State Constitutions and the Declaration of Independence: The Complex Influence of the Common Law and Montesquieu

The legacy of the Declaration includes early state constitution making, as Gordon Wood notes regarding constitutionalism in the American revolution. That said, the first state constitutions, in late 1775, precede the Declaration. The larger reality is that both these constitutions and the Declaration share a complex spirit, comprising two interconnected influences beyond Lockean liberal philosophy but incorporating it. These are English common law constitutionalism as developed in the prior two centuries and further developed in the American colonies for 150 years, and Montesquieu given his precís in The Spirit of Laws (1748) of the English constitution as uniquely devoted to liberty. Blackstone’s influence in the colonies, noted by Burke in his 1775 speech on conciliation, pulls these together: the first source cited in The Commentaries is Montesquieu on the English constitution. The Declaration’s implicit constitutionalism of republican forms includes the charge, against King and Parliament, of “subject[ing] us to a jurisdiction foreign to our constitution.” A decade before debates about a constitution for the federal union (the latter being another implicit element of the Declaration), the Americans declare a constitution devoted to liberty; encompassing natural law, Lockean equal natural rights, and religious foundations for these along with common law constitutionalism and a civic principle of sacred honor. The state constitutions echo these complex sources and the Declaration’s distillation of them; including the tripartite republican forms endorsed by Montesquieu, and common-law bills of rights. Pennsylvania’s more democratic constitution – dominated by a unicameral legislature – is the exception proving the rule; and is later revised toward tripartite forms. This suggests the coherence of the American founding from 1770s to 1790s, rather than a Lockean moment in 1774-1776 with a stark shift to complex constitutionalism in the 1780s. Lockean liberalism always was incorporated into a deeper spirit of constitutionalism.