After the liberation from the British monarchy in 1776, the United States appeared to be the state without its government. So it had to create and implement the new governmental system as soon as possible. Earlier, in May 1776 the US colonies were asked by the Congress to present the general projects of their state governments. All the 13 states ratified their written Constitutions by 1780. The ContinentalĀ Congress started working on a draft of the Government since June 1776, and five years had passed before it was approved by the members of Congress and by the states1.
The Articles of Confederation are considered to be the first version of the US Constitution. The Articles were arranged under the influence of the ideas born during the War of Independence. It appeared in times of the subconscious fear of any centralized power and of the long-term devotion of the citizens to the state they lived in and often considered it to be their country. Thus, soon after the Articles of Confederation had been accepted and the Confederation formed the defects of current administrative system were obvious. The Articles of Confederation needed revision and many political leaders including the representatives of Democrats acknowledged it.
Finally, the Articles of Confederation showed that they were unmanageable and inadequate to solve the problems which the country faced during its most difficult period of formation. Ā However, the document contributed much to the national unity by giving the Confederation Congress at least its first Federal power. In general, the Articles of Confederation were valid till March 4, 1789, when the current US Constitution was enacted2.
In 1786 ”“ 1787 the political elite introduced an integral theoretical grounding of the necessity of the strong national state protecting securely the interests of their class. The weightiest arguments were uttered by J. Adams, A. Hamilton and J. Madison. They rejected as idealistic and extremely dangerous the views of Democrats, who were convinced that North America was socially homogeneous, there was no actual class antagonism and, therefore, no necessity in the strong state.
They noticed the division of the USA into social factions (classes) and irremovable antagonisms between them. The question was how to provide the social peace in such a society, how to securely protect and represent economic and political interests of the wealthy minority3.
J. Adams was the first to introduce the conception of factions and factious enmity.
In 1787 in his substantial work “Defence of the Constitutions”¯4 (where the future President of the USA protected not all the constitutions of the states, but foremost, the constitution of Massachusetts, which was compiled under his active participation and differed from others by its moderation) Adams asserted that each society was inevitably divided into opposing parts – privileged minority and underprivileged majority.
The ways of social groups formation were historically different: in Europe such division lied in distinctions, based on heritable political and legal privileges of the nobility; and in the USA, where the class differences did not exist, the division into the minority and majority became the result of property inequality and also natural inequality in capabilities and talents, which allowed one group of people to dominate over others5.
Determining the elite of the American society John Adams used the concept of “natural aristocracy”¯, meaning that it, unlike the European elite, gained its authority and power not by means of heritable privileges, but relying on its innate talents and entrepreneurial spirit6.
Unfortunately, not all Adams’ compatriots understood the essence of terms, used by the politician. Many of them blamed the federalist for his sympathy towards the real aristocracy (although Adams, like all the federalists, saw the superiority of the USA over the feudal Europe in the fact, that all the titles and other class privileges were abolished in his country).
In order to work out the Constitution in 1787 the Congressional Delegation was called which considered the suggested drafts of the law for five months.
The project offered by the state of Virginia, composed by James Madison, who became the Founding Father and philosopher of the American Constitution, gained the greatest support. In 7 months the project was accepted by nine states and came into force. The constitution was ratified by all the 13 states in 17917.
At first, the United States Constitution consisted of Preamble, which was not considered by courts as its integral part, but referred to only from the point of view of the source comprising it, and seven Articles. Later the number of researchers also began considering the Amendments as an integral part of the Constitution (presently there are 26 of them).
It is important to mark that the American Constitution is the first written Constitution, which is functioning since the 18th century, one of the most “inflexible”¯ and “static”¯ among the basic laws of other developed countries. Its main peculiarity is insignificant formal changeableness. The legal text of the Constitution is just complemented by adding the amendments to its text.
The original text of the Constitution regulated mainly the structure of central government authority, relations between the Federation and its subjects, and contained necessary information about the modification procedure of the basic law. Gradually acquiring amendments the basic law of the United States of America finally began to regulate the complex of issues which are now referred to the constitutional regulation8.
The important thing to mark here is that the present Constitution of the USA was greatly influenced by preliminary constitutions of its states, especially by that of Massachusetts.
Constitution of the Commonwealth of Massachusetts
and Its Traces in the US Constitution
The Historical Aspect
The colony of Massachusetts used to strike the keynote of the anti-British movement, and its capital city of Boston is rightfully considered the cradle of the American Revolution for it witnessed the events which played a crucial role in the proclamation of independence of the USA. It was Massachusetts together with Virginia to elect people who became the leaders of the USA, whose efforts formed the government and new political institutes.
In 1630, the Great and General Court of Massachusetts was founded by John Winthrop and his confidants in the Massachusetts Bay Company in order to establish a form of local government for the people who had settled in the area. It was the General Court to compose a preliminary draft of a state Constitution for Massachusetts during the American Revolution. However, the Constitution of Massachusetts proved surprisingly moderate. It reflected, in the first place, the interests of the elite which aimed at establishing control over patriotic organizations and liberation movement in general9.
