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About this book

This book is a documentary history of the rights found in the American state constitutions adopted between 1776 and 1790. Despite the rich tradition of rights at the state level, rights in America have been identified almost exclusively with the national Bill of Rights. Indeed, there is no work that provides a comprehensive treatment of the early state declarations of rights. Rather, these declarations have been viewed as halting first steps towards the adoption of the national Bill of Rights in 1791. Bringing together the full text of the rights provisions from the 13 original states and Vermont, this book presents America’s first tradition of rights on its own terms and as part of this country’s heritage of rights. Early chapters will examine the sources of these rights and provide a comparative framework. An introduction to each chapter will review that state’s colonial history, focusing on any charters or legislation related to rights protections that help explain its constitutional provisions. This work will make it possible for students, scholars, and interested citizens to rediscover the first fruits of the American Revolution.

Table of Contents

Frontmatter

Framing

Frontmatter

Introduction

Abstract
This work provides a thematic overview of the rights in early state constitutions and reproduces and provides commentary on these rights provisions. The authors begin by contrasting the well-known history of the U.S. Bill of Rights with the comparatively unknown tradition of rights provisions found in the early American state constitutions. The introduction discusses the prior literature concerning early state declarations of rights, noting that no comprehensive analysis of the history and character of these declarations exists, and much of the scholarship in this area viewed them as preludes to the adoption of the national Bill of Rights in 1791. The authors argue that there is a coherence in the declarations that has yet to be fully explored.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Rights in Colonial America: 1620–1776

Abstract
Although rights were frequently asserted in the American colonies, the colonists lacked a clear understanding or consensus as to the nature and sources of those rights. The public understanding of these rights did not rise much above the level of slogans and rallying cries. By the middle of the eighteenth century, general agreement existed on a set of constitutional principles that would provide the foundations for their republics. The specific civil and constitutional rights claimed by colonists were a function of what rights were being threatened by colonial officials or the Crown and later, parliament. This describes the four major sources of the rights that made their way into the first state constitutions: English constitutional history and common law, colonial charters and statutes, natural law/rights, and religion/theology.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

The Rights Tradition in America’s First Constitutions

Abstract
This chapter provides a summative view of the understanding of rights contained in the constitutions adopted by the former colonies and Vermont between 1776 and 1790. Rights in the seventeenth and eighteenth centuries were as likely to be understood as communal and geographic as individual and personal. All state constitutions contained a quartet of rights colonists considered fundamental: the right to self-government, implemented by elections and representative institutions; the right to trial by jury; liberty of conscience; and the protections included under the mantle of the due process of law. The early declarations also all included civic virtue provisions that the framers believe indispensable for a natural rights republic.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

States Adopting Declarations of Rights

Frontmatter

Virginia

Abstract
This chapter provides a brief overview of the founding of the first permanent British colony in North America, beginning with the granting of its first charter in 1606. The initial meeting of the Virginia General Assembly in 1619 marked the beginning of political self-government in the New World. Virginia was the first state to adopt a declaration of rights, doing so in tandem with its 1776 constitution. The authors focus on the tradition of rights within the state leading to the adoption of that declaration, paying particular attention to the role played by George Mason. The declaration set forth the rights that were the foundation of the new government, and admonished and instructed the people on what they must do to preserve liberty. The chapter also discusses how Virginia’s declaration served as a model for the other states. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Pennsylvania

Abstract
This chapter provides a brief overview of the founding of the colony in 1680/1681 as a grant to William Penn. Established as a refuge for persecuted Quakers, Pennsylvania was a place where tolerance and freedom of conscience would give rise to a peaceable kingdom, a society that was godly and virtuous. A combination of communitarian assumptions, humanitarian aspirations, and commitment to common law punctuated the state’s tradition of rights that culminated in a declaration of rights adopted in tandem with Pennsylvania’s 1776 constitution. The 1776 constitution would be the most radical and democratic document adopted in America between 1776 and 1791. The state’s second constitution, adopted in 1790, muted those qualities, resembling more closely the federal Constitution. Replications of and notes on the declaration of rights and relevant rights provisions in the frames of government of both constitutions are provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Maryland

