The King Was Gone. Who Had the Right to Rule?

LECTURE LEARNING OBJECTIVES

1. Explain why independence created a crisis of political legitimacy rather than merely a vacancy in public office.
2. Compare the Pennsylvania Constitution of 1776 and the Massachusetts Constitution of 1780 as distinct responses to revolutionary fears.
3. Distinguish legislative supremacy, constitutional supremacy, and popular sovereignty.
4. Analyze how constitution-making procedures helped separate the constituent power of the people from the ordinary powers of government.
5. Evaluate the Articles of Confederation and the Northwest Ordinance as historically intelligible products of revolutionary political assumptions rather than simple failures.

Introductory Framing

The Declaration of Independence dissolved allegiance to the British Crown, but it did not by itself create legitimate replacement governments. Colonial assemblies, courts, governors, and charters had operated within an imperial constitutional order. Once Americans declared that order tyrannical and invalid, they faced a practical and philosophical problem: by what authority could any new legislature tax, punish, conscript, regulate property, or compel obedience? The revolutionary generation had to transform resistance, committees, conventions, militias, and provisional governments into durable institutions without recreating the forms of power it had condemned.

The most important constitutional innovation of the era was not any single arrangement of branches. It was the growing distinction between the people as the source of political authority and the officials who exercised delegated power. Early state constitutions did not all embody that distinction equally. Pennsylvania’s 1776 constitution placed extraordinary confidence in a frequently elected unicameral legislature and in continuing popular participation. Massachusetts’s 1780 constitution adopted a more elaborate separation of powers and emerged through a specially elected convention followed by popular consideration in the towns. Together, the two cases reveal an experimental process through which Americans learned that an elected legislature could be an agent of the people without being sovereign over them.

This essay treats state constitution-making as the intellectual and institutional bridge between independence and the federal Constitution. The Articles of Confederation then appear not as an inexplicable mistake but as an attempt to preserve republican liberty among states that regarded themselves as sovereign political communities. The Confederation’s western ordinances demonstrate both the creative capacity of that union and a central contradiction: equal membership for settler states rested on U.S. claims over Native homelands whose peoples had not consented to American rule.

I. Independence and the Crisis of Legitimate Authority

From Resistance Committees to Governments

Before independence, resistance had already generated alternative institutions. Committees of correspondence, county committees, provincial congresses, militia organizations, and the Continental Congress claimed authority because ordinary imperial institutions had become, in Patriot eyes, instruments of unconstitutional power. These bodies often arose outside inherited legal forms. Their legitimacy depended on elections, public meetings, local enforcement, and the conviction that political necessity authorized communities to protect their rights. The transition from protest to government therefore began before July 1776, but independence intensified the need to regularize revolutionary authority.

The Continental Congress urged colonies to form governments sufficient for their affairs in May 1776, while states proceeded at different speeds and through different procedures. Some adapted colonial charters; others instructed legislatures or conventions to draft constitutions. The resulting documents were not merely administrative plans. They attempted to identify the source, purposes, and limits of lawful power. Declarations of rights, written constitutions, frequent elections, and institutional restraints reflected the conviction that government existed by delegation rather than inherent authority.

Constitution as Frame, Act, and Higher Law

The word constitution had long referred to the inherited arrangement of political institutions and practices. Revolutionary Americans increasingly treated a constitution as a written frame created by a superior authority and binding on ordinary government. That transformation was uneven. A legislature that drafted a constitution and could revise it through ordinary law blurred the distinction between constitutional and legislative power. A specially elected convention, by contrast, could claim to represent the people in a constituent capacity different from the legislature’s routine lawmaking authority.

This procedural distinction mattered because elections alone did not solve the problem of tyranny. An elected legislature could confiscate property, violate conscience, manipulate representation, or sacrifice minority rights. If the legislature were sovereign, no legal authority stood above it. If the people were sovereign, the legislature remained a delegated institution subject to a constitution that it could not alter at will. The emerging idea of higher law therefore converted the revolutionary appeal to the people into an institutional structure.

The Limits of “The People”

Popular sovereignty did not mean universal participation. Voting qualifications varied by state and usually privileged free adult men with property, taxpaying status, or other recognized standing. Enslaved people, most women, many free Black people, Native nations, loyalists under disability, and others stood outside or at the margins of the political people. Even among eligible men, constitutional ratification procedures did not always resemble modern referenda. The language of “the people” was expansive as a theory of authority but restricted in its institutional embodiment.

