Wars of State-building and constitution-making
The American Revolution was a breach in the existing order; it was a bloody revolutionary triumph achieved not through an inclusive and rational debate, but through the effective use of force.
However much Hanna Arendt (1963, p. 169) insists on “the generation of political power through the mutual contract by which people bind themselves together in order to form a community,” in delving into the specific facts that marked the emancipation of the 13 North American colonies even she had to observe that:
The force of this power, engendered by action and kept by promises, came to fore when, to the great surprise of all the great powers, the colonies.. won the war against England.
(Arendt, 1963, p. 175, italics mine)
The war against England was, certainly, won, and it was won through military organization and not through the free and sincere promises kept by the separatists. It must be not forgotten, in addition, that the other European “great powers” did not watch passively the action of the American patriots enforcing their promises. American independence was possible because absolute monarchies such as both France and Spain, representing the contrary of the American republican ideals, provided the rebels with crucial military and financial support. The aspiration of founding a new political space in which democracy finds its seeds is undermined when the genealogical analysis reveals the wide range of coercions that accompanied the secession. Such coercions have simply nothing to do with “mutual consent,” “covenants,” and the “free and sincere promises of men together” but with the expulsion of some elements as a result of shaping a new political community. The American revolutionary war was won against someone. There was a replacement of a cadre of organized men, able to enforce a legal order, through arms by another one. The triumphant soldiers of the battles of Saratoga or Yorktown forced the migration of the losers, namely, the columns of around 80,000 loyalists that left the American States and went to England, to the other colonies of the Crown in the West Indies, or north to Canada where the vast majority of the British subjects finished their journey.
Their properties in the American States had been confiscated without qualms (Palmer, 1968, p. 359) even though “possessing property” was considered an “inherent right” according to some of the States' Constitutions.If some modern political analysts have distorted the determinacy of the means of warfare in explaining the revolutionary success, it may be due to the narratives displayed by the American founding generation itself. As we have seen, the colonists had already donned blinkers in relation to the exclusions and the violence that, during the times of the Crown's sovereignty, had carved their privileged position over other groups. Barely a few years before the clash, the revolutionaries themselves were not considered oppressed (Middlekauff, 2007, pp. 5-6). As Gordon Wood remarks in the opening of his magnificent study on the creation of the American Republic, the Americans of that time knew that they were probably freer and less burdened with cumbersome feudal and hierarchical restraints than any part of mankind in the eighteenth century (Wood, 1998, p. 3). After all, the Americans of the eighteenth century had been born under the rule of the English constitution emerging from the 1688 Glorious Revolution which was considered even in the New Continent ”the best model of Government that can be framed by Mortals” (so Adams quoted by Wood, 1998, p. 11). A perception that would suddenly change when the inhabitants of the colonies (Green, 1968, p. 20) began to realize that the British parliamentarian supremacy established in the aftermath of the expulsion of James the II also represented British parliamentarian arbitrariness (Amar, 1987, p. 1430). The transformation of Britain into a world power and its involvement in several military adventures required huge amounts of money and, in their purpose of increasing the sources of revenues, the landowners that dominated the British Parliament turned their view, as the eighteenth century advanced, to their wealthy American counterparts.
The Seven Years War finished in 1763 with an overwhelming victory for the British but the national debt the war had represented was overwhelming too, and most of the costs were due to the permanent stationing of British military forces in mainland America. The expenditure in order to maintain such an army would carry on since the conflicts with the indigenous peoples in the West would not be mitigated, and Britain had the intention to consolidate the new territorial gains obtained with the war. Then was when Grenville's government decided to tighten the screws on the colonies by imposing certain taxes on trade. The Revenue Act of 1764, or Sugar Act as it was popularly called, was a relevant step in that direction and was easily passed in the British Parliament because (an issue that later would appear as one of the Americans' most fundamental claims) the colonies were unrepresented in the British Houses (Middlekauff, 2007, pp. 61-73). But the Sugar Act was just the beginning. Taxing the colonies without the consent of the American representatives would still lead to more serious and pressing crises such as the rioting and mobbing that ensued with the approval of the Stamp Act in 1765.It might be reasoned that, given such antecedents (the relatively liberal frame in which the American rebellion took place and a vindication in the first stages centred in economic demands) it is not incoherent that the contemporaries of independence preferred to explain themselves by associating their political struggle with the gathering of people in all sorts of meetings and congresses than with the killing of British soldiers.
But the simple historical truth is that a harsh conflict was needed to make the American constitutional developments flourish. What is in fact particular to the American Revolution is that the American States' constitutions were being drafted in the midst of a war of secession, the American case thus being a scenario in which the violence displayed both during State-building and during the constitution-making process is intertwined at the very same time.
Most of the States' Constitutions were passed in a moment of uncertainty on the outcome of the fight: ten States out of 13 gave themselves new constitutions in 1776 and 1777 (Palmer, 1968, p. 342). The possibility of the total military defeat of the rebels, such as when George Washington had to remain in retreat at Valley Forge in the winter of 1777 after losing Boston, New York, and Philadelphia (Ackerman, 2019, p. 364) was even overshadowing most of the constitutionmaking process, a circumstance that in the case of being consummated would probably have deprived the American constitutional proposals of any force.The immediate call of the Continental Congress for the adoption of written constitutions for the States (Topf, 2019, p. 59) was conceived as a move to confer legitimacy to the revolutionary struggle while the challenge against the previous order was taking place. The constitutive initiative launched by the American elites (as soon as they definitely had joined the cause of the independence) sought, in the first instance, to reduce the vacuum of authority for the shortest time possible and, in the second instance, and probably more important, to galvanize the masses around the defence of their rights in order to mobilize them for the military goals.