Abstract
This chapter provides a brief overview of the founding of the colony in 1632 as a Catholic refuge under the proprietorship of Cecil Calvert, 2d Baron Baltimore. The authors explore the tradition of rights in the colony, paying particular attention to the Maryland Toleration Act (1649), which offered the broadest definition of religion freedom during the seventeenth century. Once Maryland became a royal colony in 1691, religious equality for Catholics ended. In 1776, Maryland adopted a declaration of rights—the longest of any of the states during that period—in conjunction with its state constitution. The Maryland declaration relied extensively on a draft of the Virginia declaration. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Delaware

Abstract
This chapter provides a brief overview of the founding of the colony in 1638 by Peter Minuit, acting on behalf of the Swedish government. Successively a Swedish, Dutch, and English colony, Delaware was also at various times part of New York and then Pennsylvania. The impact of these changes on the rights tradition of the colony is explored. The chapter also discusses how Delaware’s rights tradition was shaped by the English common law, it sizeable contingent of Quaker residents, and its propinquity to Pennsylvania. The state’s declaration of rights, adopted in tandem with its 1776 constitution, closely resembled the Pennsylvania and Maryland declarations. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

North Carolina

Abstract
This chapter provides a brief overview of the founding of the colony of Carolina in 1663 as a grant from King Charles II to eight friends he credited with helping restore the monarchy. It describes the history of rights in the unified Carolina colony, including the multiple Concessions and Agreements (1665) and the Fundamental Constitutions (1669), as well as the rights tradition post-separation and through the state’s declaration of rights adopted in tandem with its 1776 constitution. North Carolina was the first colony to pass a resolution in support of independence. Its declaration borrowed extensively from the Virginia, Maryland, and Pennsylvania declarations, yet was careful to follow the dictates of its citizens’ anti-aristocratic “Instructions.” A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Vermont

Abstract
This chapter provides a brief overview of the founding of the territory, which was born out of a series of disputes between New Hampshire and New York. Although the Crown ruled that the territory belonged to New York, Vermonters were unwilling to accept that determination. That disagreement, and the territory’s unsuccessful effort to be recognized by the Continental Congress as its own territory, formed the backdrop to the declaration of rights adopted by the state in tandem with its 1777 constitution. The state’s first constitution, adopted in 1777, was modeled after the Pennsylvania Constitution and bore a remarkable similarity to that document. Vermont adopted a second constitution in 1786. Replications of and notes on the declarations of rights and relevant rights provisions in the frames of government are provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Massachusetts

Abstract
This chapter provides a brief overview of the founding of the colony, from the Mayflower Compact signed by the Pilgrims in 1620, to the Massachusetts Bay Colony’s Body of Liberties, to the state’s first (and only) constitution in 1780. It describes how the state’s voters rejected an earlier constitution, in large part because it did not include a declaration of rights. It discusses the critical role that John Adams played in drafting the declaration. By the time Massachusetts adopted its declaration, in 1780, it had the declarations of six other states to use as models. A number of the provisions in the Massachusetts declaration resemble Pennsylvania and Maryland, but with key changes that are noted. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

New Hampshire

Abstract
This chapter provides a brief overview of the founding of the colony in 1629 as a division of what had been the Province of Maine. Part of the Massachusetts Bay colony at numerous times during its history, New Hampshire’s rights tradition is explored. New Hampshire was the first colony to set up a state government, adopting the first American state constitution in 1776. It was not until New Hampshire’s second constitution in 1784 that the state adopted a declaration of rights, the second-longest declaration among the early state constitutions. Much of New Hampshire’s 1784 declaration and frame of government borrows extensively from Massachusetts. A replication of and notes on the declaration of rights and relevant rights provisions in the 1784 frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

States Adopting Constitutions Without Separate Declarations of Rights

Frontmatter

South Carolina

Abstract
This chapter provides a brief history of the colony after the separation of North Carolina and South Carolina in the early eighteenth century. Almost immediately after this division, South Carolina in 1712 incorporated the common law and statutes of England into its colonial law, marking the first statutory enactment of Magna Carta in American history. The chapter focuses on the tradition of rights that formed the backdrop to the constitutions adopted by the state in 1776, 1778, and 1790. South Carolina’s three constitutions show the progression of thought regarding religious liberty and other rights in the new state, moving from an established church to complete disestablishment and free exercise of religion, as well as demonstrating a shifting focus from communal to individual liberty. Replications of and notes on the relevant rights provisions in the frames of government are provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