Analytical Significance

II. Pennsylvania, 1776: Fear the Rulers

A Constitution Born from Mobilization

Pennsylvania’s constitution emerged from unusually intense popular mobilization. The colony’s proprietary government and cautious assembly had been challenged by committees, militia associations, county meetings, and radical activists who pressed for independence. Kenneth Owen has emphasized that the constitution grew from political practices developed during resistance: ordinary people had already exercised authority through extra-governmental institutions and expected the new government to remain closely responsive to that mobilized public. The constitution was therefore not simply a theoretical application of democratic ideas; it institutionalized a revolutionary political culture.

Unicameralism and Legislative Supremacy

The 1776 constitution created a unicameral House of Representatives chosen annually. It rejected an upper chamber that radicals associated with aristocracy and privilege. Executive authority rested in a plural Supreme Executive Council rather than a single powerful governor. Frequent elections, rotation, publicity, and a Council of Censors were intended to prevent rulers from separating themselves from the people. The system assumed that concentrated executive authority and insulated institutions posed the greatest danger to liberty.

Pennsylvania’s designers did not simply endorse uncontrolled government. They attempted to restrain it through transparency, declarations of rights, electoral accountability, and periodic constitutional review. Yet the legislature occupied the dominant place. Because the constitution emerged from the same revolutionary political process that empowered representatives, the distinction between the people’s constituent authority and legislative authority remained less institutionally developed than it would become in Massachusetts.

Political Conflict and the Meaning of Radicalism

Critics charged that unicameralism permitted sudden majorities to legislate without sufficient deliberation, while supporters argued that a second chamber would reproduce social hierarchy and obstruct the people’s will. Pennsylvania politics became intensely contested between constitutionalists and opponents who favored revision. Older accounts sometimes described the replacement of the 1776 constitution in 1790 as a conservative counterrevolution. More recent work, including Owen’s, cautions that participatory practices and claims of popular legitimacy persisted even when institutional forms changed. The crucial conflict concerned how, not whether, popular authority should operate.

Analytical Significance

III. Massachusetts, 1780: Fear Concentrated Power

The Failure of the 1778 Draft

Massachusetts first attempted to replace its charter through a constitution drafted by the legislature acting as a convention. Towns rejected the 1778 proposal by a wide margin. Objections varied, but the episode revealed growing insistence that the ordinary legislature lacked authority to create the fundamental law under which it would operate. The rejection helped clarify the procedural distinction between constituted government and constituent power.

A Special Convention and Popular Consideration

In 1779 voters elected delegates to a convention specifically charged with drafting a constitution. John Adams prepared the principal draft, though the convention revised it and the towns evaluated its provisions. The resulting constitution took effect in 1780. The process became as important as the document: a specially authorized convention proposed a frame of government, and the people acting through local political communities considered whether to accept it. The model strengthened the claim that the constitution derived from authority superior to the legislature.

Separated Institutions and a Stronger Executive

The Massachusetts Constitution included a declaration of rights, a bicameral legislature, an independently elected governor with substantial powers, and an independent judiciary. Adams defended balanced government not as a retreat to monarchy but as protection against the concentration of power in any single institution. A second legislative chamber could slow sudden action; an executive could administer laws and resist legislative encroachment; courts could provide continuity and legal judgment. The arrangement reflected lessons drawn from early revolutionary governments and from the fear that legislatures, no less than executives, might abuse power.

David Thomas Konig has identified three enduring elements in Adams’s constitutional thought: implementation of popular sovereignty, functional separation of powers, and written binding limitations. The Massachusetts model did not create modern democracy, nor did it eliminate hierarchy. Its property-based political order and religious arrangements reflected the exclusions and assumptions of its time. Its importance lies in joining institutional balance to a constitution authorized through a distinctive constituent process.

Pennsylvania and Massachusetts as Competing Logics

Analytical Significance

IV. Popular Sovereignty as an Institutional Achievement

The People Above Government

The revolutionary innovation can be stated simply: government officials exercise power, but they do not own it. The people authorize a constitution; the constitution creates offices; officeholders exercise limited powers under that constitution. This hierarchy differs from parliamentary sovereignty, under which no legal authority could invalidate an act of Parliament, and from legislative supremacy, under which an elected assembly might claim final authority within a state.

