Meanwhile, the people of Massachusetts were progressing steadily toward a constitutional system that would have a permanent impact on all future constitutions, including the Federal Constitution of 1787. On May 5, 1777, the legislature called upon the electorate to choose representatives who would not only serve as legislators but would also work with the twenty-eight members of the Council, or upper house, to draft a new constitution for submission to the voters. Despite widespread opposition to using the State assembly as a constitutional convention, the assembly approved the constitution on February 28, 1778, only to see it flatly rejected less than a week later by a vote of 9,972 to 2,083. This became the first time in American history in which all the free adult male citizens were allowed to participate in the ratification of a proposed constitution.16
During the course of this referendum, some 180 returns from towns in Massachusetts were drafted to explain local objections to the proposed constitution. The most important of these was the celebrated Essex Result of Essex County, written mainly by Theophilus Parsons, a young lawyer who later became the Chief Justice of the Massachusetts supreme court. The Essex Result, an essay in political and constitutional theory, has often been compared favorably to The Federalist because of its learned and insightful treatment of political subjects, particularly the separation of powers principle. Rejecting legislative supremacy and a pure separation of powers, the Essex Result advocated a complex, carefully balanced form of government that provided a check-and-balance system to prevent one branch of the government, particularly the legislative, from encroaching upon the powers of the other branches.17 In 1781, Thomas Jefferson published his Notes on the State of Virginia, which made a similar case against legislative supremacy. Concentrating all the powers of government in the same hands, said Jefferson, “is precisely the definition of despotic government. . . . An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies . . . that no one could transcend their legal limits, without being effectually checked and restrained by the others.”18
With the defeat of the 1778 constitution, the Massachusetts House of Representatives called for another referendum. In town meetings across the State a majority of the electorate now voted in favor of calling a State convention to draft a new constitution. The legislature thereupon announced new elections on June 21, 1779, for a constitutional convention, which met in Cambridge on September 1. In sharp contrast to the Federal Convention of 1787 that met in Philadelphia, in which there was widespread participation among the delegates in the framing of the document, the Massachusetts convention appointed a committee of thirty delegates to perform the task. This committee then appointed a subcommittee consisting of James Bowdoin, Samuel Adams, and John Adams to do the work. This group then proceeded to turn the whole matter over to John Adams, who singlehandedly wrote both a new constitution and a declaration of rights. These documents were accepted with only minor revisions after four months of deliberation, and a proposed text was presented to the towns in March 1780. They approved the document and on October 25, 1780, the new constitution went into effect.
The Massachusetts Constitution of 1780 stands today as a tribute to the political genius of John Adams.19 Although it has been substantially amended over the years, it continues to serve as the fundamental law of Massachusetts after more than two centuries. It is thus the oldest written constitution in the world that is still in force. The influence of the Massachusetts experience on American constitutional development, at both the State and national levels, has been substantial. The convention of 1779–1780 was the first successful constitutional convention in which the people participated not only in the selection of delegates to a special convention but also in the ratification of the finished document. It thereby established democratic principles of procedure for the formation and acceptance of constitutions based on the sovereignty of the people. With few exceptions, the Massachusetts precedent became the accepted template throughout the Union after 1780 and also provided the procedure that the Framers of the American Constitution would follow in 1787.20
Likewise, the Massachusetts Constitution had an enormous impact on American constitutional theory, for it was in this constitution that the new theory of separation of powers, a theory based on the realization that separated powers must be checked and balanced if they were to remain separate, was first implemented. This is the uniquely American system that the several States adopted when they began rewriting their constitutions after 1780 and the one that the Framers incorporated into the new Constitution drafted in Philadelphia.21
On the eve of the Federal Convention, it may thus be seen, the American people had clearly outgrown the constitutional immaturity of their revolutionary youth. Through trial and error, they had advanced to a whole new understanding of constitutionalism, republicanism, and popular sovereignty in just ten years. Prior to the American Revolution, the term “constitution” was commonly understood to refer to the fundamental principles upon which government is based. Now it was seen as something more—as a written document originating with the people that authorized the establishment of a government with limited powers. For the first time, constitutions were readily seen as distinct from, and superior to, statutes enacted by legislative assemblies. The spell of legislative supremacy cast by Parliament and the English constitutional system had been broken, at least in theory if not always in practice. Constitutions were now entitled to the elevated status of a higher or supreme law because they sprang not from the legislature but from the people, through constitutional conventions creating them and ratifying conventions approving them.22 The new separation of powers doctrine, favoring some functional overlap among the three branches of government through a check-and-balance arrangement that would ensure their independence, went hand in hand with this new view of constitutionalism, because it held the legislature in check and promised to prevent the return of legislative supremacy.
THE ANNAPOLIS CONVENTION
The catalyst for the Federal Convention of 1787 that wrote the Constitution of the United States was not the Continental Congress sitting in New York but the several States, led by the State of Virginia. What sparked the proceedings that led to the drafting of the Constitution was a commercial dispute between Virginia and Maryland over the taxing of shipping on the Potomac River and Chesapeake Bay. Led by James Madison, representatives from the two States met in 1784 at Mount Vernon, the home of General Washington. There they were able to settle their differences, but left unresolved questions regarding the interests of other States bordering Virginia and Maryland. Madison then persuaded the Virginia legislature to call a meeting of all the States to discuss trade problems, hoping that the participants might consider the larger issue of giving the Continental Congress the power to regulate commerce.
Virginia’s call for a convention was heeded, and in the summer and early fall of 1786 twelve delegates from five States (Virginia, Pennsylvania, New York, New Jersey, and Delaware) convened in Annapolis, Maryland. Although the other states (including Maryland, curiously enough) did not send a representative, and little was actually decided, the Annapolis Convention proved to be important in that it set the stage for the Federal Convention the next year. Conspicuous for their leadership at the Annapolis Convention were James Madison and Alexander Hamilton, who would later figure prominently in the drafting and adoption of the Constitution. At the urging of Hamilton, the Annapolis delegates voted on September 14, 1786, to recommend to all thirteen States that they hold another convention “to meet in Philadelphia on the second Monday in May next, to take into consideration the situation in the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”23
At this juncture, the Continental Congress could have assumed a leadership role by officially sponsoring the convention, or at least endorsing it. Instead, it remained a passive observer and took no action. Seizing the initiative, the Virginia legislature stepped forward with a resolution in November 1786 urging the other States to send delegates to Philadelphia. “The Crisis is arrived,” declared the Virginia General Assembly, when the American