The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States

Abstract

In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

In 1804, an anonymous contributor to the Pennsylvania newspaper the Aurora posed a stark challenge to the concept of judicial review. The idea that the Pennsylvania Supreme Court should arrogate to itself the right to determine the constitutionality of laws had become a topic of heated debate in the wake of the federal judiciary’s decision in Marbury v Madison (1803). But, as this anonymous writer argued, in Pennsylvania, at least, there was clear precedent to suggest that the judiciary did not and could not possess such a power.¹ The unelected judiciary, they explained, could not serve to arbitrate the constitutionality of legislation, and for it to do so would be distinctly unrepublican. Instead, the founders of the state’s republican constitution had always intended this power to be lodged in the hands of the people, exercised through an elected constitutional guardian known as the Council of Censors.² The author’s subsequent argument that this principle had carried through into the Constitution of 1790, despite the Council of Censors’ abolition, meaning that only a new constitutional convention could determine the constitutionality of legislation, was as dubious as it would be politically and legally impractical. But their evocation of the Council of Censors as a more ‘republican’ alternative to the exercise of constitutional review by the courts is arresting, and points towards a now largely forgotten debate about the nature of constitutional guardianship in the early republic in which the Council of Censors, and Pennsylvania’s radical constitution, played a central role.

Although Pennsylvania was among the last states to write a new constitution in 1776,³ when the state’s Constitutional Convention finally met it wrote by far the most radical and idiosyncratic of all the state constitutions. In place of the bicameral legislature adopted in every rebellious colony other than Georgia, the Pennsylvania Constitution created a powerful unicameral legislature, a weak, plural executive, and a judiciary whose members were subject to septennial renewal. In order to maintain the subordination of its single legislature to the people, the Constitution’s framers also instituted a system of annual elections in which all male taxpayers over 21 were eligible to vote and required that all legislation be adopted only provisionally until it could be ratified a year later by the following session of the Assembly, after it had been reviewed by the people at large.⁴ Its most striking feature, however, was the creation of the Council of Censors, an unusual institution elected every seven years in order to ‘enquire whether the constitution has been preserved inviolate in every part’.⁵ As the Constitution made clear, this elected guardian of the constitution would be afforded broad powers of constitutional surveillance and control.

Of the original 13 states, none adopted an analogous institution, although Vermont, then a rebellious territory of New York and not an independent colony, would later. Nor would the idea of a Council of Censors be seriously considered at the Federal Convention 11 years later. By 1790, the institution had been eliminated from even the Pennsylvanian Constitution in a thoroughgoing revision which brought the state Constitution in line with its bicameral and presidential counterpart at the Federal level. Nor has the Council of Censors enjoyed a positive reputation among historians of the revolution, if they have treated it at all. For Gordon S Wood, for example, the creators of the Council of Censors had ‘pulled a monster out of Roman history’ as they naively sought to enshrine popular power above all else, without a developed notion of constitutional judicial review.⁶ If less hyperbolic, many other historians have reached a similar verdict, condemning the Council of Censors either as a naive relic of classical Republican nostalgia for antiquity, or more cynically as a tool by which the partisans of Pennsylvania’s radical party sought to maintain their power by preventing constitutional change.⁷ Even more recent histories of the Pennsylvania Constitution, which generally take a less negative view than their nineteenth- and twentieth-century forebears, have, in general, presented the Censors as a means of restricting the ability of the Constitution’s opponents to amend it.⁸ David W Houpt has even argued that the Council of Censors is emblematic of the ‘undemocratic features’ of the Pennsylvania Constitution.⁹ As this article demonstrates, however, these accounts minimize the extent to which the Council of Censors—and the writings which inspired it—represented a crucial moment of innovation in the history of constitutionalism, whose absence from most accounts of both revolutionary and world constitutionalism marks a serious lacuna in existing scholarship. Far from an unusual or monstrous aberration, and despite its subsequent rejection, the Council of Censors played an essential role in defining the terrain of American constitutional thinking at the moment of its inception.

The origins, purpose, and creation of the Council of Censors remain largely misunderstood, to the detriment of serious understanding of its profound historical importance. As this article shows, most accounts of its origins rest upon tenuous evidence, contradicted by most contemporary accounts, which have occluded our understanding of the body’s purpose. In fact, the Censors were the product neither of the partisan motives of the state’s radical party, nor of misplaced antiquarian reveries and found only partial models in the constitutions of the ancient world. Instead, the need for such an institution arose from a new understanding of what it meant to have a ‘constitution’ which had begun to emerge across the United States, as the old notion of a constitution as a frame of government gave way to a theory of the constitution as the embodiment of the popular will, partly in opposition to fears about legislative overreach arising from the colonists’ dispute with the British Parliament. Only in Pennsylvania, however, would a series of radical pamphleteers also begin to speculate about how to guarantee the supremacy of that constitution over the ordinary institutions of the state. This notion is now associated with the familiar distinction between the people’s ‘Constituent power’, by which they create the constitution, and the ‘Constituted Powers’, political institutions whose authority derives from and is bound by the constitution, a distinction usually attributed to the philosophy of Emmanuel-Joseph Sieyès.¹⁰ In fact, however, this distinction first arose from the political experience of the American Revolution, and underwrote the Council of Censors, the first institution designed to police the delineation between the two.