The doctrine remained contested and incomplete. Who counted as the people? How directly should their will be expressed? Could conventions genuinely represent them? How could constitutional limits be enforced? Judicial review was not yet uniformly established, and constitutional interpretation would remain a political as well as legal process. Nevertheless, the distinction between constituent and constituted power supplied the conceptual basis for later ratification of the federal Constitution and for claims that ordinary laws could be invalid because they violated a superior written constitution.

Participation, Representation, and Filtering

Popular sovereignty did not dictate one institutional form. Pennsylvania emphasized frequent elections and continuing public mobilization. Massachusetts emphasized deliberation, balance, and a specially authorized convention. Federal constitution-makers would later combine popular ratification with institutions designed to filter and divide political power. The central question was never simply whether the people should rule. It was how a large, diverse, and unequal people could exercise authority without surrendering liberty either to rulers or to unstable majorities.

Historiographical Perspectives

Gordon Wood’s influential account placed republican ideology and the transformation of sovereignty at the center of the founding era. Scholars of popular politics have complicated elite-centered narratives by demonstrating that crowds, committees, militia associations, town meetings, petitioners, and local voters shaped constitutional development. Kenneth Owen’s Pennsylvania study emphasizes publicly legitimate political process and the persistence of participatory practices. Robert Williams’s comparative account of state constitutions identifies two broad waves: an early group with weaker checks and less distinct constitution-making procedures, and a later group, exemplified by Massachusetts, that used conventions and more elaborate restraints. These approaches are complementary when institutional change is understood as interaction between political ideas, social conflict, and learned experience.

Analytical Significance

V. The Articles of Confederation: Republican Union Without Consolidation

Why a Weak Center Made Historical Sense

The Articles of Confederation reflected the same revolutionary suspicion of distant authority that shaped early state constitutions. The states had fought Parliament’s claim of supremacy and now guarded their own sovereignty. The Articles described the union as a “firm league of friendship,” preserved each state’s sovereignty and independence, and gave each state one vote in Congress. There was no separate national executive or general national judiciary. Congress could conduct diplomacy, declare war, manage western lands, and request resources, but it depended heavily on state compliance and could not levy taxes directly on individuals or comprehensively regulate commerce.

These arrangements were not designed because Americans misunderstood power. They were designed because many Americans believed concentrated power was the principal threat to republican liberty. A stronger center raised questions about representation, taxation, military coercion, and the possibility that large states or distant officials would dominate local communities. The Confederation attempted to coordinate sovereign republics without creating a government capable of reproducing imperial command.

Achievement, Impotence, and Contingency

The Confederation prosecuted the war after formal ratification in 1781, negotiated the peace, conducted diplomacy, and managed western policy. Yet requisitioning produced chronic fiscal weakness; states pursued conflicting trade policies; Congress struggled to enforce treaties; and foreign powers exploited American divisions. These problems became more acute after the war, but their severity and political meaning were disputed. Nationalists interpreted them as proof that the Union lacked government. Others feared that proposed remedies would shift authority from state communities to creditors, merchants, military officers, and national elites.

Merrill Jensen’s scholarship famously treated the Confederation as a meaningful radical republican order rather than a mere prelude to the Constitution. Later historians have debated how effectively it operated and how much economic, diplomatic, and fiscal pressure made reform necessary. The most useful teaching position avoids both caricatures: the Articles embodied coherent revolutionary principles, achieved consequential results, and imposed structural limitations that became increasingly difficult to manage.

Analytical Significance

VI. Western Statehood and the Indigenous Contradiction

Land Cessions and Equal Statehood

Western land claims threatened the Union because states without extensive claims feared that claimants would gain disproportionate wealth and power. State cessions allowed Congress to treat western lands as a national domain. The Land Ordinance of 1785 created a survey and sale system. The Northwest Ordinance of 1787 established territorial government and a path to admission as states on an equal footing with the original states. It protected certain civil rights, encouraged education, and prohibited slavery in the territory north of the Ohio River, while including a provision for the return of fugitives from labor.

The equal-statehood principle was a significant departure from permanent colonial subordination. Settlers in western territories were promised eventual membership in the Union rather than indefinite rule as dependent colonies. This helped transform continental expansion into a process of reproducing states. It also provided one of the Confederation’s clearest institutional successes and influenced the later expansion of the United States.

