If the right to liberty is alienable, whether despotic rule is just or unjust depends on the actual set of agreements between the people and their ruler.
About the middle of the morning on Monday, the sixth of May 1776, 45 men assembled at the Capitol in Williamsburg, Virginia. They were members of the House of Burgesses, elected back in the summer of 1774. Having entered the chamber of the House, they sat, silent. Elsewhere in the Capitol there were no signs of the royal governor or his council. Soon the Burgesses got up and went back outside. There they met others who, joining them, reentered the chamber, this time as delegates to the fifth and final Virginia revolutionary convention; this time carrying instructions from the people in their home counties calling on them to instruct Virginia’s delegates in the Continental Congress to declare American independence and to draft a constitution for Virginia.
While such a launching, this little-remembered ritual, may not seem so much to many in the thrall of the apotheosis of the 1787 Constitution, it remains a bright metaphor to illustrate the seamlessness of the transition from colony to country in America generally and in Virginia. This vivid drama of a departure joined with that of a prospect shows how far these Virginians had come since April 1774, even as it puts in relief just how significant the next two months, May and June of 1776, would be, culminating as they did with Virginia declaring its independence, establishing a bill of rights, and, two weeks later, completing a written constitution.
These instructions from Virginia counties also concerned the prosecution of the War for Independence that had escalated since the battles of Lexington and Concord a year earlier, and more recently, the burning of Norfolk. All of these variegated county instructions, of course, went to the question of matters of state. In May 1776, as well as in the previous four conventions, delegates to an extra or illegal colonial revolutionary convention met to conduct the business of an independent country before Virginia was independent. For the past two years, it had been dawning on the American colonists that they were and had been countries within a colonial shell. By July 1776, they had shed that shell, turning their attention to preserving and protecting what they considered was their country, states in a European sense. This period between the evaporation of royal authority and the establishment of the independence of the American republics had been a constitutional void, and the Founders knew it, many marveling that Americans had resisted invitations to anarchy.
While Virginia’s declaration of independence and its constitution may have preceded those of most other colonies, all, each after their own sense of imperatives, were engaged in the same momentous undertaking of establishing independent republics. Other colonies would soon establish their new constitutions while Rhode Island and Connecticut, remarkably, chose to maintain their 17th century colonial charters.
Here was revealed one of the most significant contributions of the first Founders, that great inheritance of their colonial experience: the written constitution. Jefferson Powell in Languages of Power (1991) recognized this, citing the claim of St. George Tucker, the Virginia supreme court justice and William and Mary professor, that before the American Revolution, no one really understood the most significant aspect of constitutions. Tucker asserted that
What the constitution of any country was or rather was supposed to be, could only be collected from what the government had at any time done; what had been acquiesced in by the people, or . . . what had been resisted by . . . them. Whatever the government or any branch of it had once done, it was inferred they had a right to do again.
It was Tucker’s conviction that America’s first Founders had changed all that with their written constitutions:
With us, the constitution is not an “ideal thing,” but a real existence: it can be produced in a visible form; its principles can be ascertained from the living letter, not from obscure reasoning or deductions only.
A striking contrast, this description of the rule of law coming from a world we have lost.
Given Virginia’s political, economic, and geographic prominence, what transpired in the crafting of its constitution, then, became a window into the American transformation from British colonies to independent republics, all allied with the Continental Congress, that 1774 political invention of the colonies that was supposed to negotiate with the Crown and Parliament, and then, when the negotiations failed, coordinated mutual American efforts in the war to confirm constitutional and diplomatic independence from Great Britain.
This account may well not square with those of others who view the timing of the birthing of American nationalism differently. Some, of course, have not stressed timing. Hans Kohn comes to mind, particularly his extended 1957 essay American Nationalism: An Interpretive Essay. Kohn and other political theorists emphasized that American nationalism was an idea, something strikingly different from the various material elements of time, place, culture, and people attributed to the development of nationalism in Europe.
Still, for Americans, even some given to applauding Kohn’s perspective, there has been a question of timing, a chicken and egg question, one incubated by the transit of American history. Here again is one of those American anomalies. In American history, nation and state have meant different polities, the nation referring to that which the first Founders called the general or what later people came to call the central government, and states, referring to the former colonies. I am not at all sure when it became fashionable to claim that the American nation appeared before the American republics. But I am familiar with one who certainly popularized it.
Times change as do political interests. The combination often plays hob with historical arguments. Given that Americans have been fond of their various foundings, striving to discover the origins of the American “nation” was almost bound to take on new meanings that suited contemporary interests.
