and cultures. Don’t forget we are in the middle of a war. Some constitutional conventions and state legislatures were literally being chased around by invading British armies and navy. Virginia was one, Massachusetts, South Carolina, New York and Pennsylvania were others. Loyalists were in open rebellion and forming militia units, or migrating to British held territory–and arguably a goodly number of folk just wanted to not be run over by all this political change, violence, and taxes to pay for this change and violence. Others were madder than hell.

In the discussion below we will first describe the “politics”, personalities. and the process that underlay the first Virginia Constitution. Then we shall consider the finished product, with a focus on the key institutions and relationships specified in our previous discussion. We shall then follow up with a consideration on the impact of the first constitution on Virginia’s Interrupted Revolution, and assess the legacy of that in terms of future events. Finally, we shall conclude with an ideological expose, reviewing the impact of the ongoing revolutionary fervor/stereotypes, and reference the clash of Whig, Landed Aristocracy and Egalitarian ideologies on the legislature and executive in particular. We shall observe that since much of these impulses were moved to the convention’s margins, the impact was lessened but the sword of Damocles would play into the future.

 

the 1776 Virginia Constitution: 

the First Constitution, 1776

What was truly outstanding was ability of the Tidewater Royalist Oligopoly–excuse me Virginia Founding Fathers–to seize early control over the dynamics of Virginia during the drive to revolution and independence. They successfully “managed” the transition from the colonial royalist policy system by creating their own parallel government–a rump offshoot of the House of Burgesses–asserting its legitimacy of being the state’s representative body entrusted with republican “people’s sovereignty”. This rump and self-designated derivative from the House of Burgess broke away when the Governor adjourned the House. Meeting at Raleigh Tavern it simply asserted it was the leader of the colony’s (at that point) loyal opposition. From there it charted its own path, a path, the Four Conventions, that led to a desire for Virginia’s autonomy, working in conjunction with like-minded colonial movements in the other colonies, and finally to the assertion of actual independence from Great Britain, an independence that could only be won in a war. As such the rump-Burgesses entity was a parallel government to the formerly sovereign royal colonial policy system. By the mid-1776, with the royal colonial system evicted from most of its physical presence in the colony, a Fifth Convention, with expanded membership to mirror that of the still-adjourned House of Burgesses, was tasked with the decisions to create the independent “Commonwealth” (state government) a new sovereign government for Virginia.

 

The final, Fifth Convention, was entrusted with the responsibility to write the Constitution. The method of selecting delegates to the Fifth Convention was far more democratic than the previous four in which the Rump Burgesses carefully managed who was elected or sent to the next Convention. In the Fifth Convention a more traditional state-wide election was held.In accordance with colonial practice, representation  (two delegates) from each county were chosen. Since Virginia’s counties contained widely disparate numbers of residents (including slaves and women above the age of eligibility), voting was restricted to white, male freeholders over twenty-one. Accordingly, representation was not based on population. Counties, BTW, determined who was a freeman, i.e. owned land and paid taxes for the required residency period, and the County Sheriff conducted the election. Sheriffs presided over the ballot box in a public building or Anglican Church, and determined when voting was officially over. The Sheriff counted the votes and sent the results to the Legislature for its verification and formal approval. Voting itself was by “voice”, not by ballot, and the voice vote was recorded by a clerk. The “voice” vote was heard by all who were present.

Property ownership by residents varied by county, of course, but in coastal Tidewater counties, a majority of all counties, plantation owners dominated the election franchise, if not directly than indirectly. Less true of Piedmont, only the few “western” Blue Ridge and Shenandoah counties then in existence did freeman include large numbers of yeoman households and property-holding middle-class? Because the colonial method of forming new counties entailed an application from an existing county to “split off” a new county from itself, a new county had to receive support from the older county if its request to form a new county was to be approved by the state legislature. Western counties were in 1776 quite large, and in that year a number of new county requests were in process, but suspended, of course, because the House of Burgesses was adjourned. The Fifth Convention therefore used the existing larger western counties as the unit of its representation–hugely depreciating the one-man, one-vote link and creating the malapportionment described by Jefferson.