During the consideration of the Constitution draft at the Convention a hot discussion broke out between the West and East delegates. And though compromise decision was reached concerning a number of questions, practically none of the sides was satisfied. The Constitution was especially emphatically rejected in 1778 by the West.
The main reason for such verbal attacks was a high electoral property qualification, as well as absence of guarantees of traveling expenses payment for the delegates from Western districts, who had to get to the place of meetings on the East coast. As a result, during voting, the delegates in correlation 5 to 1 spoke against the ratification. The citizens of the Eastern area of the state were obviously disappointed with the Constitution as well, although its provisions were more advantageous for them.
After the people of Massachusetts rejected this document as the law because of their noninvolvement in the procedure of its creation they selected delegates to meet again and work out a new Constitution.
It was composed by John Adams, Samuel Adams, and James Bowdoin during the Massachusetts Constitutional Convention in September ”“ October, 1779. John Adams, who represented the moderate wing of the Whigs and kept to the philosophy of the balanced government acknowledging people’s sovereignty but believing that the direct power must belong to the elite, played a decisive role in the preparation of the project.
The new project of the Constitution of Massachusetts was not more democratic, than that of 1778. Property qualification for the right to vote and be elected remained quite high. And though the new Constitution contained acquiescence to the citizens of the Western districts increasing their number in the Assembly, it simultaneously fixed the prerogatives of the Senate and strengthened the rights of executive power10.
However, unlike the project of 1778, the Constitution of 1780 contained the Declaration of Rights, which proclaimed the basic civil liberties.
After its approval at town meetings, the Constitution of Massachusetts was ratified on June 15, 1780, and came into force on October 25, 1780. It remains the oldest written constitution in the world, which is still functioning.
The Essence of the Constitution
According to D. McCullough “”¦he [John Adams] drafted the oldest written Constitution still in use in the world today – the Constitution of the Commonwealth of Massachusetts, written 10 years before our own Constitution, and had great influence on the national Constitution”¯ 11.
The Massachusetts Constitution appeared to be the last constitution to be written out of the first set of state constitutions. Therefore, it was arranged in a more complex way than the number of other documents.
Among its advantages the structure of the document could be marked: while other documents just listed the provisions, the Massachusetts Constitution was divided into chapters, sections and then articles. The Constitution included four main parts: the Preamble, the Declaration of Rights, the presentation of the governmental structure, and, finally, the amendment articles. This structure was further borrowed for writing the US Constitution; and it also had a significant impact on further revision of other state constitutions.
The Constitution preamble also has common features with that of the United States Constitution; especially they coincide in several phrases in the end of the Preamble. The Preamble runs:
“We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.”¯12
The first part called “A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts”¯ includes 30 articles. The first article states that all men are born free and equal, and have their natural, fundamental, and unalienable rights; among which there are the right of enjoying and defending their lives and liberties; the right of gaining, possessing, and protecting property; the right of seeking and obtaining their safety and happiness13.
In this way, slavery as such had no more legal protection in the state of Massachusetts, acknowledging it a violent act under law, successfully abolishing it in the Commonwealth. Besides, later this article was edited and the word “men”¯ was replaced by the word “people”¯, in this way strengthening the equality of genders.
The second part of the Massachusetts Constitution called “The Frame of Government”¯ starts with the statement that the department of legislation should be divided into two branches, which are the Senate and the House of Representatives, which oppose to each other and at the same time bear mutual responsibility and control over the given powers14.
The Massachusetts Constitution of 1780 also includes the provision which authorizes the Governor and his/her Council to acquire consultative opinions from the Supreme Judicial Court in issues relating to the Governor’s responsibilities or those of the Legislature of the Commonwealth. Although Massachusetts is the only of the thirteen original states to preserve its first constitution, numerous amendments have been added to it since its ratification, the most serious of which were introduced by the Massachusetts Constitutional Convention of 1917 ”“ 1919.
The Peculiarities of Influence of the Massachusetts Constitution of the US Constitution
The Constitution of the USA, accepted in 1787, confirmed the bourgeois-democratic republican system on the whole territory of the United States of America. Titles of nobility and ranks were officially canceled; class privileges were liquidated; the principle of representation of people in the highest bodies of state authority was consistently conducted, as well as the principles of equilibrium and division of authorities; the creation of more durable political union of states with effective legislative, executive and judicial authorities was provided15.
In this sense, the Constitution of 1787 became the climax and culmination of the American bourgeois Revolution.
An extremely original and balanced project of the new Federal Constitution was prepared. It was perfect enough from the viewpoint of its form, but it was not, at the same time, deprived of some disadvantages. The most important of them was the absence of a separate section devoted to the civil rights and liberties, although the text of the accepted project fixed a number of basic constitutional guarantees of rights for the citizens. Moreover, in our opinion, one more disadvantage was the delay in solving the issue of slavery, which cost the USA thousands human lives in the middle of the 19th century16.
