Unalterable Constitutions

Independence Hall in Philadelphia, Pennsylvania. By: Ferdinand Richardt.

As the constitutions of the states were implemented and executed during the Revolutionary years, the population began holding conventions for amendment of those constitutions, believing that “Legislatures were incompetent” to do so. Gordon Wood, The Creation of the American Republic: 1776-1787, 306 quoting Farrand, ed., Records of the Federal Convention, II, 91-93. In fact, James Madison believed that “it would be a novel and dangerous doctrine that a Legislature could change the constitution under which it held its existence.” Id.

Notably, Americans during the Revolutionary years did not have a concept of constitutions being “permanent and unalterable,” and to the extent some may have, “they possessed little knowledge of the means by which it was to be made permanent and fundamental.” Gordon Wood, The Creation of the American Republic: 1776-1787, 307.

In fact, each state’s constitution had a different approach. As Gordon Wood in The Creation of the American Republic: 1776-1787 explained: “The Delaware Constitution declared the Declaration of Rights and certain specific articles immune from any alteration, and, drawing upon William Penn’s old charter of government, made the consent of five-sevenths of the Assembly and seven members of the legislative Council necessary for any amendment of the remainder of the Constitution.” Id. at 308. Then, “[t]he Maryland Constitution could be altered only by the acts of two successive separately elected legislatures.” Id. However, “[i]n Georgia the Constitution could not be changed except by a special convention called by the Assembly after receiving petitions from the voters in a majority of the counties in the state.” Id. Then, the “second South Carolina Constitution, that of 1778, provided that no part could be altered without ninety days’ notice and the approval of a majority of both houses.” Id. In Pennsylvania, “a Council of Censors” was appointed “to inquire periodically into violations of the Constitution by the government.” Id.

Jefferson observed, in his Notes on the State of Virginia, “that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments.” Id.  at 309 quoting Jefferson, Notes on Virginia, ed. Peden, 125.

The underlying logic of the states and Jefferson was that constitutions were inherently superior, as explained further in The Constitution’s Superiority, and must thus be protected from being easily changed by any political body, particularly legislatures. See Gordon Wood, The Creation of the American Republic: 1776-1787, 309.

The Americans’ novel use of conventions to change constitutions of the states represents the American ingenuity in devising systems best tailored for the country. But also, the states’ various approaches to dealing with the amendment of their respective constitutions is another example of the benefit of having the states as Laboratories of Democracy.

These massive departures from the norm in the Revolutionary years helped create a system that provided more stability and sustainability than any other government previously known. It also set a precedent that a constitution would be a delicately preserved document, safe from the fluctuations in society and even any reverberations of those fluctuations in the legislatures. The early Americans made clear that, despite their different thinking, they would make every effort to perpetuate their constitutions.


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