 

Today we would call Virginia malapportioned, possessing nothing like one man, one-vote. That malapportionment did not go unnoticed at the time. In a critique of the Fifth Convention, Thomas Jefferson calculated that “nineteen thousand men, living below the falls [Fall Line]  … possess half the Senate and want four members only of possessing the house of delegates“. Between the Blue Ridge and the far reaches of what would be Kentucky and West Virginia (then of course part of the state of Virginia) 32 delegates were elected out of 149, and 4 senators out of 24. The Tidewater sea coastal regions (this excludes the Piedmont) elected  71 delegates and 12 senators of 145 and 24 respectively [5]. The Fifth Convention was not representative of the population of adult white males who owned property–never mind its exclusion of slaves, women, and adult white males who did not own property. The electoral franchise was managed by county government officials, appointed and supervised by the former House of Burgesses.

Counties which had experienced intensive in-migration over the last few decades were in 1776 disproportionately concentrated in its few large western counties. Accordingly new ethnic groups such as the Germans and Scots-Irish were almost gerrymandered–concentrated in a relatively few counties, and numerically dominated by representatives from the Tidewater, southeast coast, and Piedmont. There were 132 delegates, and only 18 were from the Shenandoah, West Virginia and Kentucky geography, where with a few exceptions (Patrick Henry for one) voters reflected values, beliefs and expectations different from the Tidewater/Piedmont royalist plantation owners.

Left outside of this cultural fabric were the new migrants into Virginia. The Germans, Huguenots, and Scots-Irish–the Tom Paine’s {who would die a Federalist fighting the Democrat-Republicans of all things]. So too were the descendants of Virginia’s former indentured servant–the mobile, dispossessed. For Jefferson in particular, they could not be left outside of the new revolutionary policy system–as the “Williamsburg “monsters” seemed hell-bent to do. That they would embrace Pennsylvania’s wildly open franchise was unlikely either. Minimal property requirements would ensure that the optimism of the more radical revolutionaries like Sam Adams whose “instinctual egalitarianism, Adam’s faith in the ultimate good sense of the common people” rested upon a “stake” in the system in which they voted [6]. But if Jefferson was typical of his Western Piedmont generation were more inclined to a one eligible voter– one vote apportionment. Jefferson’s critique of Fifth Convention malapportionment, reflected the geographic distribution of the eligible electorate. Representative “republican” democracy in his mind did not require an open franchise. It too had an economic dimension.

the Fifth Convention and the Making of the Constitution

In May 1776 the convention appointed from its membership to write a draft of the constitution for debate and approval of the entire body. George Mason, one of Washington’s closest friends, a adjacent neighbor who was sympathetic to his Patowmack Canal venture was its leader and principal author, but others such as Madison, Patrick Henry, and Edmund Randolph were also meaningful participants. Thomas Jefferson and John Adams submitted their ideas to be included in the draft. The committee believed their task also included a written “Declaration of [Individual] Rights, along with a more traditional institutional-laden constitution. The former was clearly an input derived from revolutionary politics of the time, and it was meant to be a formal codification of what the French would later call the ‘rights of man”. The guarantees included in Mason’s Declaration were freedom of the press, trial by jury, religious toleration, free and regular elections, and asserted Americans had natural rights

In it were to be the core rights of what today is called “popular sovereignty”–that all power lay in “the people” whose rights formed the foundation for a republican democracy. A brief explanation of the Declaration’s relationship to the Constitution is crucial. For that we leap ahead twelve years, to 1788-9 when the Federal Constitution was struggling to be approved by the thirteen states. Mason was Virginia’s principal advocate for individual rights and popular sovereignty. Earlier, in 1774 he had secured the approval by the Fairfax County Court of the “Fairfax Resolves”. Drafted by Mason and Washington at Mount Vernon, the two secured the Fairfax County support and required their delegates to the Fifth Convention to support them. The Fairfax Resolves …”laid down the fundamental principle of the people’s being governed by no laws to which they had not given their Consent by Representatives freely chosen of themselves”