New Jersey

Abstract
This chapter provides a brief overview of the founding of the colony by the Dutch in 1609 as part of New Netherland, and the 1664 takeover by the English and the grant from the Duke of York to Lord John Berkeley and Sir George Carteret. The chapter focuses on the tradition of rights in the colony, with considerable attention paid to the Concessions and Agreements issued in 1677 by the proprietors of West New Jersey, one of the earliest recognitions of a difference between statutory and fundamental or constitutional law. New Jersey had a heterogeneous population and did not adopt a declaration of rights when it adopted its July, 1776 constitution. Reluctant to sever ties with England, its constitution contained a contingency clause should reconciliation between the colonies and the Homeland take place. A replication of and notes on the relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Georgia

Abstract
This chapter provides a brief overview of the founding of the colony in 1732 by George Oglethorpe and associates as an asylum for persecuted Protestants and a fresh start for the debt-ridden facing prison. It focuses on the tradition of rights that formed the backdrop to the constitutions adopted by the state in 1777 and 1789. With fewer grievances against and greater dependence upon Britain, Georgia was the most reluctant colony to join the Revolution. Despite having the least amount of experience in self-governance, Georgia’s constitutions were among the most democratic of the Revolutionary era. Replications of and notes on the relevant rights provisions in the frames of government are provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

New York

Abstract
This chapter provides a brief overview of the founding of the colony by the Dutch as New Netherland and its subsequent takeover by the English in 1664. A highpoint of New York’s tradition of rights, the Charter of Liberties and Privileges, was adopted in 1683 by the state’s first general assembly. A diverse colony from its inception and often described as “A Factious People,” New York did not accompany its 1777 constitution with a declaration of rights. The constitution did, however, contain numerous rights provisions, and the legislature adopted a statutory Bill of Rights in 1787. A replication of and notes on the relevant rights provisions in the frame of government is provided.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

States Maintaining Their Colonial Charters

Frontmatter

Connecticut

Abstract
This chapter provides a brief overview of the founding of the colony in 1633 by the Dutch and its takeover by a large influx of settlers from the Massachusetts Bay Colony. In 1638/1639, Connecticut adopted the Fundamental Orders—regarded by some scholars as America’s first constitution. The chapter also examines the rights tradition of the state. Connecticut was one of two colonies—the other Rhode Island—that did not adopt a homegrown constitution: it maintained its colonial charter as its governing document, which afforded a significant amount of governing freedom. Connecticut developed an extensive local body of the English common law—unique among the colonies. Connecticut’s homogeneity contributed to the belief among the leaders of the state that a declaration of rights was not as important as a commitment from the community to enforce the liberties that such a declaration would offer.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Rhode Island

Abstract
This chapter provides a brief overview of the founding of the colony by Roger Williams, who viewed the colony in the same way William Penn viewed Pennsylvania: as a refuge for persecuted religious dissidents. It then focuses on the colony’s tradition of rights. The impact of its founder, Roger Williams on its representative political institutions and its expansive understanding of religious liberty is pronounced. It is one of two colonies-the other Connecticut—that did not adopt a home grown constitution. The liberality of their colonial charter led them to preserve it as their governing document following independence. The actions of the 1790 state ratifying convention, and the declaration of rights it generated, are examined in detail.
Peter J. Galie, Christopher Bopst, Bethany Kirschner

Epilogue

Frontmatter

Rights Without Rebellion

Abstract
During the mid-1780s, the country experienced widespread recession. Discontent over government economic policies that fell unequally on small farmers and debtors gave rise to petitions for relief. In response, seven states issued paper money (which depreciated the currency and made it easier for debtors to repay obligations), and several provided debt relief.
Peter J. Galie, Christopher Bopst, Bethany Kirschner
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