In its final section, this article charts the course of the Council of Censors’ failure, both at the state level in Pennsylvania and as a potential model for federal constitutionalism. At the state level, the institution failed in no small part due to its politicization, as it became the arena for increasingly fraught battles over the existence of the state Constitution—including its own existence—until it was eventually abolished extralegally.¹¹ At the federal level, meanwhile, the body was rejected as too weak to effectively perform its duties and constitutional guardianship as such rejected as threatening to the supremacy of the legislature. Consequently, the model of representative government restrained by a strictly enforced constitutionalism which the Council of Censors promised was rejected in favour of the system of checks and balances, by which the constitution would be preserved by the counterposing of conflicting institutional interests. Ironically, however, the vision of constitutionalism from which the Council of Censors originally emerged would ultimately triumph in the United States—with the exception that it would be the apolitical judiciary and not the distinctly political Council of Censors which would enforce it. On the basis of this new history of American constitutionalism, this article concludes by outlining what lessons can be drawn from the debate on the Council of Censors for contemporary thinking about constitutionalism, constitutional guardianship, and judicial review.

I. THE COUNCIL OF CENSORS

When the authors of the Pennsylvania Constitution of 1776 finally met to write a new constitution for their state, they eschewed a great deal of prevailing wisdom in revolutionary America. Although Thomas Paine’s Common Sense had inspired some support for ‘democratic’ unicameral or ‘simple’ governments, this was not reflected in the constitutions created by most states.¹² Across the thirteen colonies, contemporaries saw a single legislative assembly as liable to lead to tyranny and so opted for a division of legislative power between two distinct chambers.¹³ In rejecting this model, Pennsylvania was alone but for Georgia. But this did not lead the Constitution’s authors to adopt a system of ‘government by assembly’ or ‘legicentrism’. Rather, as Maurice Vile has argued, they placed stricter controls on legislative power than most other states, even as they alone subordinated the executive and judicial powers to it.¹⁴ Unicameralism did not, in this case, entail the untrammelled power of a single legislative chamber because the Constitution gave recourse to a higher power erected for its enforcement: the Council of Censors.

Provision for the Council of Censors appeared only at the end of the Pennsylvania Constitution of 1776, in its Forty-Seventh Article, which proposed a body composed of two delegates from each city and county of Pennsylvania, elected every seven years, tasked with ensuring ‘that the freedom of the commonwealth may be preserved inviolate forever’.¹⁵ The role of the body, the Constitution continued:

[S]hall be to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution: They are also to enquire whether the public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed.¹⁶

In order to fulfil this duty, the Censors were granted the ‘power to send for persons, papers, and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution’, a power which they would maintain for one year following their election.¹⁷ And, the Constitution added:

The said council of censors shall also have power to call a convention, to meet within too [sic] years after their sitting, if there appear to them an absolute necessity of amending any article of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people.¹⁸

The process for calling such a convention was subject to the kind of supermajority threshold later found in the Federal Constitution of 1787, requiring the approval of two-thirds of the Censors before a convention could be summoned.¹⁹ The fact that the Constitution attributed the power to ‘explain … such as may be thought not clearly expressed’ in the Constitution to a constitutional convention, further suggested that the Censors’ power to interpret constitutional ambiguity was strictly limited, and that the ultimate power of constitutional interpretation lay with expressly elected representatives bearing the Constituent Power.²⁰

Although the Pennsylvania Constitution did not specify how the Council of Censors would operate, when it first convened in 1783, it elected to operate under a set of rules analogous to those of a legislative body and had elected a presiding officer and secretary.²¹ While it shared some powers with a modern constitutional court, therefore, its members imitated political and not judicial forms. In the course of their first, and only, meeting in 1783, the Censors primarily discussed the possibility of revising the constitution (which is dealt with below), but also reported favourably on the collection of taxes in the period since 1776, censured the state government’s treating of the Wyoming settlers, and ordered the impeachment of all state officials who had served on the state Council of Safety (created to manage the war effort in 1777), who they charged with violating the constitution by issuing legislative decrees.²² At the same time, they also ordered the revocation of an impressive range of laws, an edict obeyed by the subsequent legislature.²³ Notably, while the issue of whether or not the Censors’ ‘recommendations’ were binding on the legislature was never tested in Pennsylvania, in Vermont the Censors’ instructions to revoke unconstitutional laws appear to have been ignored on occasion.²⁴

As an elected guardian of the constitution and an institution for its enforcement, the Council of Censors was undeniably unique among the American state constitutions, none of which had devised institutions to actualize the distinction between the legislative power and the power to make the constitution. Nor had any other state constitution envisioned an institution with such wide-ranging powers of surveillance and oversight over all the organs of state power as both an arbiter of constitutionality and a censor of political conduct. Why, then, did the authors of the Pennsylvania Constitution include this unusual and idiosyncratic institution? This question has long remained a subject of interest to both historians and constitutional scholars, and the Council of Censors’ origins have remained relatively unclear and contested in part because, as Christopher H Pearl has argued, the writing of the Pennsylvania Constitution of 1776 still remains largely undocumented due to an absence of detailed records of the convention.²⁵ Although at one stage, what was commonly dubbed ‘Doctor Franklin’s constitution’ was attributed to the work of a single genius legislator, the ‘Solon’ of North America as some contemporaries dubbed him,²⁶ this interpretation has largely been rejected since the twentieth century, and Franklin’s relatively minimal role in the framing of the Pennsylvania Constitution recognized, rendering its origins ambiguous.²⁷ One unattributed account written in 1789, 13 years after the Pennsylvania Convention, presents the following biting explanation of the Council of Censors’ origins:

A member of the Convention who framed it, and who opposed many of its parts, foreseeing that a majority would vote for its establishment, proposed tacking a newfangled [sic] board to it, which he called a Council of Censors, on purpose, by making it ridiculous, to overset the whole. Unfortunately he mistook his men. His colleagues swallowed the addition, and some of them to this day, rather than confess that they were deceived, defend the joke of the waggish member of the Convention, as an essential and excellent part of the constitution.²⁸

Without a record of the convention, there is no direct evidence to rebut this facetious account. Nonetheless, scholars have proposed various alternative accounts of the origins of the Council of Censors—and of the 1776 Pennsylvania Constitution as a whole—which typically locate the body’s origins either in the partisan needs of radical politicians, or in a reverence for ancient institutions like the Roman censors.