Declaration of Rights

The 1789 Federal Early Republic Constitution created by the Constitutional Convention did not include a Declaration of Rights. The Federalists who led the approval  movement for the Constitutional Convention draft opposed the Bill the Rights. A public outcry followed across the states during the approval process for our constitution. The outcry was led by George Mason–who is regarded as the most prominent of these Anti-Federalists–others such as Patrick Henry, Sam Adams and Massachusetts’s Eldridge Gerry (of gerrymandering fame) and state approvals were made contingent on Congress approving an equivalent to the Declaration of Rights. It did and today the first ten amendments to our Constitution is referred to as the “Bill of Rights”. James Madison, a member of Mason’s committee was the principal author of the federal Bill of Rights. In any case, the Declaration of Rights and the Constitution were considered in the Virginia deliberations as twin elements in Virginia’s first Constitution.

Mason is deservedly considered a Founding Father, but as a major slaveholder (who was as close to an abolitionist as a Virginia plantation owner could be) he has proved no favorite of academic biographers or Broadway playwrights. Like most of Virginia’s Founding Fathers, he has dropped off the contemporary map. It didn’t help that in the 1780’s Mason, if anybody, was considered the principal leader of what today are called “anti-Federalists”–which seriously strained his relationship with Washington. Nevertheless, it was Mason who drafted the first version of what we now know as the “Bill of Rights”, the first ten amendments to our present-day Constitution. His Declaration created a mountain of enthusiasm across the thirteen colonies, and many states imitated it in their own constitutions. Seven of the subsequent state constitutions included a Declaration of Rights into their state constitutions, following Virginia’s lead. Vermont, the fourteenth state did also. In later modules we shall return to him in the 1790’s; Mason was a foundational thinker who personified what we today call “states’ rights”.  John C. Calhoun, perhaps the individual most remembered for that stance, acknowledge his debt to Mason. On a more favorable note to other of my readers, Jefferson paraphrased the first article of the Declaration in the opening lines of our Declaration of Independence.

 

 

Mason was instructed by the Fifth Convention, as the de facto drafter in a committee set up to write a draft of the Declaration of Rights and the Virginia constitution and present it to the Convention for its consideration. Working out of the infamous Raleigh Tavern Mason was its principal (but not sole) author. On presenting formally the committee draft of the Declaration of Rights (on which Thomas Lee and James Madison were also important contributors), the debate on its opening lines was intense: “all men are born equally free and independent” was intense. Knowing of Mason’s long-standing disgust with slavery, and his frequent insistence that importation of slaves be ended–and that slavery should therefore die out over time, conservative slaveholders, resisted and only Madison’s timely addition of the phrase “when they enter into a state of society” (became freed slaves) secured its passage in June 1776 by the Fifth Convention.

The 1776 Virginia Constitution limited the electorate to “freeholders”–freed men (not slaves) who owned land (not renters, leaseholders or sharecroppers); a period of residence and payment of taxes was also required. Jefferson, in his “Notes on the Virginia Constitution” asserted that “the majority of men in the state who pay and fight for its support, are unrepresented in the legislature, the roll of freeholders entitled to vote, not including generally the half of those on the role of the militia, or of the tax-gathers” [7].

Simply put the 1776 Virginia Constitution would make no mention of slavery. Its Declaration of Rights, however, simply began with Mason’s Article I phrase “All men are by nature equally free and independent”–with no qualification such as “freeman”. Yet there was no affirmation of Virginia’s peculiar institution to counter the Declaration’s ambiguous declaration–save limiting the franchise to “free men”. The issue was noticed at the Convention, but Madison used his magic and it did not figure in the final vote. Slavery was simply incorporated into the Virginia revolutionary war statehood-nation. Delaware had a similar situation with women’s rights–it used the word “people” in its Declaration–women being normally considered as “people”, did they enjoy the rights granted to all people in that state-nation? That issue was finessed as well. We should not think that revolutionary war decision-makers were not aware of the irony in their assertion “all men are equal” and “power resides in the People”–it was a bridge too far in 1776’s early days in the war of Independence.

