Marc Kruman has a bone to pick with Gordon Wood. Although he describes Wood's THE CREATION OF THE
AMERICAN REPUBLIC as "magnificent" and "brilliant," he also insists that its account of early state constitutions is
fundamentally flawed, and he frames his book as a response. According to Kruman, Wood misunderstands how early state
constitution-makers understood bicameralism, the separation of powers, and legislative power. In fact, he claims that Wood's
interpretation of these constitutions is almost 180 degrees off; for what underlies the initial state constitutions is not civic
republicanism but the federalist science of politics that Wood claims emerged only in 1787. Kruman did not convince me to
discard my dog-eared copy of Wood's book, in part because Wood's account is more nuanced and complex than Kruman
seems to suggest. Nevertheless, Kruman's volume, although uneven, does illuminate important aspects of early state
constitutionalism ignored or slighted by previous scholars. I found BETWEEN AUTHORITY AND LIBERTY to be engaging
and informative, but ultimately unpersuasive. Let me explain why.
Central to Kruman's argument is his insistence that those who framed the early state constitutions distrusted legislative power,
viewed it as a threat to liberty, and made major efforts to curtail it. Although no scholar claims that state constitution-makers
altogether ignored the problem of legislative tyranny, Kruman's emphasis on this problem does contradict the standard view.
Scholars such as Gordon Wood, who de-emphasize the concern about legislative tyranny, have observed that state legislatures
framed the initial state constitutions and, except in Massachusetts and New Hampshire, the constitutions took effect without
popular ratification. From this they conclude that the distinction between fundamental law and legislation was initially unclear.
Yet in one of the book's strongest chapters, Kruman disputes these contentions. Placing state constitution-making in the context
of the debate over Parliamentary power and the character of the English Constitution, he demonstrates that the distinction
between statute and constitution, as well as the need for distinct bodies to undertake these different types of law-making, was
well understood even prior to 1776. He also shows that the provincial congresses or conventions that drafted early state
constitutions were--and understood themselves to be--temporary bodies, "with no permanent institutional interest in the form of
government."(p. 7) Finally, he argues that state framers from the outset recognized the citizenry's right to choose its form of
government and shows how they experimented during the first decade of independence with various mechanisms, ranging from
a period of consultation with the public during deliberations to formal ratification, to gauge popular support for proposed
constitutions.
Considerably less satisfying is Kruman's account of state declarations of rights. Kruman believes that the crucial question is
whether those declarations imposed limits on state legislatures as well as state executives, and he proves that they do. Yet he
fails to consider the character of those limits and their enforcement, perhaps because he assumes that state declarations were
similar in character to modern bills of rights. In fact, they were not. The early state declarations of rights--a mixture of structural
concerns, political maxims, and rights guarantees--literally served to declare the principles by which the government was to
operate. Even the rights guarantees were usually hortatory in character, as indicated by their use of "ought" in place of the more
mandatory "shall," and were not susceptible to judicial enforcement. They were addressed primarily to the people's
representatives, who were to be guided (rather than constrained) by them in legislating, and to a liberty-loving and vigilant
citizenry that was to oversee the exercise of political power. As the Delaware Declaration of Rights summarized it, "the Right of
the People to participate in the Legislature is the Foundation of Liberty and of all free Government." Thus, early state
declarations of rights failed to address the problem of majority faction, perhaps the preeminent problem for the federalist
political thought that Kruman claims underlies state constitutions.
Likewise questionable is Kruman's insistence that early state constitutions, in mandating a separation of powers, were as
concerned with tyrannical action by state legislatures as by state executives. Although state provisions did forbid legislative as
well as executive encroachments, the violation of the separation of powers that they most guarded against was dual
office-holding, a violation historically associated with executive efforts at corrupt influence. More importantly, the restraints
imposed by state constitutions to safeguard the separation of powers were primarily on state executives. Most state
constitutions withdrew from them various powers, such as the veto and the pardoning power, which had been traditionally
understood as executive powers. In exercising those powers that remained, state executives were dependent on state
legislatures, which in most states elected them annually, and on councils whose members were often selected by the state
legislature. In contrast, most state constitutions granted to state legislatures powers traditionally exercised by executives, such as
the appointment power, and--in marked contrast to nineteenth-century state constitutions--imposed few limits on their plenary
legislative power. This constitutional distribution of powers suggests that state constitution-makers' concern was primarily with
executive violations of the separation of powers.
Kruman is on solider ground in his examination of bicameralism, which he views as aimed at preventing legislative tyranny. He
recognizes that bicameralism was not designed to reflect different social orders or, except in Massachusetts, to provide a
separate house to represent property. In fact, his comparison of colonial government with early state constitutions demonstrates
a marked democratizing of state upper houses. In all but three states, the same electorate that chose members of the lower
house also selected senators. Only three states demanded considerable wealth of their senators, and even in these states, the
property requirements were "substantially lower than the actual wealth of colonial councillors and even assemblymen."(p. 137)
Yet he does not fully consider the implications of these findings.
If bicameralism was designed to prevent legislative tyranny, it was legislative tyranny of a particular sort. The states'
unwillingness to create an upper house less responsive to the people reflected a judgment that legislative tyranny would come
from a faithless legislature rather than from one following the tyrannical wishes of the majority. Once again, the specter of
majority faction had no effect on state constitutional design.
Kruman is certainly correct in claiming that state constitution-makers did not idealize state legislatures. But they did believe that
legislative abuses could be controlled by annual elections, broad suffrage, and the instruction of representatives. Consequently,
they felt comfortable concentrating governmental power in legislative hands.
Only in the nineteenth century, when faith in the electoral connection waned, did the states move toward a more balanced
government. In contrast, the Federal Constitution from the outset structured government to avoid legislative despotism and
majority faction. Because Gordon Wood's account of state constitutionalism recognizes its distinctiveness, whereas Kruman's
does not, Wood's remains the superior account.