Yet both accounts rely upon tenuous evidence, located either in the biography of individual Pennsylvanian politicians of the 1770s, or in the common American appropriation of classical names for otherwise novel institutions. The first of these accounts, advanced by Burton Konkle, J Paul Selsam, Allan Nevins, Robert L Brunhouse, Lewis Hamilton Meader, Gordon Wood, and Donald Lutz, for example, attributes the creation of the Council of Censors to the Philadelphia lawyer and radical politician George Bryan, either working alone or in tandem with his compatriot James Cannon.²⁹ Although recent accounts of the origins of the Pennsylvania Constitution by Kenneth Owen and David W Houpt have eschewed explicit conjecture about the origins of the Council of Censors, both reiterate the earlier historians’ contention that its primary purpose was to prevent constitutional change to the benefit of the radical party.³⁰ For most, although not all of these historians, the attribution to Bryan demonstrates that the Council of Censors was created primarily by a demagogic radical faction in Pennsylvania, who sought to use it to uphold their power under the Constitution of 1776 by curtailing persistent majorities in the legislature who favoured constitutional reform. There are two sources for this claim: the first is the attribution of a pamphlet entitled ‘The Genuine Principles of the Ancient Saxon, or English Constitution’ published under the pseudonym ‘Demophilus’ in Philadelphia in 1776, which proposed an institution analogous to the Council of Censors.³¹ But if we should not deny the importance of this pamphlet as a source of inspiration for the creators of the Council of Censors (as shall be discussed shortly) there is only scant evidence that it was written by Bryan. As Bryan’s most recent biographer Joseph S Foster has demonstrated, this attribution rests upon rather tenuous evidence—indeed the pamphlet in fact advanced positions like bicameralism and support for a unitary executive which Bryan consistently opposed.³²

The second source for the claim that Bryan was the author of the Censors, can be found in Alexander Graydon’s memoirs, written retrospectively in 1811, which attribute the Council of Censors to Bryan explicitly.³³ However this claim runs contrary to all other contemporary accounts, including those written in the eighteenth century. In fact, Bryan was not among the attendees of the convention which wrote the Constitution of 1776 and unlike those who influenced the convention from without like Thomas Paine, in 1774–76, Bryan was almost entirely absent from Pennsylvania politics owing to ill health.³⁴ As Benjamin Rush, a prominent member of the revolutionary party in Pennsylvania in the 1770s, would write to John Adams in 1790, in 1776 the prime movers behind the new Pennsylvania Constitution at the Convention had been ‘[James] Cannon, [Timothy] Matlack, and Dr [Thomas] Young’, stressing that Bryan had only come to the fore in later years.³⁵ Nor, indeed, is there any mention of the ‘Genuine Principles’ among Bryan’s papers from the period, nor indeed any mention of the Council of Censors or any other similar institution until long after its establishment.³⁶ Important as he may later have been in the preservation of Pennsylvania’s first constitution, therefore, there is almost no evidence that he had played any significant role in its authorship.

Likewise, although Lewis Hamilton Meader, Allan Nevins, Gordon S Wood, Donald S Lutz, and Wilfried Nippel, have all portrayed Council of Censors as an imitation of a classical model, its functions were hardly comparable to earlier constitutional guardians, from the Spartan ephors and Roman tribunes and censors to their seventeenth- and eighteenth-century imitators.³⁷ Although the two institutions shared a name, for example, the Pennsylvania Council of Censors bore little resemblance to its Roman counterpart. Whereas the Pennsylvania Censors represented an arbiter of the constitutionality of the laws and a judge of political conduct, the Roman censors exercised a primarily moral form of censorship—the infamous regimen morum—over the whole Roman people.³⁸ By contrast the censure exercised by the Pennsylvanian Council of Censors was explicitly political in character and dealt only with cases of misconduct in office (ie lawbreaking, corruption, abuse of the public funds). Even the form taken by the two institutions was different, with the Pennsylvania Censors comprising a council of between 24 and 38 members, while only two censors ever exercised their function at once in Rome. As we shall see, the ancient idea of the constitution was quite different to that formed in revolutionary America, rendering comparison between the Pennsylvania Censors—or indeed modern constitutional courts—to ancient institutions like the Spartan ephors or Athenian Areopagus (which were concerned, above all, with the regulation of mores and the enforcement of custom) of only limited utility.

If the historical Roman censors bore few similarities to the Council of Censors, nor did the descriptions thereof found in eighteenth-century constitutional texts like Montesquieu’s Spirit of the Laws or Rousseau’s Social Contract.³⁹ Nor were there significant similarities between this American institution and these works’ descriptions of similar classical institutions as Meader and Nevins argue.⁴⁰ Even the tribunes of Rousseau’s Social Contract, who served as a ‘guardian [conservateur] of the laws and of the legislative power’ bore only a superficial similarity to this censorial institution. As Rousseau explained, their role was to balance between rulers and ruled rather than to preserve the constitution, and in a well constituted republic, would ‘serve sometimes to protect the sovereign from the government … sometimes to sustain the government against the people’, keeping the actions of both in accord with the ‘General Will’.⁴¹ They were not judges of constitutionality in the modern sense. In fact, while, as Wilfried Nippel has demonstrated, early modern political thought was marked by a substantial interest in reviving tribunes, ephors, censors, and other similar ancient institutions, as early as the writings of the ‘Monomachs’ in the French Wars of Religion, it is not clear that the Pennsylvania Censors can be reduced to a contribution to this debate.⁴² Unlike the Pennsylvania Censors, their role was not the enforcement of the provisions of a codified constitution, but to act as a kind of emergency power with a right to dissolve particular governments for infringing upon the people’s rights.⁴³