“Utmost Good Faith” and the Assertion of U.S. Jurisdiction

The Northwest Ordinance declared that good faith should be observed toward Native peoples and that their lands should not be taken without consent except in just and lawful wars. Yet U.S. policy simultaneously assumed authority to organize and sell territory still occupied and defended by Native nations. American diplomats and officials often treated the Treaty of Paris as transferring British claims to the United States, while Native leaders rejected the premise that Britain could cede their homelands. The result was continuing diplomacy, resistance, warfare, and contested sovereignty in the Ohio Valley.

The contradiction is foundational. Republican expansion offered equal political status to settler communities while denying that Native polities possessed an equal right to remain outside U.S. jurisdiction. The territorial system was anti-colonial from the perspective of future white settler states and imperial from the perspective of Indigenous nations. This dual character links constitutional development to the history of continental conquest.

Analytical Significance

Closing Synthesis

The constitutional history of 1776–1787 was an extended experiment in converting revolution into legitimate rule. Americans did not move directly from monarchy to a settled constitutional model. They tested institutions in the states, debated the dangers of executives and legislatures, refined the distinction between the sovereign people and their representatives, and attempted to unite sovereign states without recreating imperial supremacy.

Pennsylvania and Massachusetts reveal competing but intelligible answers. Pennsylvania translated mass mobilization and distrust of rulers into a highly responsive unicameral system. Massachusetts used a special convention, popular consideration, bicameralism, an independent executive, and separation of powers to place government beneath a higher constitution. The later federal system would draw more heavily from the Massachusetts institutional model while continuing to depend on Pennsylvania’s broader premise that government required publicly demonstrated popular legitimacy.

The Articles of Confederation extended revolutionary suspicion of centralized power to the Union. Their weaknesses became visible under wartime and postwar pressure, but they also produced the western ordinances and the principle of equal statehood. That achievement carried an imperial contradiction because the republic’s constituent people claimed authority over Native nations that had never consented to membership. The open question is therefore larger than which constitution worked best: how can a people create binding government while ensuring that the people who authorize it are not defined through exclusion, conquest, or the silencing of other sovereign communities?

Suggested Reading for Deeper Preparation

Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969). Classic interpretation of republican ideology, sovereignty, representation, and constitutional transformation. Essential for understanding the intellectual movement from legislative supremacy toward a more complex constitutional order.

Kenneth Owen, Political Community in Revolutionary Pennsylvania, 1774–1800 (2018). Major reassessment of Pennsylvania politics that emphasizes popular mobilization, public legitimacy, and the persistence of participatory political culture beyond the replacement of the 1776 constitution.

Robert F. Williams, The Law of American State Constitutions (2009), especially the chapter on the founding decade. Provides a clear comparative framework for the early and later waves of state constitution-making, using Pennsylvania and Massachusetts to illuminate contrasting institutional philosophies.

Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (1980). Analyzes how consent, representation, and control were translated into the first state constitutions. Useful for connecting political theory to institutional design.

Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (1997). Examines state constitutional debates as efforts to balance governmental authority and individual liberty. Particularly useful for moving beyond a simple radical-versus-conservative binary.

David Thomas Konig, “John Adams, Constitution Monger,” in Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham (2014). A focused analysis of Adams’s constitutional thought and the Massachusetts Constitution, emphasizing popular sovereignty, separation of powers, and binding written limitations.

Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781 (1940). Classic defense of the Confederation as a meaningful expression of radical revolutionary politics. Even where later scholarship disagrees, Jensen remains indispensable for resisting teleological narratives.

Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (1979). Explains the political development of Congress and the problems of collective action before and under the Articles. Useful for understanding the Confederation as a functioning political arena rather than only a list of formal weaknesses.

Colin G. Calloway, The Victory with No Name: The Native American Defeat of the First American Army (2014). Carries the story of contested western sovereignty into the early republic and demonstrates that U.S. territorial claims did not translate automatically into control.

Mary Sarah Bilder, “The Founding (1776–91),” in With Liberty and Justice for All? The Constitution in the Classroom (2022). A concise modern synthesis of evolving constitutional language, including people, sovereignty, rights, citizenship, and the exclusions embedded in “We the People.”