The First State Constitutions, 1776–1783
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burdened with many deficiencies, managed to survive for forty-five years.
Its principal architect was John Jay. The Massachusetts Constitution of
1780, by far the most successful of all the State constitutions, has been
subjected over the years to numerous amendments, mostly dealing with
the suffrage. Still in force, it is the oldest in the land, and stands today as
a fitting tribute to the political genius of John Adams.
In general, our first constitutions contained three major weaknesses,
all of which were known and avoided in the Philadelphia Convention of
1787. First, they all failed to provide for an adequate system of separation
of powers. Most of them established three separate and distinct branches
of government, with no overlapping personnel; but the men who drafted
them thought in terms of a ‘‘pure’’ separation and did not understand the
need for checks and balances. As a result, political power tended to concentrate in the legislatures, which in turn often ruled in an arbitrary manner, tyrannizing over the other branches and oppressing the people, particularly disfavored minority groups. Jefferson addressed the problem in
his own State in his Notes on Virginia (1784). This concentration of government power in the popular assembly, he charged, ‘‘is precisely the definition of despotic government. It will be no alleviation that these powers
will be exercised by a plurality of hands, and not a single one. One hundred and seventy-three despots [the number of the Virginia legislators]
would surely be as oppressive as one. Let those who doubt it turn their
eyes on the republic of Venice—as little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought
for, but one which should not only be founded on free principles, but in
which the powers of the government should be so divided and balanced
among several bodies of magistracy, as that no one could transcend
their legal limits, without being effectually checked and restrained by
the others.’’
Second, all of these first constitutions, with the exception of New York’s,
failed to establish an independent executive. In most cases, governors
were appointed by and answerable to the legislatures, and their powers
were severely restricted. Even those governors who enjoyed a semblance
of authority found it difficult to protect their office because they lacked
sufficient means by which to check legislative encroachments.
Third, all of these first constitutions lacked a provision establishing