In fact, such comparisons to earlier institutions are of only very limited utility because the Council of Censors was created specifically to tackle a problem arising from the new vision of constitutionalism which emerged at the end of the eighteenth century and was first actualized in the American Revolution. It is only by understanding this revolution in constitutional thinking that we can understand the true intellectual origins of the Council of Censors and recognize that it was neither a tool of radical partisanship nor an imitation of earlier political forms. Instead, it represented one of the earliest attempts to actualize the distinction between the people’s power to constitute the government and the powers which they had arrogated to it, and to defend the former’s exclusive sphere of action from the latter’s exercise of the power of the state.

II. CONSTITUTIONALISM AS POPULAR SOVEREIGNTY

Although the idea of the ‘constitution’ has been part of the currency of political thinking since the ancient world, its modern meaning is in fact surprisingly novel, dating to the second half of the eighteenth century, and gaining significant purchase only during the American Revolution. It was only in this period that this idea of constitutionalism, which sees the constitution as an incarnation of the will of the people, through which they exercise their sovereign power to create limited political institutions constantly beholden to that will, began to supersede an earlier notion now mostly out of fashion. This was not, for example, the same idea found in the ancient constitutional doctrines of Greece and Rome, whose constitutions, handed down by semi-mythical lawgivers changed over time and were closer to political customs or norms than the codified constitutional charters with which we are familiar today.⁴⁴ As Charles Howard McIlwain argued, in the ancient world, the idea of a ‘constitution’ embraced the social structures, morals, economic arrangements, and ways of life as well as the political arrangements of the state, embodying a customary and normative framework and ‘could never have been a “fundamental” law in our sense of that phrase’.⁴⁵ This older conception had dominated writing about the meaning of the term ‘constitution’ prior to the revolution: in 1733, for example, Lord Bolingbroke had defined a constitution as ‘the assemblage of laws, institutions and customs, derived from certain fixed principles of reason … that compose the general system, according to which the community hath agreed to be governed’.⁴⁶ Similarly, as the historian Keith Baker has observed, Montesquieu, whose Spirit of Laws exerted considerable influence on the revolutionary generation, likewise defined a constitution in terms of what the ancients had termed a ‘regime’ or politeia, rather than as a charter of government sanctioned by the people.⁴⁷

By contrast, as historians of the American Revolution have long recognized, in the nascent United colonies, a new constitutional doctrine began to emerge even before the revolution, taking hold quite rapidly once it had begun.⁴⁸ Prior to the onset of the revolution, American constitutional thinking already appeared to be escaping from within this paradigm but had not broken free entirely. In a famous ‘Election Sermon’ of 1768, for example, Daniel Shute distinguished between the ‘constitution’ and the ‘the particular form of administration’, although it also held as separate ‘Those laws which prescribe the right of prerogative and the rights of the people’, curiously implying that the constitution was not concerned with the extent and limits of state power.⁴⁹ By contrast, by 1791 Thomas Paine, one of the leading thinkers of the revolution could declare that in the new sense, a constitution was ‘a thing antecedent to a government, and a government is only the creature of a constitution’.⁵⁰ This sort of constitution could not be customary, but was by necessity a codified document or charter, on the basis of which claims could be made against the actions of the state—in so arguing, the French counterrevolutionary Joseph de Maistre claimed, Paine had broken with the entire history of European constitutional thought.⁵¹ The same distinction was described, quite poetically, by Alexander Hamilton in the first of the Federalist Papers where he portrayed the American Revolution as a struggle over the question of whether it would be possible for men to ‘establish good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force’.⁵² In other words, could a constitution be a product of human reason and the deliberation of the political community, or were human beings doomed forever to the rule of ancient convention and the precedent of their forefathers? Could the people rule themselves, or were they forced to submit to the rule of history?

Yet there remained a strange lacuna in early American constitutional thinking: what could stop the institutions created by the people through the constitution from simply violating the charter by which they had been created once empowered to exercise the powers of government? The answer, today, is quite a simple one: that this is a power exercised by the judiciary, with ultimate authority in the hands of a supreme or constitutional court depending upon the jurisdiction. But this was not at all obvious to the constitution-makers of the revolutionary era. If there had been limited instances of judicial review based upon constitutional laws exercised to limit acts of state legislatures in the pre-revolutionary and revolutionary eras, as noted by the jurist J Hampden Dougherty,⁵³ such instances were rare and opposition to judicial review widespread prior to the nineteenth century.⁵⁴ As Allan Nevins argued in his extensive study of the early state constitutions, in almost all the original American constitutions, legislatures were left as ‘the sole judges of their own constitutional powers’ without the constraint of any form of constitutional review.⁵⁵ In Delaware, the first state to adopt a constitution by a special convention, for example, that constitution itself specified that the ordinary legislature could amend the constitution, a peculiar state of affairs common in the early United States.⁵⁶ Even where this was not the case, no body existed for the actual enforcement of a formally binding constitution. The sole exception was Pennsylvania, with its Council of Censors.

