162 Chapter VIII
convention engaged in writing a constitution not to be embroiled in daily politics
and problems of government. And it is hard to live voluntarily under restraint. In
complex societies, or in times of crisis, either government or people or some part
of the people may feel obliged to go beyond the limits that a constitution has laid
down.
In reality, the idea of the people as a constituent power, with its corollaries, de-
veloped unclearly, gradually, and sporadically during the American Revolution. It
was adumbrated in the Declaration of Independence: the people may “institute
new government.” Jefferson, among the leaders, perhaps conceived the idea most
clearly. It is of especial interest, however, to see how the “people” themselves, that
is, certain lesser and unknown or poorer or unsatisfied persons, contributed to
these distinctive American ideas by their opposition to the Revolutionary elite.
There were naturally many Americans who felt that no change was needed ex-
cept expulsion of the British. With the disappearance of the British governors, and
collapse of the old governor’s councils, the kind of men who had been active in the
colonial assemblies, and who now sat as provincial congresses or other de facto
revolutionary bodies, were easily inclined to think that they should keep the man-
agement of affairs in their own hands. Some parallel can be seen with what hap-
pened in Europe. There was a revolution, or protest, of constituted bodies against
authorities set above them, and a more popular form of revolution, or protest,
which aimed at changing the character or membership of these constituted bodies
themselves. As at Geneva the General Council rebelled against the patriciate,
without wishing to admit new citizens to the General Council; as in Britain the
Whigs asserted the powers of Parliament against the King, without wishing to
change the composition of Parliament; as in Belgium, in 1789, the Estates party
declared independence from the Emperor, while maintaining the preexisting es-
tates; as in France, also in 1789, the nobility insisted that the King govern through
the Estates- General, but objected to the transformation of the three estates into a
new kind of national body; as in the Dutch provinces in 1795 the Estates- General,
after expelling the Prince of Orange, tried to remain itself unchanged, and resisted
the election of a “convention”; so, in America in 1776, the assemblies that drove
out the officers of the King, and governed their respective states under revolution-
ary conditions, sought to keep control of affairs in their own hands, and to avoid
reconstitution at the hands of the “people.”
Ten states gave themselves new constitutions in 1776 and 1777. In nine of these
states, however, it was the ordinary assembly, that is, the revolutionary government
of the day, that drafted and proclaimed the constitution. In the tenth, Pennsylva-
nia, a constituent convention met, but it soon had to take on the burden of daily
government in addition. In Connecticut and Rhode Island the colonial charters
remained in force, and the authorities constituted in colonial times (when gover-
nors and councils had already been elected) remained unchanged in principle for
half a century. In Massachusetts the colonial charter remained in effect until 1780.
Thus in no state, when independence was declared, did a true constituent con-
vention meet, and, as it were, calmly and rationally devise government out of a
state of nature. There was already, however, some recognition of the principle that
constitutions cannot be made merely by governments, that a more fundamental