Nowhere was this more evident than the inventions of Abraham Lincoln. First, in his 1861 inaugural address, Lincoln claimed that the 1774 Continental Association of the First Continental Congress launched the United States: “The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774.” Then on July 4, 1861, in his fateful message to Congress, Lincoln, plumbing deeper the uncharted waters of historical causation, claimed that
Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence.
A more proper plumbing job might be an inquiry into the unintended consequences of these fictions. Many during the 20th and 21st centuries have been loath to question Lincoln’s assertions whose comments seemed more fitting for Texas which chose to be annexed into the United States in 1845. Note well: no superior constitutional power shaped or played gatekeeper for any of the American colonies as they became independent republics.
Many have claimed that the occasion for this American constitutional paradigm shift towards independence, surfacing as it did after nearly 100 years of what became known as a period of salutary neglect, followed hard on the 1763 Treaty of Paris. When in March 1765, Parliament, struggling to pay for the French and Indian war and to organize an expanded American empire, passed the Stamp Act, it backfired in America. Parliament seemed to capitulate to the colonists’ protests when it voted in 1766 to rescind it. At the same time, however, it passed the Declaratory Act.
This statute, according to John Phillip Reid, created a new constitution for Great Britain and the Empire, a constitution that the Americans would ultimately deny, a constitution that in part was encapsulated by these words:
the King’s majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.
For Reid the Declaratory Act signaled the entrance of a second 18th century constitution. The British constitution became a throwback to the Stuart constitution of unchecked prerogative, now in the hands of Parliament, not the Crown. It was against this constitutional assertion of power that the Americans revolted—tax policies and land policies being ancillary to this fundamental conflict. It was on this rock that the Empire foundered in the years after 1773, when Parliament’s reaction to the brewing of Boston Harbor made it imperative that Americans articulate their constitutional principles. Regarding the English Constitution, they did so by upholding the elements of the late 17th century English and post-Glorious Revolution constitution that Parliament jettisoned after the French and Indian War.
The constitutional implications of this became explosive in the spring of 1774 when Parliament responded to Boston. In an intemperate assertion of its superiority, Parliament enacted the infamous five Intolerable or Coercive Acts. Three punished Boston and Massachusetts, closing Boston harbor, transforming Massachusetts into an adjunct of the Parliament and King, and altering the system of criminal justice. The fourth act strengthened quartering acts.
Finally, with the Quebec Act, the Parliament by statute, not the king granting a royal charter, established a permanent government for the recently conquered province. American colonists protested this reinstatement of French civil law; the recognition of Roman Catholicism; and because Catholics could not vote, the grant of arbitrary power to the Governor of Quebec. Most significantly, Americans deplored the extending of Quebec’s boundaries, which nullified significant parts of the charter claims of three American colonies.
Since the Stamp Act controversy, nothing had happened that drove Americans to such a combined reaction. The flare-ups during that interval, and there were a number of them, left a pall of political and constitutional suspicion and misunderstanding; and so the years after the French and Indian War became a constitutional gestation. In each colony the relation between the Crown, the Parliament, and the colony began in new and sometimes subtle ways to unravel.
Quietly and often not so quietly, more and more American colonists began to look to what they considered to be their distinctive past. These were the years that John Adams in 1818 would claim that “The Revolution was effected before the War commenced. The Revolution was in the minds and hearts of the People.” These sentences, popular as they have rightly became, deserve a careful look. They suggest many things, all invitations to walk more slowly and carefully with those who lived through those years, to understand better the world they believed that they had inherited, the world they vowed to protect.
If one travels to any of the American colonies during those fateful years, I believe he will find a people more and more aware of their own histories, histories that were varied and complex in a number of important ways. Their stories might begin with the people who came first and what the Founding years were like. Then they might turn to the different elements of flourishing.
Americans at some point began thinking of the Atlantic Ocean as a protective barrier. Long accustomed to cherishing their familial, social, economic, spiritual, and legal ties with Great Britain, Americans took notice more and more of just how different they had become in their new American space. Whether it was the growing appreciation of the flora and the fauna; the future potential of this verdant space; the agility of new law to fit new realities; the surprising aspects of new social ordering; or the diversity of Christian belief and faith, these people were coming into their own, all the while, understandably, some not knowing quite what that might be.