Indeed, it was in order to address this very gap in the doctrine of popular constitutionalism that the first proposals for what would become Pennsylvania’s Council of Censors were forwarded in 1776. Although the term ‘Council of Censors’ was original to the Constitution of 1776, institutions on the same model had been proposed in several pamphlets and newspaper articles written as contributions to the revolutionary debate on constitutionalism and representative government. Particularly notable precursors to the Council of Censors can be found in a short article in the Pennsylvania Gazette and Weekly Advertiser entitled ‘Serious Questions Proposed to All Friends to the Rights of Mankind in Pennsylvania, with Suitable Answers’ published on 22 May 1776 and an anonymously published pamphlet entitled Four Letters on Interesting Subjects which we now know to have been written by Thomas Paine and published in late May or June 1776. The two were later joined by ‘The Genuine Principles of the Ancient Saxon, or English Constitution’ discussed above, which referenced the Declaration of Independence and can, therefore, have been published no earlier than 4 July.⁵⁷ Although none used the term ‘censors’ to describe it, each proposed a recurring extraordinary institution designed to preserve the constitution by striking down unconstitutional legislation, proposing reforms, and calling a new convention, in the form of a ‘Committee of Inquiry’, ‘Provincial Jury’, or ‘a decennial meeting of delegates, to examine the state of the constitution’.⁵⁸ What was more, all three did so on the basis of a constitutional theory which stressed the constitution’s fundamentally popular nature and its supremacy over the institutions of the state. Thus, the author of the ‘Serious Questions’ argued that all legitimate constitutions necessarily derived from the power of the people who, in creating a constitution, could only ever ‘delegat[e] the powers of government so that the people may always have it in their power to reform them, whenever, abused, without tumult or confusion’.⁵⁹

In order to preserve the supremacy of the people over the constitution and of the constitution over the government, moreover, the author of the ‘Serious Questions’ explicitly ruled out the prospect of the extant assembly exercising the power to make or amend the constitution and instead proposed a complex multi-stage process of constitutional ratification which would require popular approval and participation from below at every stage.⁶⁰ We find the same contention in the Genuine Principles, which, as we have seen, has often but probably falsely been attributed to George Bryan. Nonetheless, if we should seriously doubt Bryan’s authorship, it certainly should not be doubted that this pamphlet played a role in the creation of the Council of Censors. Like the authors of the ‘Serious Questions’, ‘Demophilus’ expressed significant concern that the constitution should only ever be a product of the popular will. To this end, the pamphlet proposed a process of constitutional ratification quite similar to that found in the ‘Serious Questions’, which would require a process of public deliberation in which every citizen ‘might be invited to give his sentiments freely and discreetly’ about necessary alterations to the constitution.⁶¹ What was more, Demophilus argued, the people could remain free only insofar as they maintained the power to alter the constitution. In fact, the very cover of the pamphlet announced the importance of this doctrine, bearing the quote ‘All human Constitutions are subject to Corruption, and must perish unless they are timely renewed by reducing them to their first Principles’, taken from Algernon Sidney’s Discourses Concerning Government.⁶² Notably, none of these arguments could be found in Obadiah Hulme’s An Historical Essay on the English Constitution, from which Demophilus had drawn much of the historical content of the pamphlet.⁶³

It was in Four Letters, the fourth of which is dedicated entirely to the question of the distinction between a ‘constitution’ and a ‘government’, however, that this doctrine found its most developed form. As the pamphlet’s author explained:

Among the many publications which have appeared on the subject of political Constitutions, none, that I have seen have properly defined what is meant by a Constitution, that word having been bandied about without any determinate sense being affirmed thereto. A Constitution, and a form of government are frequently confounded together, and spoken of as synonymous things; whereas they are not only different, but are established for different purposes.⁶⁴

Indeed, they argued, the mistake which most previous authors had made was confusing the form a government took, which was only one part of a constitution, for the constitution as a whole, which also encompassed the powers granted to that government and the ‘provision[s] in those cases where it does not empower the legislature to act’.⁶⁵ This critique of previous constitutional writers could have applied to any number of eighteenth-century writings, of course. Nonetheless, it is notable that it appears to critique some of the constitutional ideas of the ‘Serious Questions’, which distinguished between the ‘constitution of government’ and a ‘Charter of Delegation’ to be drawn up after the constitution, designed either by the same or by a different special delegation. This would comprise ‘a clear and full description of the quantity and degree of power and authority, with which the society vests the persons instructed with the powers of the society, whether civil or military, legislative, executive or judicial’.⁶⁶ Although the Four Letters probably had a broader set of targets in mind in addition to this, it is noteworthy that it appears to voice a critique from within the revolutionary party of the confused constitutional theory which its members now advocated. Nonetheless, as its author made quite clear, the Four Letters were more immediately, framed against the ‘English’ constitution or rather, as they argued, against the absence of any constitution in the English system which, lacking any formal restraints on parliamentary power could not truly be said to be a constitutional state.⁶⁷

Like the ‘Serious Questions’ and Genuine Principles, the Four Letters argued that any legitimate constitution must emanate from the people via a direct exercise of their will. As the third letter, which discusses the charter granted to William Penn and the subsequent charters governing the colony of Pennsylvania, explained: ‘All Charters, which are the acts of a single man, are a species of tyranny; because they substitute the will of one as a law for all. They ought to have no Being in a free country; and no country can be free that has them’.⁶⁸ Against this ‘arbitrary power’ arrogated to himself by Penn, the author argued that:

The people had certainly as good a right to author a constitution for him as he for them: And it matters not what the Charter contains; the thing is, that he had no authority for that purpose, any more than he had to have granted a passport to heaven. All constitutions should be contained in some written Charter; but that Charter should be the act of all and not of one man. Magna Charta was not a grant from the Crown, but only agreed or acceded to by the Crown, being first drawn up and framed by the people.⁶⁹

