Early State Constitutions: Rights, Slavery, and Federal Legacy

The early state constitutions were the founding governing documents that the thirteen former colonies wrote for themselves as they broke from Britain. Eleven states drafted new constitutions between January 1776 and June 1784; Connecticut and Rhode Island kept their old royal charters with the king edited out. These were the first large-scale experiments in written republican government anywhere in the modern world, and their choices — strong legislatures, weak governors, enumerated rights, property-based suffrage — set the pattern that the federal Constitution of 1787 and the Bill of Rights would either copy or deliberately correct.

When Each State Wrote One

The push started before independence. Royal governors were fleeing or being pushed out, leaving colonies without functioning executives or courts. New Hampshire moved first: a provincial congress at Exeter adopted a temporary constitution on January 5, 1776, describing it as intended “to continue during the present unhappy and unnatural contest with Great Britain.”¹ It was never submitted to voters.²

On May 15, 1776, the Second Continental Congress urged the colonies to “adopt such a government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents.”³ Constitutions followed in roughly this order:

South Carolina, March 1776 (temporary), revised March 1778
Virginia, June 1776
New Jersey, July 1776
Delaware, September 1776
Pennsylvania, September 1776
Maryland, November 1776
North Carolina, December 1776
Georgia, February 1777
New York, April 1777
Vermont, July 1777 (then an independent republic)
Massachusetts, June 1780
New Hampshire, June 1784 (permanent, replacing the 1776 provisional)

Connecticut and Rhode Island wrote nothing new. Their seventeenth-century charters — Connecticut’s from 1662, Rhode Island’s from 1663 — already granted broad self-government, so they simply removed the references to royal authority.³ Rhode Island kept its charter running until 1842, when a fight over malapportionment and restricted suffrage — the Dorr Rebellion — finally produced a new one.⁴

What They Had in Common

The details varied, but a family resemblance ran through them, rooted in republican theory and in a hard-earned distrust of executive power.

Strong Legislatures, Weak Governors

Nearly every early constitution concentrated authority in the legislature, which framers saw as the branch closest to the people. Governors were usually appointed by the legislature rather than elected, and most had no veto. Legislatures also picked judges and other officials in many states.⁵ The documents were designed, one study of the period put it, to create “strong state assemblies while severely limiting the governors and councils.”³

Short Terms and Annual Elections

Most legislatures faced annual elections. Governors, where elected at all, typically served one-year terms with tight limits on consecutive service. North Carolina’s governor was elected annually by the General Assembly and could serve only three years in any six-year period.⁶ The reasoning was simple: legislators who were neighbors, on the ballot every year, could not plausibly threaten liberty.⁵

Property Qualifications

Every state tied voting to some form of property or taxpaying. The theory was that only men with a material stake could exercise independent judgment. The thresholds varied. Pennsylvania let any freeman over twenty-one vote if he had lived in the state a year and paid taxes.⁷⁸⁹ Georgia limited the vote to “male white inhabitants” who owned ten pounds of property or practiced a trade.¹⁰ Women and enslaved people were excluded almost everywhere. Vermont was the outlier, dropping property qualifications entirely and enfranchising all men over twenty-one of “quiet and peaceable behaviour.”¹¹

Religious Tests

Nine of the fourteen states, counting Vermont, imposed religious tests on officeholders between 1776 and 1784. Maryland and Massachusetts required a declaration of belief in Christianity; New Jersey, North Carolina, Georgia, and New Hampshire required Protestant faith; Delaware required an oath affirming the Trinity and the divine inspiration of Scripture.¹² Only Virginia and New York omitted them, though New York’s legislature later passed an act requiring officeholders to renounce “all foreign authorities in matters ecclesiastical as well as civil,” which excluded Catholics.¹³ The prevalence of these state tests is part of the reason Article VI of the federal Constitution barred religious qualifications for federal office.