They knew enough to say to themselves and to others, when they mentioned where they came from, to say “my country” when mentioning their colony. The American colonists by 1774 had a home, a newly valued home, one that was distinctive in each colony. It was here that Independence as John Adams remembered was born. And it was here that the idea of combining with other “countries” to form a useful albeit limited union was born between 1774 and 1776.
If members of Parliament assumed that American colonists outside of Massachusetts would not react to the Intolerable Acts, they were mistaken. News travelled fast, and American response north and south was immediate and determined. While the volume of political squawk varied from colony to colony, all of the colonies viewed the Intolerable Acts as flagrantly unconstitutional and as an assault on well-established American liberty. Resolved to resist, colonies, resorting, among other things, to the political actions they used to oppose the Stamp Act, determined to send representatives to Philadelphia in September for what became the First Continental Congress.
In Virginia, the fateful move to independence began as noted above. The news from Massachusetts arrived; the Virginian patriots called for a day of fasting and prayer; Governor Dunmore demurred and prorogued the House; the Burgesses adjourned; and a rump session meeting in the Raleigh Tavern called for a special convention come August, the convention that would be the first of five.
Virginia, like all the other colonies, has received all sorts of attention from historians, a testament to American devotion to the preservation of the public record and to the telling of their stories. For a good start, I commend Kevin Gutzman’s 2007 book, Virginia’s American Revolution: From Dominion to Republic, 1776 to 1840, that begins with a fine general intellectual, political, and constitutional treatment of the these fateful years of 1774 to 1776.
Buttressing this and other good works are primary sources of great power and scope, some manuscript such as the filming of the British Public Record Office, and much printed. Starting in the years after World War II, the publication of new letterpress editions of the letters and papers of Jefferson, Pendleton, Mason, Madison, and Washington, among others, gave renewed life to Virginia Founders.
There is one other source, one that is special for any consideration of the birthing of the commonwealth: the eight-volume collection containing some 3,400 pages launched in 1973 and completed in 1983: Revolutionary Virginia: The Road to Independence, 1763-1776, initially the design and editing of William Van Schreeven. Here, among other things, are the most significant pamphlets; the resolutions; the official correspondence; purloined letters from Dunmore; the instructions starting in the early summer of 1774; the reports of the county committees of safety; military reports; and the operations of the Virginia Committee of Safety.
Even a cursory glance suggests that the two years between May of 1774 and July of 1776 were a grind, worse than a baseball season even when your team, like mine, ends up in the playoffs. I offer this metaphor to convey something that some narrative histories may not capture—the world of contingencies, the energy-sapping daily necessity to be on the alert as the season is one long, extended emergency. Note also that many new players were added to the roster. Finally, success was measured in by how much of the past was sustained in the present. In that sense, the Virginia Constitution became a ratification of the history of Virginia.
The exigencies of war did not suspend the framing of the June 12 Declaration of Rights and the Constitution completed on June 29. Remarkably these two documents, together, expressed clearly something many in all of the American colonies sought. As Jefferson’s friend John Page had insisted, anticipating St. George Tucker’s later comments: the constitution must preserve “the old.” And it did.
Virginia’s counties retained their central place; the new legislature was an articulation of what the House of Burgesses had become during the 18th century; the upper house was new, separate, and toothless, not unlike the new Governor; and the court system replicated the colonial system save for any appeals beyond the new Commonwealth. The limits on power extended in ways overlooked or intentionally nullified in the United States particularly after 1860: the Governor could not “under any pretense, exercise any . . . prerogative by virtue of any law, statute, or Custom, of England,” a capstone for a constitution of America’s first Founders.
The story of Virginia’s independence was and remains America’s story. Virginians declared themselves an independent republic. So did all the other British American colonies. So did the Declaration of Independence of the American Continental Congress. Each of these original countries had had a long and distinctive history. People in these new independencies called themselves Americans to recognize that they came out of the British Empire. More importantly American people understood themselves according to the names of their countries, their historic homes. These became the harmonizing sentiments of American citizenship. They willingly joined other Americans for defensive and diplomatic purposes in 1776.
Soon they would forge an alliance, the Articles of Confederation, a constitution designed to perpetuate the creation of the American countries they came to call states. It is here where the genius of American constitutional liberty came to life—in the diverse and decentralized yet united independence of 13 unique American republics. The Articles of Confederation contained the elements necessary to sustain this distinctively American constitutional liberty. As time would tell, the Constitution of 1787 did not. Nobody can blame Benjamin Franklin for not having warned them.
This essay was adapted from a lecture given at the Philadelphia Society’s Fall Meeting, 2015.