In other words, for a people to legitimately cede part of their liberty in creating a government, that government had necessarily to be limited by a constitution made by the people themselves. As the author continued in a notably Rousseauian tone, ‘In this sense it is easy to see that the English have no Constitution, because they have given up every thing [sic]; their legislative power being unlimited without either condition or control, except in the single instance of trial by Juries’.⁷⁰ Consequently, the pamphlet argued, the English—and their American subjects—could not truly be said to be free, because ‘No country can be called free which is governed by absolute power; and it matters not whether it be an absolute royal power or an absolute legislative power, as the consequences will be the same to the people’.⁷¹ In Britain, there was a form of government, representing the institutional arrangement by which political power was distributed in a state, but no constitution which would represent limitations which placed on the government by the people themselves, detailing the extent and limits of political power beyond which ordinary political institutions could not step. Thus, while ‘All countries have some form of government … few, or perhaps none, have truly a Constitution’.⁷² The role of the constitution was not an instrument by which the people submitted to a sovereign political authority, as in the social contract tradition, but by which the people placed abiding limitations upon the power of the state, and ensured that it never exceeded their wishes.

In this regard, Paine’s pamphlet appeared to anticipate the distinction between ‘Constituent’ and ‘Constituted’ Powers made famous by his future rival Emmanuel-Joseph Sieyès. Like Sieyès, moreover, Paine argued that the constitution was not a contract by which the people united into a nation, but a charter issued by a nation which existed prior to the state, both temporally and legally, and was thus theirs to alter or abjure.⁷³ The people, as the ultimate source of power in a political community thus exercised a will antecedent to and constitutive of the form of government, embodied in the constitution. Nor was it merely the idea of Constituent Power which the Pennsylvania democrats articulated. As early as April 1777 Thomas Young, one of the leading drafters of Pennsylvania’s 1776 Constitution and a friend of Paine’s, had written an address to the rebellious inhabitants of the ‘New Hampshire Grants’, a territory then formally controlled by New York but soon to become the Vermont Republic, in which he recommended the Pennsylvanian constitutional model and argued that:

For my own part I esteem the people at large the true proprietors of governmental power. They are the supreme constituent power and of course their immediate Representatives are the supreme Delegate power and as soon as the delegate power gets too far out of the hands of the constituent power a tyranny is in some degree established.⁷⁴

Young had, therefore, coined the exact term ‘Constituent Power’ over a decade before its first use by Emmanuel-Joseph Sieyès in 1788 (though without the corresponding term ‘Constituted Power’).

Although this was not the first articulation of this concept in more or less these terms, it was notable that it was the first occasion on which it had been used to refer to the—at least nominally—popularly driven and ratified constitution-making process inaugurated by the American Revolution and to justify a constitution with strict limits on legislative powers of amendment.⁷⁵ The Marquis de Lafayette, then, had it even closer to the truth than he had imagined when, in his memoires, he scorned Sieyès’s claim to have ‘discovered’ the doctrine of the Constituent Power in light of the American constitutional experience.⁷⁶ As Lafayette argued, it was not French theorizing, but the American constitutional practice of calling conventions to frame new governments which had given birth to the doctrine that a constitution must be authored by the people either directly or through a specially chosen and extraordinarily empowered body and must be unalterable by ordinary political institutions.

If they were early adopters of the new constitutional theory which would play a central role in the American Revolution, these three pamphlets were relatively isolated in its early years in providing a solution to the still pressing problem of how to ensure that constitutional limits remain un-transgressed by the Constituent Powers. In attempting to resolve this dilemma, they were almost alone in the creation of a specialized constitutional guardian set apart from the legislative and executive powers. Thus, the author of the ‘Serious Questions’ argued that, although a well-balanced constitution whose ‘branches are independent of and balance each other, and all dependent on the people, and if it has the power of calling the executive and judicial branches to account for mal-administration’,⁷⁷ might serve to preserve the constitution, they also argued for:

[T]he addition of a Committee of Inquiry to be chosen every third year, whose authority should extent to the examination of all laws passed within that space of time, to see if any infringed upon the Social Compact, to inquire into the application of the public money, and the conduct of all officers whether legislative, executive, or judicial; particularly to see that no branch of the legislature exceed the bounds prescribed to it in the Charter of Delegation; to sit in judgement on the delinquent, and they, whom the Committee condemned, should be incapable of holding office of power and trust in society. This Committee should exist only for six months at most, and should have power to recommend any alteration or amendment of any article in the Charter of Delegation, which, by experience, should be found defective or dangerous; which alteration or amendment should be made by a body of men delegated for the purpose, in the same manner as the Original Compact.⁷⁸

What else was this, but an exact outline of the powers soon to be possessed by the Council of Censors? Like the Censors, this Committee of Inquiry would serve as a temporary guardian of the laws and of the constitution, with extensive powers to censure ‘delinquent’ officials, and to initiate a revision of the constitution, with only some minimal and superficial differences, published in one of the most prominent state newspapers of the period.

So too did the Four Letters argue that a constitution alone could not secure the people against ‘absolute’ government and that, ‘Next to the forming [of] a good Constitution, is the means of preserving it’⁷⁹ and for this reason its author argued that:

The means here pointed out for preserving a Constitution are easy, and some article in the Constitution may provide, that at the expiration of every seven or any other number of years a Provincial Jury shall be elected, to enquire if any inroads have been made in the Constitution, and to have power to remove them; but not to make alterations, unless a clear majority of all the inhabitants shall so direct.⁸⁰

This likewise represented a clear precursor to the Council of Censors, including its septennial election, its responsibility for the maintenance of the constitution, and the fact that it was beholden to the will of the people when it came to amending it. ‘Demophilus’ too maintained that:

[A] decennial meeting of delegates, to examine the state of the constitution, and conduct of the government, would not be an imprudent provision for keeping the constitution in health and vigor [sic], by having an opportunity to see that it did not depart from its first principles. This would be effectually holding the supreme power in its only safe repository the hands of  the people.⁸¹

While it is fair to say that this was a less institutionally developed account of the censorial idea it encapsulated the same essential principles: that the constitution was a thing of the people, that they alone possessed the right to amend it, and that it was essential to defend it against the actions of the institutions of government.

