2.2.1. The Early Republican Era (1776-1825): Revolutionary Constitutions and Democratizing the Courts


Revolutionary Constitutions:
  • Most colonies, including New York, New Jersey and Pennsylvania, created written constitutions at the beginning of the Revolution in order to fix their fundamental principles as new states.  The constitutions of the three mid-Atlantic states contained very different notions of liberty and self-government.  Pennsylvania’s constitution was considered the most democratic and radical of any former colony; the New York and New Jersey constitutions hewed more closely to traditions and legal principles developed during the colonial era.
  • New York and Pennsylvania continued the constitutional experiment by adopting new constitutions during the early republican era.  Pennsylvania’s 1790 constitutional convention, influenced by the recently-concluded federal convention, took a step back from some of the more radical measures in the 1776 constitution.  New York’s 1821 constitution, enacted at the end of the era, represented a democratic step forward and anticipated the Jacksonian revolution that was about to appear on the American political scene.

 

New York

New Jersey

Pennsylvania

Bill of rights

[ck]

[No

Yes  [details]

Suffrage

1777 –Male taxpayers owning property worth more than £20 or with rental value of more than 40 shillings

1821 – Male taxpayers or males with militia service or who have contributed to highway labor

Black males – must have paid taxes, have net worth of $250

1776 – males owning more than £50 of property

1776 – All male taxpayers

1790 - Same

Balance of powers between branches of government

1821 – Court system revised:  Highest court (Court for Trial of Impeachments and Correction of Errors) composed of chancellor, state senators and supreme court justices

Chancellor and supreme court justices must retire at age 60 (the anti-Kent amendment)

 

1776 – Term limits for members of executive council, assembly

7-year term for supreme court justices

Other important provisions

 

 

1776 - Foreigners may own property, become citizens after 1 year residence

Public school system to be established



Democratizing the Courts:

  •  The political and social upheavals of the Revolution (1775-83) and the early republican period, including the evolution of a two-party system and the Jeffersonians’ rise to power, included vigorous sparring over the role of courts in a democratic society.  That sparring was most prominent in the mid-Atlantic states.
  • Pennsylvania’s supreme court, led by Chief Justice Thomas McKean, acted aggressively to sustain the Revolutionary cause in the face of repeated British invasion and occupation.  McKean favored vigorous prosecution of suspected traitors, tempered by leniency in sentencing.  After the war, when Federalist and Jeffersonian factions published vitriolic and often scandalous political articles against each other, McKean sided with the Federalists and favored liberal use of libel laws to discourage Jeffersonian excess. 
  • By 1804, Federalism had largely disappeared in Pennsylvania and the struggle now was between moderate and radical Jeffersonians.  In order to reduce the power of higher-level judges perceived as too conservative, radicals in the Pennsylvania legislature enacted a “$100 Law” greatly expanding the range of cases local courts could handle.  McKean, now the state’s governor, vetoed the law.   The same year, a frustrated legislature impeached the supreme court’s two Federalist judges; the judges escaped removal only narrowly.  McKean then negotiated a compromise giving local courts more power and Chief Justice Edward Tilghman, who joined the court in 1806, steered it away from political controversy. 
  • New York’s first state governmental system was similar to its complex colonial system.  It included a Chancellor who decided all “equity” cases (that is, those calling for relief other than money damages; a Court of Errors and Appeal consisting of the Chancellor and 32 state senators, which served as the state’s highest court; and a Council of Revision, also including the Chancellor, which could veto legislation.
  • In 1815, James Kent was appointed Chancellor.  Kent, one of the giants of early American law, was responsible for many advances in New York law but he resisted the growing sentiment among New Yorkers for more decentralized and democratic government he also persuaded the Council of Revision to limit the state’s ability to raise military forces for the War of 1812.  As a result, Kent and the Council became unpopular and in 1821 the state adopted a new constitution that abolished the Council and required the chancellor to retire at age 60, which forced Kent off the bench in 1823.  Kent’s successor, Reuben Walworth, proved considerably more receptive to the wave of democratic and economic reforms that came to New York during his tenure (1823-1847).

“That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family or sett of men, who are a part only of that community.”  (Pennsylvania Constitution - 1776, Article 5)

 

“By this mode of election and continual rotation [term limits for state officials], more men will be trained to public business, … the business will be more conveniently conducted, and moreover the danger of establishing an inconvenient aristocracy will be effectually prevented.”  (Pennsylvania Constitution - 1776, Article 19)




Timothy Matlack, one of the drafters of Pennsylvania's 1776 constitution - courtesy Wikimedia Commons