 

The final Virginia constitution draft was written by Mason in June 1776 as well. In it, Mason defined Virginia as not a state, but a “Commonwealth”, which in his mind meant that all power, i.e. sovereignty, resided in “the people”. The draft included the super-legislature and the extremely weak governor outlined above as well as the definition of freeholder as eligible for the franchise. Jefferson had mailed in some drafts of his own, and Madison was able to secure some changes in the Convention debate that followed, but the essentials of the Constitution that was approved at the end of June 1776 retained much of Mason’s original draft. The vote, in fact, was unanimous.

To vote responsibility–and avoid the corruption of venal “court” elites–the electorate needed a commitment to the system, but more critical needed to be independent. They needed to own their own land. That the requirement of land ownership removed the majority of potentially eligible voters from the franchise–and most certainly resulted in the election of different types of office-holders and representatives–was understood and accepted. What was left unstated thus far, but central to our economic development focus, was the burden that placed on land ownership and the growth of American democracy. To expand the electorate, to make us more democratic, the masses needed the opportunity to acquire their own land. That could only be achieved by land development of western, trans-Appalachian and peripheral territories. Jefferson’s “yeoman farmer” mass-based electorate was “aspirational”; it required, at least elevated homesteading and land development as central to our new Early Republic political, and economic, development.

 

We could have described the Virginia policy system as based on “legislative supremacy”. This requires a new way of thinking for most of us born and bred in a system of three separated branches check and balanced. We also tend to “organize” state (or federal) history by gubernatorial (presidential) administrations, but in Early Republic revolutionary war policy systems, the single most important leader was usually the Speaker of the Lower House. Strong governors and gubernatorial administrations are a 20th century theme that we insert to render our discussion digestible to the reader but it does involve a level of distortion that the reader might expect more leadership from the governor than the constitutional office could support. In 1776, one elected a governor in whom “the people” could trust not to replicate the tyranny of King George–in many ways quite the opposite of what we expect today. One definitely did not place in that office a person that would dominate the policy system, or assert primacy over the legislature. Few governors will be given the power of veto. Many were to be elected by the legislature as was Virginia’s.

The Legislature was considered as being the representative expression of the “will of the sovereign people” on which the revolutionary policy system rested.  Revolutionary War state policy system typically created an extremely weak governor, chosen by the Legislature. In that all state revolutionary war constitutions were created during a period of struggle against English royal authority (tyranny they called it), the Governor’s office was the scapegoat and was the institution most feared as capable of replicating the tyranny of the King in state policy-making. In that a court system did not exist without legislative action, and judges were appointed only by the legislature, and it was unclear as to what elements of the English law would be transferred into the new revolutionary war policy system, we can see how the three branches of government were somewhat fused in the Pennsylvania state constitution, and lacking such checks and balances, the Legislature was the place in which policy-making was confined. Super legislatures therefore (1) were the branch with the clearest tie to the sovereign people; (2) were dominant of the three branches; (3) were empowered with most policy-making functions and powers; and (4) were checked only through elections.

Virginia created the nation’s first “super-legislature”.