What was the cause of this new approach to constitutional thinking? One answer might be that it was simply a stroke of brilliance on the part of a few individual radical writers in the 1770s, but its recurrence among seemingly disconnected authors—and its identity with persistent contemporary constitutional issues—suggests that it in fact originated in the nature of the political transformations which had inaugurated the revolution. In fact, it was the colonists’ changing attitude towards Parliament and their break with the Whig notion that the British Parliament—particularly the House of Commons—was the guardian of the constitution and the people’s liberties which led to this fundamental rupture in constitutional thinking. In the course of the American Revolution, this old story of an antagonism between tyrannizing monarchy and constitutional parliament gave way to a dual critique of both parliament and king as potential tyrants. As Gordon Wood has argued, the decisive break between American revolutionary constitutionalism and its Whig forebears was thus in the transformation of their understanding of parliamentary government: because of their experience in the Stamp Act Crisis and a wider concern with parliamentary tyranny, American patriots came to recognize that Parliament, too, could be an arbitrary or despotic power.⁸² As the author of the Four Letters had put it, it did not matter whether the constitution was invaded upon by the legislative or executive branches, because the consequence would be the same—the erosion and eventual collapse of the people’s liberty.⁸³

Once the legislature had become ascendant with the decline of royal authority, it had become clear that it, too, could be an agent of political oppression, and that if the will of the people, embodied in the constitution, were to be preserved, it would have to be by limiting both legislative and executive power.⁸⁴ As the Four Letters noted, echoing Rousseau, this necessity was best evinced by the condition of the English who, far from free, had simply surrendered their sovereignty to their representatives.⁸⁵ But where Rousseau had seen this as an irresolvable dilemma facing representative government, Paine—who we know was familiar with The Social Contract⁸⁶—now suggested it could be resolved if the representatives of the people could be bound to obey an expression of their sovereign will, a constitution which said ‘Thus far shalt thou go, and no farther’.⁸⁷ Although a body would exist called the ‘legislature’ what Rousseau had called the legislative power, the fundamental power to set the general principles by which state power was exercised, would remain with the people and the legislature would merely fall to tackling particular issues, the task Rousseau had termed ‘government’ or ‘administration’.⁸⁸

If the constitution was to be preserved against the people’s representatives, however, this new constitutional doctrine demanded the means of its enforcement against all the ordinary political institutions which the constitution had created. It was, of course, to fulfil this task that the Council of Censors and its forerunners were first devised. The Council of Censors, or Provincial Jury, or Committee of Inquiry, was a guardian of the superiority of the Constituent Power to the Constituted Powers, and an institution to act as the defender of the sovereign will of the people between their recurrent expressions of that power in the form of a new constitutional convention. Insofar as it would order the impeachment of officials, overturn unconstitutional laws, and mediate disputes about the separation of powers, it was intended to do so to maintain the hierarchical relationship between sovereign and government. This principle was the central theoretical innovation forwarded by the creators of the Council of Censors. This was recognized by one of the constitution’s most notable admirers, the future French revolutionary statesman Jacques-Pierre Brissot. As Brissot argued, the Pennsylvania Constitution’s mechanisms to ensure that the institutions of the state always hewed to the will of the people represented a superior model of popular self-rule to the totalizing life of constant and universal political participation demanded by the ancient republics and the key to free government in the modern world.⁸⁹ While the doctrine of rigid constitutionalism superior to ordinary legislation was taking hold across the revolutionary colonies, it was thus only in Pennsylvania that the means of this constitution’s enforcement was expressly enunciated in the constitution. As they alone recognized in the early republic, creating institutions which would bind the government to obey this document and facilitate the people’s ability to alter it as they saw fit made a state founded upon ‘democracy’ possible in a large representative republic. It was an insight to which many of their countrymen would only latterly arrive.

III. OPPOSITION TO THE COUNCIL OF CENSORS

None of the other original 13 colonies would replicate the Council of Censors, even if Georgia would also adopt a unicameral constitution. Only Vermont would officially institutionalize a Council of Censors in its 1777, 1786, and 1793 Constitutions where, unlike in Pennsylvania, the Council of Censors would enjoy a long existence and remain in place until 1870.⁹⁰ Elsewhere, in 1779 citizens of Stoughton county in Massachusetts would, unsuccessfully, propose the inclusion of a ‘Council of Censors and Controul’ in their 1780 constitution,⁹¹ while the Reverend Samuel Houston’s proposed constitution for a breakaway ‘State of Franklin’ in modern-day Tennessee included a quintennial ‘Council of Safety’, whose description was lifted more or less entirely from the 1776 Pennsylvania Constitution.⁹² With only one notable exception, however, in 1776 the idea of creating a constitutional guardian was one entirely associated with the radical fathers of the Pennsylvania Constitution. That exception was a pamphlet entitled The People the Best Governors: Or a Plan of Government founded on the just principles of Natural Freedom published in 1776, apparently independently of the ongoing debate in Pennsylvania.⁹³ As the anonymous author of this pamphlet argued, unless a ‘negative authority’ could be exercised over the legislature in order to confine it to the exercise of ‘a delegated power from the people to act no farther than this negative power concurs’, nothing could prevent it from usurping the power of the people.⁹⁴ Here the model was not the Roman Censors but ‘the idea of a senate, which was hereditary at Rome, but here elective’.⁹⁵ Yet this author also expressed what was soon to become a common refrain when they warned that ‘this negative power, if it cannot be called legislative, has at least, such weight in the legislature, as to be the unlimited sine qua non’—it could, in other words, itself become the agent of the very sort of usurpation it was designed to prevent.⁹⁶ The same sentiment would soon come to form a central plank of the assault on the Council of Censors by opponents of the radical constitution of 1776.