The constitutional creation of the American States might be in that fashion considered as a means of recruiting manpower to fight in the war. If all men were declared “equally free and independent” and entitled with rights, as for instance the Virginia Declaration of Rights drafted by George Mason in June 1776 established, that was because the highest number of mobilized men was needed to face up to the British and their local followers. The generosity in recognizing liberties and in designing participative institutional structures instigated by the urgency of gaining the widest popular support to combat the royalists would have thorny consequences, once the war concluded, for the stability of the constitutional system.
The American Revolution sharply illustrates to what extent the design of a participative government and the recognition of fundamental rights emerge as incidental outcomes of the struggle for power and why they could be perceived as concessions bestowed by the elites to the lower strata of the society in order to consolidate the assault of the former to the rule of the new political body. As some historians explained many decades ago, the shifting point in the relatively harmonious relations between Britain and its North American colonies, up to 1763, may be situated in the conflict around the ambitions of rival factions among the American elites (see, for instance, Green, 1968, p. 28). The debate on the political status that the colonies deserved in their relationship with Britain represented the occasion for one faction to gain political predominance at the expense of its rivals as happened with the opposition to the Stamp Act in
Violence and constituent power in America 105 Connecticut or in Rhode Island in 1765 (Middlekauff, 2007, pp. 106-107). Thus, it was when some of such factions within the American elite began to realize that they would never enjoy the privileges and the opportunities recognized for their counterparts in Britain and, furthermore, that they began to understand that their property rights were being threatened by British rule, that their support of the Crown began to stagger. But to get rid of British dominion and to fight and defeat the loyalists, such circles needed the support of the popular classes. It was in that time, only shortly before the Revolution, around 1774, that the idea of involving the people in the rule of society began to circulate (Bouton, 2007, p. 31; Turner Main, 1968, p. 322). Prior to the moment in which the rupture with Britain was looming, the democratic approaches developed by some theories, such as by the Whigs, understood that a modicum of democracy had to be balanced by equal parts of aristocracy and monarchy, obviously excluding ordinary people from holding any office.
Still, as late as the outbreak of open hostilities between Great Britain and the 13 colonies in the spring of 1775, there were many Americans who felt that no political change was needed except the expulsion of the British (Palmer, 1968, p. 342). Colonial institutions such as the States' Houses elected before the war were overwhelmingly controlled by representatives coming from the highest economic and social ranks, and they had no desire to relinquish their predominance in the management of public affairs. On their concept of property, for instance, the American oligarchy did not provide any innovation in comparison with the ideas developed by the English Whigs (Adams, 1980, p. 190). Their only ambition was related to ensuring the protection of their wealth in a way that British Parliament had been incapable of doing in North America, and it was only in order to achieve said goal that the inclusion of the right to property in a written constitution was accepted. Consequently, since the safeguard of property rights through a Constitution was a concern of the ones that had something to protect, the first American Constitutions did not place restrictions on the individual's rights to dispose of his property, nor did constitutional framers doubt the utility of imposing property qualifications for suffrage or office holding (Rankove, 1981, p. 299). In following the path of the origins of the right to property in the constitutional language, it is not difficult to find that, both in the State's Constitution and later in the Federal one, the well-to-do were behind such developments precisely to contain the rising democratization that resulted from the war and the break up with the British system.The regime change, however, was accompanied by an extension of political participation to wider parts of American society. The military command had no other alternative but to include people of humbler origins in the decision-making processes if it had the intention of winning the fight. After all, modest farmers were falling before one of the best equipped armies in the world (Bouton, 2007, p. 49) and the leaders of the pro-independence movement could not overlook them in the creation of the new constitutional framework, at least while the war was ongoing. Whether in the case of assemblies inherited from the previous regime or in the case of new representative chambers (indistinctly of the fact if
they had been transformed through legal or extra-legal means), ordinary yeoman and artisans gained more presence with the change. Being because of the greater number of representatives established for the legislatures, or being because, with reduction of the property qualifications for voting, people chose more men of their social condition, the point is that politics were open to new agents. The extent of this phenomenon varied from moderate in Virginia and Maryland to radical in New Hampshire and New Jersey, but everywhere the same process occurred (Turner Main, 1968, p. 335).
The American elite, notwithstanding, did its best to conduct the reconstitution of power according to its interests, which meant giving the populace as little institutional weight as possible. One common strategy adopted relied on avoiding the election of constituent Conventions to discuss and pass the drafting of fundamental rules. In a revolutionary atmosphere, the calling of elections to a conventional body might have instigated the hasty entry in the institutions of new elements. While it is true that the presence of small farmers, mechanics, and moderate properties had increased in the provincial congresses from 1774 (Turner Main, 1968, pp. 328-329), wealthy merchants, lawyers, and large property owners still had a strong influence in the representative instances in which the elaboration of constitutions might be placed. In Maryland and North Carolina, the constitution-making process would be provided with a measure of popular ratification (Palmer, 1968, p. 343) but the constitutional design had been already coined by an upper-class-dominated assembly. The central role of the elites in exercising the constituent power within ordinary assemblies would also be the rule, apart from the mentioned experiences in Maryland and North Carolina, in New Hampshire, New York, Delaware, and Georgia. While in Rhode Island and Connecticut there would be no constitutionmaking process at all, and the colonial charters would remain in force for decades (in Massachusetts the colonial charter was maintained until 1780), the only place in which a constitutional Convention was envisaged was also the scenario in which things got out of hand for the conservatives: Pennsylvania. Pennsylvania was a breeding ground for the radicalization of the revolution (Bouton, 2007, p. 33; Palmer, 1968, pp. 344-345) and it would be on occasion of Pennsylvania’s constitutional change that social turbulences among Americans, particularly intense in the following decade, would be inaugurated.