The People as Constituent Power 163
power is needed to produce a constitution than to pass ordinary laws or carry on
ordinary executive duties. Thus, in New Hampshire, New York, Delaware, Mary-
land, North Carolina, and Georgia, the assemblies drew up constitutions only after
soliciting authority for that purpose from the voters. In Maryland and North Car-
olina there was a measure of popular ratification.
CONSTITUTION- MAKING IN NORTH CAROLINA,
PENNSYLVANIA, AND MASSACHUSETTSThe popular pressures that helped to form American political doctrine are best il-
lustrated from North Carolina, Pennsylvania, and Massa chusetts.^4
In North Carolina class lines had been sharply drawn by the Regulator move-
ment and its suppression. The people of the back- country even inclined to be loy-
alist, not eager for an independence that might only throw them into the hands of
the county gentry. In the turbulent election of October 1776 the voters knew that
the assembly which they elected would draft a state constitution. There was no
demand for a convention to act exclusively and temporarily as a constituent power.
But several counties drew up instructions for the deputies, in which the emerging
doctrine was set forth clearly.
Orange and Mecklenburg counties used identical language. This is a sign, as in
the case of identical phrasing in the French cahiers of 1789, where the matter has
been carefully studied, that some person of influence and education, and not some
poor farmer ruminating in his cabin, had probably written out a draft. Still, the
public meetings of both counties found it to their taste. “Political power,” they said,
“is of two kinds, one principal and superior, the other derived and inferior.... The
principal supreme power is possessed only by the people at large.... The derived
and inferior power by the servants which they employ.... The rules by which
the inferior power is exercised are to be constituted by the principal supreme
power.... ”^5 In other words, government was not a form of guardianship. Office
was to be no longer a perquisite of the gentry, or “an aristocracy of power in the
hands of the rich,” to use their own language, but a form of employment by the
people, whom they did not hesitate to call “the poor.” Mecklenburg favored a uni-
cameral legislature, Orange a bicameral one, but both called for a separation of
powers. It was not that any organ of government should enjoy independence from
the electorate (the essence of balance- of- power theory in the European, British,
and loyalist view), but rather that the various functions of government should be
defined and distributed among different men, to prevent what had happened in
colonial times. The fact that before 1776 the council had possessed executive, leg-
islative, and judicial functions, and that members of the assembly had served as
justices of the peace, or had their relatives appointed judges and sheriffs, was the
basis on which North Carolina had been dominated by small groups of gentry. It
4 Here I am indebted, without sharing all his conclusions, to E. P. Douglass, Rebels and Demo-
crats: the Struggle for Equal Political Rights and Majority Rule during the American Revolution (Chapel
Hill, 1955).
5 Ibid., 126.