Declarations of Rights

Seven states put a formal declaration of rights at the front of their constitutions: Virginia, Delaware, Pennsylvania, Maryland, North Carolina, Massachusetts, and New Hampshire.¹⁴ The Virginia Declaration of Rights, adopted June 12, 1776, came first and mattered most. Primarily authored by George Mason, it declared that “all men are by nature equally free and independent” and enumerated trial by jury, freedom of the press, protection against general warrants, a ban on cruel and unusual punishments, and free exercise of religion.¹⁵

Copying was fast and open. John Adams noted that Pennsylvania’s bill of rights was taken “almost verbatim” from Virginia’s.¹⁴ Thomas Jefferson drew on it for the Declaration of Independence.¹⁵ When James Madison drafted the federal Bill of Rights in 1789, he leaned heavily on the state declarations. Three rights appeared unanimously across every state declaration, Madison’s initial proposals, and the final federal amendments: freedom of religious conscience, the right to an impartial local jury, and the right to trial by jury in civil cases.

How Individual States Differed

Virginia: The Template

Virginia’s constitution, adopted June 29, 1776, was what other states looked to first. Its Declaration of Rights set out popular sovereignty — “all power is vested in, and consequently derived from, the people” — and the community’s right to “reform, alter, or abolish” an inadequate government.¹⁶ Those became standard features elsewhere.¹⁷ Madison, who contributed language on religious liberty, would return to the document repeatedly when drafting federal protections.

Pennsylvania: The Radical Experiment

Pennsylvania’s constitution, adopted September 28, 1776, was the era’s most radical. Written by a convention of political newcomers “determined not to pay the least regard to former Constitutions,” it produced the only unicameral legislature among the original states.⁷ No upper house checked the assembly. No governor held a veto. Executive authority sat in a twelve-member Supreme Executive Council. All tax-paying free men could vote.¹⁸

It also created the Council of Censors, an elected body that met every seven years to determine whether the constitution had been “preserved inviolate.” The Council could order impeachments, issue censures, recommend repeal of unconstitutional laws, and by two-thirds vote call an amendment convention.¹⁹

The constitution was proclaimed without popular ratification, and critics said built-in test oaths disenfranchised political opponents and produced one-party rule.¹⁸ John Adams called the model a “beast without a head”; Benjamin Rush called it a “mobocracy.”²⁰ Pennsylvania replaced it in 1790 with a document built around a bicameral legislature and a governor, closer to the federal model.

Massachusetts: The Durable Model

The Massachusetts Constitution of 1780, primarily drafted by John Adams, is the oldest written constitution still in continuous use anywhere in the world.²¹ It was also the first ratified by the people rather than proclaimed by a legislature or convention.

A first attempt in 1778 failed. Voters rejected a draft that lacked a declaration of rights and did not adequately separate powers.²² The legislature then called a special convention whose sole purpose was to draft fundamental law — the first time that idea was put into practice. Delegate elections were open to all free males aged twenty-one and older, without property qualifications, and 311 delegates were chosen.²³

Substantively, Adams designed the document to fix what he saw as the central flaw in other state constitutions: unchecked legislative power. Massachusetts got a powerful governor elected directly by voters, with a veto that required a two-thirds override in both chambers. It got a bicameral legislature and an independent judiciary serving during “good behaviour.”²⁴ Article XXX declared the legislative, executive, and judicial departments “shall never exercise” one another’s powers, “to the end it may be a government of laws and not of men.”²⁵ Those features made it a primary model for the federal Constitution seven years later.

New York: The Strong Executive

New York’s constitution, adopted April 20, 1777, went further than most in building up the executive. The governor was elected directly by freeholders for a three-year term and served as commander-in-chief of the militia. Its most distinctive feature was the Council of Revision, made up of the governor, the chancellor, and the judges of the supreme court. Every bill passed by the legislature had to be submitted to this council before becoming law. If the council thought a bill “improper,” it sent it back with written objections; the legislature could override by two-thirds in each house. That structure — judges and the executive jointly reviewing legislation — influenced the design of the presidential veto in 1787.²⁶

Vermont: Abolition and Broad Democracy

Vermont, then an independent republic outside the Union, adopted its constitution on July 8, 1777. It borrowed heavily from Pennsylvania: unicameral legislature, universal male suffrage without property requirements, a Council of Censors.²⁷ Its most historically significant clause addressed slavery. Chapter 1, Section 1 declared that “no male person, born in this country, or brought from over sea, ought to be holden by law, to serve any person, as a servant, slave or apprentice” after age twenty-one, with a parallel provision freeing women at age eighteen.¹¹ That made it the first constitution to address abolition, though the age exceptions left loopholes. A total prohibition was not added until voters amended the constitution in 2022. The document also mandated public education, requiring a school in each town, a grammar school in each county, and a university in the state. Vermont’s antislavery stance drew friction from Southern states, and it was not admitted to the Union until 1791.²⁸