For its time, the Constitution had a progressive character: it assigned bourgeois-democratic principles and achievements of the American nation; it cleared the way for the development of industrial relations and promoted the development of capitalism in the country.
The principle of the division of powers was borrowed by the Constitution of the USA from the Constitution of Massachusetts, which stated that in the government of this state the legislative committee should never have the right to apply executive and judicial power or one of them, the executive committee should never have the right to apply judicial and legislative power or one of them, and the judicial committee should never have the right to apply executive and legislative power or one of them; otherwise, it might finally become the government of right, not the government of people17.
The Constitution of the state also provided the bicameral legislature, the members of which were to be annually elected from the districts in accordance with the amount of taxes paid by their citizens. A certain income and habitancy qualification was set for elected Governor, Senators and members of the House of Representatives. Although the Governor was limited by the Council elected by the both Houses from the number of Senators, he was, however, the most authorized magistrate if compared to the magistrates of other states.
Like the Governor of New York, he was annually elected by the population of the state. However, unlike the one the main magistrate of Massachusetts could individually impose a veto on all the bills, except for those which were accepted by the 2/3 of votes of the both Houses.
He also had sweeping powers exercised with the Council for appointing judges and other public servants.
Judges were appointed for an indefinite term; however, on the request of the both Houses of legislature they could be dismissed from office for the abominable behaviour (impeachment procedure). The police officers were elected directly by the population.
The moderate and wealthy circles of Massachusetts welcomed their new Constitution. In their opinion, it reproduced some of the best elements of the unwritten British Constitution, unreasonably forgotten since the events of 1776. But the Constitution of Massachusetts of 1780 also satisfied many democratic requirements of the people. It was preceded by the explicit Declaration of Rights, in which the principle of division of powers was represented in detail. All basic government authorities (except for judges) were directly (moreover, annually) elected by the population.
Unlike the early Constitutions of other states, the Constitution of Massachusetts of 1780 was not just accepted and discussed by the specially established Convent, but was also passed for ratification by the people. Besides, the Constitutional Convent addressed to the population of the state with the detailed grounding of all the substantive provisions of the new Constitution. In this address the main idea of the Constitution was put in the first place, that is the aspiration to give the government the sufficient power, in order to save the country from drowning in anarchy18.
However, at the same time the address discussed the necessity of the division of powers, provided by means of the system of checks and balances; it also underlined that the power without limitation was neither more nor less than tyranny, and predominance of one power over others would violate the balance and would accelerate disintegration and destruction of the whole governmental system.
Therefore, each branch of the government should also be provided with the authorities to control the others, which would prevent the excessive concentration of power, pernicious for the affairs of the country19.
In the Constitution of the USA the principle of the division of powers was also complemented by the system of checks and balances, and it was arranged in the following way: the executive committee had the right to set a veto on the decision of the legislative body; the Senate had the right to hold back from recommendations and approval of agreements; and also the Congress could declare the war, form and maintain the army. The system of checks and balances was also introduced into the legislative bodies as a bicameral system, elected by different electors and for different terms20.
Such means of mutual control included providing the Governor with the right of a relative veto, and division of the legislative assembly into two Houses. The House of Representatives, called to protect the individual rights of citizens, and the Senate, intended to protect the property of the state, must each individually possess the right of abolition of bills.
Thus, such division of the legislature into two Houses was dictated by the idea that a unicameral legislature, like an individual, is inclined to make mistakes and is not deprived of prejudices. Providing the Governor with the right of veto is necessary in the case, when the preservative facility doesn’t work and both Houses pass an obviously unjustified and unfair act21.
The Massachusetts Constitution also stated that providing the Governor with this authority, there was no reason to be afraid of this authority, because the Governor was also a representative of the people, elected by direct voting, as well as the members of the House of Representatives and the Senate. The Governor was also granted with the right to appoint judges, and this right was carried by him out jointly with the Council.
Such method of appointment was considered to be better, than electing judges directly by people, because it helped judges to avoid dependence on the interested and ambitious persons, inevitably controlling the process of elections by direct vote.
By the same reasons, the appointment of the officials by the Governor was seen to be more preferential than the election of them by both Houses or by one of them. At the same time, the officials remained under the control of people’s representatives and the Senate, provided with the right of impeachment. The appointment of judges for indefinite term was also needed in order to provide their full independence and freedom of judgments at interpretation of laws.
However, the key ideas of the innovative construction of the US Government were first presented in J. Adams’ “Thoughts on Government”¯22, and were later reflected first in the Constitution of Massachusetts and then in the US Constitution. The Founding Fathers believed that the democratic and stable government needed concurrence of decisions, division of powers into executive, legislative, and judiciary braches, and the introduction of the bicameral legislature.
The Constitution of Massachusetts attracted the supporters of constitutional reforms in other states, where the “pro-Virginian”¯ constitution’s defects were distinctly revealed from the very beginning. To our mind, the Constitution of Massachusetts of 1780 could be considered the most democratic and advanced among the constitutions of the American states.