The Legislature created/approved by the Fifth Convention was divided into a Lower House of Delegates, and an “upper” house, the Senate. The House of Delegates was the body closest to the basic unit of Virginia governance–the counties. Each county sent two delegates to the Lower House, and it alone of all the other political structures were directly elected by the “freeholders” in each county annually. Delegates to the lower house were required to possess wealth equaling 1,000 pounds. The Senate on the other hand was composed of 24 senators for four years (after a rotation system to ensure replacement of one-fourth of the Senate annually was in place, each elected from a “district” whose electors were separately elected within and between counties and possessed wealth equaling 500 pounds,  . A Senator was required to possess  wealth of 2,000 pounds. Jefferson in his critique of the Constitution made reference to the reality that despite enlarged election districts the same electorate elected both Delegate and Senate in the same election: “the Senate is by its constitution, too homogeneous with the house of delegates” [[8]. In both instances, the Sheriffs of the counties will conduct the elections as described earlier. The Constitution then requires ALL legislation must originate in the Lower House, to be approved or rejected by the Senate. The governor was not given a veto. “Money” bills (appropriations), however, could not be amended by the Senate–just approved or rejected. The two houses shall by joint ballot appoint judges to the courts of Virginia–which judges shall hold office for life or good behavior, as determined by the Legislature. The Governor could nominate an individual to the Legislature, but subsequent approval still was retained by the Legislature. The Legislature alone possessed the power to amend the Constitution.

The Governor, unlike the Lower House, is checked on all sides. He is chosen by a joint vote of Legislature for a one year term, can be elected without interruption for four years, before being “termed out” for at least one year. He had no veto and no right to initiate legislation. The Legislature determined an “adequate but moderate salary” for him. With the advice of a Council of State (see below) he could “exercise the executive powers” of the state “and shall not under any pretense exercise any power or prerogative by virtue of any law, statute, or custom of England“. The Council of State, also called the Privy Council consists of eight members who are elected by the Legislature, and may consist of members of the Legislature as well as others, except ministers of a church. The Council shall elect its own President who shall act as Lieutenant Governor. The Council has its own clerk, can set its annual salary, and is bound by an oath of secrecy. An annual rotation of two members is required. Thus, in Virginia there was an office of governor who was formally conceded authority to “exercise executive powers”, but only with the advice/consent of the General Assembly or Privy Council/Senate. In the next module, we will discover Pennsylvania would go one step further–it created no governor–and all power was held by a unicameral legislature. The first months after the Declaration of Independence were truly an intense emotional and radical period–state constitutions beware.

As Virginius Dabney observes: “The constitution drafted in large part by Mason exhibited a sensitivity on the part of Virginians to the dangers of executive tyranny. Having just launched a revolution against a tyrannical British king, they were in no mood to provide machinery whereby Virginia’s own chief executive might seize despotic power [10].

And here comes the constitutional “big deal”, Virginia’s silent 800 lb. gorilla which sat in the room for the next eighty-five years!: local government! The Governor with the advice of the Council can appoint county “justices of the peace” (remember to think county legislators) as they become vacant–but his appointment was limited to those nominated by the county court. But the 1776 Constitution without mention incorporated the then occupants of the county courts–and they remained there until the next election. After than election they were appointed for life. The same for County Clerks who then were converted by the Constitution to a lifetime tenure, limited only that it was contingent on an undefined “good: behavior. County Courts appointed the Sheriff and the Constables—-and county nominations limited his choice of justices, sheriffs and coroners. Once in office, a justice of the county court and the clerks of the court continue for life/resignation or good behavior. Sheriffs owe their continuity to the County Court. Judicial “judges” were appointed by the General Assembly.

As such the Virginia county government enjoys considerable autonomy, and its power underlies the election of members to the House of Delegates and Senate. Why? “Indeed, the county court was so strongly entrenched as an institution of local government that it was carried over intact into the new era in 1776 and sanctioned only by implication in the constitution of that year” [9]. The opportunity for a state-wide downward shift of policy leadership to local county courts is evident–especially if the latter is institutionalized over time by a compliant electoral franchise. The power of the county courts over the militia–very important in this age–is checked minimally by the governor, until they are “mobilized” when they are directed by the mobilizing authority (Governor)–subject to advice of the Council of State–“advice” in this period means “consent”. Read the next module and see the implications of that! In essence, the local government “was the dog”, and the state government “the tail” of Virginia decision-making–or said more formally by Jackson Turner Main “created a self-perpetuating oligarchy, made powerful by allowing justices [county legislators] to sit in the [state] legislature … organically connected  with the major instrument of local government” [11].