New Jersey: A Brief Window for Women Voters

New Jersey’s constitution, adopted July 2, 1776, was the first to omit a prefatory bill of rights.¹⁴²⁹³⁰³¹

How Slavery Was Handled

Slavery existed in all thirteen colonies in 1776, and the constitutions handled it in sharply different ways. Vermont’s 1777 constitution carried the first abolition provision. Pennsylvania became the first state to pass a gradual emancipation statute in 1780, freeing children born after enactment once they reached the age of majority.³² Massachusetts abolished slavery outright by judicial decree in 1783. New Hampshire, Connecticut, and Rhode Island adopted gradual emancipation plans on the Pennsylvania model in the mid-1780s.

Southern constitutions generally avoided the subject or implicitly protected the institution, often alongside sweeping language about liberty and natural rights. The Maryland Declaration of Rights called the “doctrine of non-resistance, against arbitrary power and oppression” destructive of “the good and happiness of mankind,” even as slavery persisted.³³ Delaware’s 1776 constitution took a middle position, prohibiting the importation of enslaved people from Africa for sale without abolishing slavery.³⁴ By 1817, every northern and western state had committed to a future without slavery, though gradual emancipation left some individuals in bondage until the Civil War.³²

What Went Wrong and How States Fixed It

The generation that wrote these constitutions lived to see their flaws. The core problem was legislative dominance. Without effective checks, state legislatures began overreaching — passing retroactive laws that impaired property rights, enacting “special” legislation that targeted individuals rather than the public, and exercising what amounted to judicial functions.³⁵ James Madison observed a “tendency in our governments to throw all power into the legislative vortex.”²⁰

States responded on two tracks. Starting in the early nineteenth century, they shifted to direct popular election of governors, judges, and other officials, giving those branches an independent democratic mandate rather than leaving them as creatures of the legislature.⁵ They also layered procedural and substantive restrictions on their legislatures: bills had to be referred to committees, titles had to disclose content, supermajorities were required for certain classes of legislation, and specific abuses like the lending of state credit or the passage of special laws were banned outright. By 1900, thirty-three states had limited the length of legislative sessions, and only six legislatures met annually.

What the Federal Framers Took From Them

The state constitutions were a decade-long laboratory. When delegates gathered in Philadelphia in 1787, many were former governors, state legislators, or Continental Congress members who had watched both the promise and the dysfunction firsthand.³⁶

The framers borrowed what worked. Written declarations of rights, separation of powers, and bicameralism all came from the state constitutions.³⁷ They also reacted against what failed. The weakness of executives under most state constitutions convinced delegates like James Wilson and Gouverneur Morris to push for an independent president with veto power. The unchecked legislative power seen most dramatically in Pennsylvania persuaded the convention to build a robust system of checks and balances, with bicameralism reinforced by an executive veto and a two-thirds override.²⁰ The Massachusetts and New York constitutions were cited as particularly important positive models.³

The one notable departure was the omission of a bill of rights from the original federal Constitution, which George Mason and Thomas Jefferson considered a serious mistake.³⁷ The first Congress corrected it. When Madison drafted the amendments that became the Bill of Rights, he drew on amendments proposed by state ratifying conventions and on the existing state declarations. He initially proposed inserting the amendments into the body of the Constitution, following the state model, but Roger Sherman successfully argued for appending them at the end.³⁸ The resulting ten amendments — from free exercise of religion to the ban on cruel and unusual punishments — owe their substance to provisions Americans had already been living under in their states for more than a decade.

1
Yale Law School – Avalon Project. Constitution of New Hampshire, 1776
2
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3
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4
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5
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6
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7
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8
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9
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10
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11
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12
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13
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14
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15
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16
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17
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18
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19
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20
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21
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22
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23
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24
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25
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26
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27
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28
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29
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30
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31
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32
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33
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34
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35
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36
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37
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38
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