The Strategy For Achieving A Free Society In Early State Constitutions. Part 1: Pennsylvania 1776.
A contextual look into the nature of rights in early American society.
The Pennsylvania State Constitution 1776 is known to be “the most democratic” of all the early state constitutions.
The strategy for achieving a free society in the original Pennsylvania Constitution was the establishment of a fully empowered, republican assembly tightly melded with the people. As reflected in its original constitution, Pennsylvania’s government was a government of inherent authority; it mirrored the social attitudes of the community and aspired towards a sophisticated balance between individual rights and communal needs. The republican ideology emphasized the sacrifice of personal interests and the importance of virtue in a liberty enhancing community — knit under a social contract context. Thus individual rights in the Pennsylvania state constitution were principles, not guarantees; they were always balanced with the common good, and the empowered assembly was subject to reasonable governance because it was melded with the people.
The declaration of rights, positioned in the front of the constitution, was about the qualification of rights that emphasized the realization of the rights of others in the society. The qualification of rights, and not the alienation of rights, was within the social contract context, and the declaration of rights was directed to the empowered and trustworthy assembly. Within a pure majoritarian system, the assembly was trusted to protect the minority. The positioning of the declaration in the front made a social contract kind of statement; the notion that people were entering into a social contract, all rights were qualified by entry into society.
The subject matter and language of the declaration of rights are republican; there are no rigid rights, instead, there are principles that are always balanced with the communal good. Several provisions protect individual rights: rights of life, liberty, property, happiness, and safety, right to have religious freedom, and right against self-incrimination. Balanced with these individual rights are communal rights: the right to reform the government, the right to expect justice, moderation, temperance, industry, and frugality etc. These provisions are inalienable communal rights that aim to strengthen the republican form of government. The language in the declaration of rights declares that the rights are principles. The word “ought” is used instead of “shall” in provisions, with the intention to express that rights are not guarantees, they are principles that are always balanced with the communal good. “Ought” is not a command nor is it rigid, rather it is about how rights “ought” to be in trying to achieve a free society. The mixture of individual and communal rights and the use of the word “ought” indicates that the Pennsylvania constitution established a fully empowered assembly, majoritarian in essence and liberty-enhancing in intention.
The frame of government, as reflected in the Pennsylvania’s constitution was also republican in structure; it fully empowered the assembly. A unicameral assembly with a one-year term empowered the government so it could act efficiently and rapidly, but its authority was derived and founded on the authority of the people. A rule by 51% pure majoritarian government was subject to reasonable governance under the assumption that it would protect the minority. The executive power was not one person; it was a committee. The president of that council was elected by the by the unicameral assembly and only had a one-year term; and the council itself had a three year staggered term. Similarly, the power of judicial review was in the council of censors who were elected every seven years and their job, once every seven years, was to review any decisions that were made against the constitution. Since the council of censors only operated for a limited time, all the power was seated in the assembly. By empowering a trustworthy assembly that efficiently reproduced the will of the people, the original Pennsylvania constitution’s frame of government demonstrated structural necessities to maintain a republican form of government.
In its Declaration of Rights, the Pennsylvania’s constitution contained provisions important for communal rights as well as individual rights. Rights in this constitution were social contract rights, all were qualified upon entering into society. In the Frame of Government, the assembly was fully empowered to act efficiently and reproduce the will of the people. This constitution reflected the version of popular sovereignty, in which the fully empowered and paternalistic assembly was the proper presentation of the popular will.
Next post will provide an analysis of the Virginia State Constitution 1776.