This is Virginia-style Early Republic democracy; and in Patrick Henry’s immortal words, if this be democracy make the most of it.

Economic Development and the Constitution

Lo and behold, there among the sections devoted to the establishment of America’s first state government was a major economic development project, smack dab in the constitution: Washington’s early canal initiative, the forerunner of his 1780’s Patowmack canal. Briefly described in our opening module, Washington had pursued it just as the drift to Revolution became a full-fledged rush in 1773- 74.  In Mason’s state constitution it was included as an Article.

Section 22 of the Virginia constitution started out by ceding land claims by Virginia contested by Pennsylvania and Maryland to those two states–with one exception: “the free navigation and use of the rivers Potowmack and Pohomoke with the property of the Virginia shores … and all improvements which have been, or shall be made thereon“. That had been a matter of great issue when Washington had attempted his first Virginia canal projects just a couple of years past. The inclusion of land rights and free navigation into the state constitution would be critical to Washington’s ability to pick up the project upon his return to civilian life in 1783.

In the same section, the constitution reversed the British Proclamation Act boundaries, and asserted that Virginia’s boundaries in fact were those set by the land grant of James I (1609)–extending Virginia into the totality of what is today West Virginia and Kentucky. The section also asserted that no effort to form an independent state in those territories could occur without formal approval of the Virginia legislature. Finally, cutting the knees out of roving Virginia land development companies (Mason was a participating member of the Ohio Land Company), purchase of Indian lands could only be made by the Virginia legislature as well. The combination of these projects and issues were the principal substance of Virginia’s economic development strategy at the time. Interestingly, unlike several states that followed, the Virginia constitution contained no provision for education, either K12 or university–but backhandedly providing support that economic development enjoyed more consensus on its policy agenda.

As Tarr observes, Revolutionary War period state constitutions did emphasize either”the scope of government power” not the relation of the state to economic activity. The great bulk of their attention was devoted, he asserts, principally to the first concern “the intrastate distribution of political power”. Virginia then was an outlier in the economic development regard. Tarr goes on to state that this over concentration of intrastate distribution of political power “was not for lack of controversy over the exercise of state power or over economic policies … Rather it was simply that these political issues did not become “state constitutional issues. The victors in state politics rarely wrote their economic prescriptions into state constitutions” [12]. Washington apparently did.

Long Live the Oligopolistic Colonial Policy System: the Old Dominion or the New Dominion?

Accordingly, as we move on to describe the more specific features of the revolutionary war policy system created by the 1776 Fifth Convention, the reader ought to sense the argument advanced in the preceding paragraphs. The core of the colonial policy systems (economic base, prevailing institutions, and economic activity), and the de facto control over its local governance by a core of Tidewater royalist plantation aristocrats was replicated, simply incorporated, or built upon–and extended into the Early Republic revolutionary war policy system. Stripped of  the executive power of the governor, a semi-supreme legislature-dominated policy system was not meaningfully altered until 1851–seventy-five years later. Obviously, it was not made “modern” until the Reconstruction period. In that a number of Early Republic “new” trans-Appalachian states would model their future policy systems after elements of Virginia’s, then this system we are describing assumed an importance that must be appreciated. That North Carolina would replicate key elements of its neighbor, as did Maryland, we can better understand how the “Tidewater” political culture and policy system represented a distinct approach to democracy, governance, and policy-making through the Early Republic period. When Kentucky borrowed large portions of it, the Tidewater had crossed the Appalachians and proceeded to the Mississippi River. There is a larger lesson hidden in this module.

 

The point of the previous modules was to outline the inheritance of the colonial period in the formation of Virginia’s first Revolutionary War/Early Republic Policy System. The initial system did not spring out from nowhere, and it persisted. It is worth further note that many critical deficiencies mentioned in this module, including most of those listed by Thomas Jefferson, were also ignored in 1831–and were not in fact rectified until another constitution in 1851. Thomas Jefferson and the Virginia Dynasty that followed him rooted their success in the stability of Virginia’s policy system. Surprisingly or not, the past Tidewater colonial policy system–stripped of its royal governor and its Royal Council converted into a “Council of Advisers”–found its way into the new revolutionary war policy system. The power of the Tidewater/Piedmont aristocracy was preserved in its essentials in the 1776 Virginia state constitution.

The system produced at the Fifth Convention, as will be apparent, different noticeably from that produced a few months later in Pennsylvania. Virginia was the most populated and oldest of the colonies–a leader equal to Massachusetts in the drive to independence and war. Virginia, despite its dominance by a plantation aristocracy was not lacking in revolutionary spirit. Rather the question is whether it would allow its republican tendencies to constrain or, perish the thought, overthrow the colonial government heritage, a heritage that made possible the dominance of its plantation oligopoly?

One might not forget this constitution was written in the midst of the war’s opening months, with seacoast towns/cities and capital vulnerable to raids launched from a mobile British fleet. The royal governor of Virginia was headquartered in a small fleet off of Norfolk when the Virginia’s constitution was being constructed at Richmond–which was only a bit safer being more inland. So Virginia delegates are paving new ground, watching the river for British ships, and in the midst of a Loyalist insurrection, as they attempt to recruit and mobilize a Patriot army–that’s a lot on their plate. Both applied to Virginia in 1775-6–as they did to Pennsylvania. But despite these pressures, the past remained a formidable influence over what was to be Virginia’s future.

In the next module we will explore the new Virginia Revolutionary War policy system during the Revolutionary War, and carrying it forward to 1789 and the new Federal Constitution. In line with our hindsight determined expectations, the characteristics of the colonial system will reappear–dwarfed to some degree by the horrendous fiscal crisis and the reality Virginia was a battlefield state in the midst of a Loyalist civil war. The absence of a royal governor, or any effective governor at all, will compound Virginia’s misery. The reader no doubt is now aware, the policy system we will be describing has flaws and limitations, but perhaps even more than that.

 

 

Footnotes

[1] G. Alan Tarr. Understanding State Constitutions, p. 66, quoting Donald S. Lutz, Popular Consent and Popular Control; Whig Political Theory in the Early State Constitutions (Louisiana State University Press, 1980), p. 164.

[2] G. Alan Tarr, Understanding State Constitutions (Princeton University Press, 1998), pp. 4-5

[3] Jackson Turner Main, the Sovereign States, 1775-1783 (J. Franklin Watts Inc, 1973), p. 143

[4] G. Alan Tarr, Understanding State Constitutions, p. 62

[5] Thomas Jefferson, Notes on the Virginia Constitution in Thomas R. Morris and Larry J. Sabato, Virginia Government and Politics (University of Virginia, 1998), pp. 11-12

[6] Pauline Maier, the Old Revolutionaries (W. W. Norton & Co, 1980), pp. 182-3

[7] Jefferson in Thomas R. Morris and Larry J. Sabato, Virginia Government and Politics (University of Virginia, 1998), p.1 1

[8] Thomas Jefferson, Notes on the Virginia Constitution in Thomas R. Morris and Larry J. Sabato, Virginia Government and Politics (University of Virginia, 1998), p.12

[9] Weldon Cooper, Virginia Local Government, 1776-1976, in Thomas R. Morris & Larry J. Sabato, Virginia: Government and Politics (Weldon Cooper Center for Public Service, University of Virginia, 1998), p.377

[10] Virginius Dabney, Virginia: the New Dominion (University Press of Virginia, 1971, p. 137

[11] Jackson Turner Main, the Sovereign States, 1775-1783, pp. 158-9

[12] G. Alan Tarr, Understanding State Constitutions, p. 65

[13]