The Council of Censors would face unsparing criticism effectively from the moment the Pennsylvania Constitution was enacted in 1776 right until its abolition in 1790 and its only meeting in 1783-84 was dominated by a battle over its own existence. Even while the Convention was still in session, one delegate—Thomas Smith—wrote a highly critical letter about the constitution then being drafted to his friend Arthur St Clair, suggesting that alongside such radical provisions as a unicameral legislature and ‘a convention every three, five, or seven years … who are to inquire into and supply defects, deviations or abuses in the Constitution’ it would hardly be a surprise to see the convention pass an agrarian law redistributing land from the rich to the poor.⁹⁷ Nor were the Constitution’s opponents slow in seeking means to circumvent and repeal it. In November 1776, just two months after the Constitution’s creation, for example, John Dickinson would privately set out a plan for its extralegal abolition by a new convention called by the legislature, the course eventually taken by its opponents.⁹⁸

The first published critique of the Censors, however, came in the final instalment of an idiosyncratic analysis of the Constitution entitled ‘A Dialogue between Orator Puff and Peter Easy, on the Proposed Plan or Frame of Government’ published in the Tory paper the Pennsylvania Ledger, which wrote the script for every subsequent critic of the Censors.⁹⁹ As its title suggests, the work was a fanciful imagined conversation between the somewhat ridiculous character ‘Orator Puff’ and his neighbour Peter Easy about the new Constitution of their state. The fourth and final instalment of this work was dedicated almost wholly to the Council of Censors. In this final piece, Puff reaches the apex of his grandiosity and declares that the Council of Censors is:

[A] Comet in the political world … the blazing tail of our government [which] will every now and then whisk it [sic] away rapidly among our legislative, executive, and judicial [branches] … purge off all noxious humours, and as the 47^th section says ‘preserve the freedom of this Commonwealth for ever’.¹⁰⁰

At this stage, rising to a level of fury previously unseen in his exchange with his boorish radical neighbour, Peter Easy suddenly retorts with a sustained invective against the new Constitution in general and the Censors in particular. Lambasting the Censors as ‘grossly absurd, and likely to add to the confusion of our affairs, already too much confused’, Peter Easy reels off a number of criticisms of the idea of a Council of Censors. What should have been erected in Pennsylvania, Peter Easy argues, was a simple system of checks and balances, in which the lower house is limited by a co-equal upper house, a system recommended to America by ‘the sentiments of the Congress and Montesquieu’.¹⁰¹ Instead, the Pennsylvania Constitution’s authors had created a strange and idiosyncratic system in which the Constitution stood defenceless for six out of every seven years and sat beyond the reach of popular amendment, leaving it liable to decay into anarchy, tyranny, or both. And yet, Peter Easy continued, in seeking to reinvent the wheel, the radicals had ‘have given these monstrous powers to [the Council of Censors] that can never be justly executed, and therefore must be executed absurdly and dangerously’.¹⁰² In place of a simple check in the form of an upper house, the Constitution had been left defenceless except for when its guardians were periodically empowered with arbitrary authority far beyond any justifiable bounds. Its unusual form aside, what makes this dialogue remarkable is how far it anticipates the lines of attack which would characterize the next 14 years of debate about the Council of Censors. The leading critics of the Censors would follow ‘Peter Easy’ in arguing (i) that the Council of Censors and unicameral legislature were a poor substitute for a system of checks and balances, (ii) that the Constitution was insufficiently flexible, and (iii) that the Censors were simultaneously both too weak to defend the Constitution and possessed an unbounded and arbitrary power which itself threatened the Constitution’s existence. Armed with these arguments, they would spare no time in attempting to secure the Council of Censors’ abolition.

Indeed, almost identical criticisms would form the backbone of the attack on the Pennsylvania Constitution by the state’s ‘Republican Party’, as one of its leaders Benjamin Rush dubbed it.¹⁰³ This was John Dickinson who, writing as ‘Phocion’, would launch a blistering attack on the unchecked legislative power which had allowed numerous constitutional violations in the first year of its operation, and concluded with the sarcastic observation:

Who shall limit Supreme Legislative Power? Pray, have patience, the Censors seven years hence will examine whether the Legislative and Executive branches have exercised other or greater powers than they were intituled [sic] to by the Constitution, and then redress you; but in the mean time silently admire and obey.¹⁰⁴

Faced with such defects, Phocion argued, Pennsylvania had no choice but to call a new convention to write a new constitution. The same argument was made the next day in the Pennsylvania Evening Post by an author signing as ‘Hampden’, who listed a similar set of infringements of the Constitution by the ‘omnipotent body’ the assembly, which he compared to the unlimited British Parliament, and attacked the Constitution for lacking a ‘Legislative Council or Governor to check their violence’, demanding a new convention to redress this.¹⁰⁵

So too would Benjamin Rush attack the Censors in a series of articles for the Pennsylvania Journal signed ‘Ludlow’, and later published as a pamphlet entitled Observations upon the Present Government of Pennsylvania.¹⁰⁶ ‘To talk of the Council of Censors as a check upon the Assembly’, he wrote, ‘is to forget that a man or a body of men may deceive, rob, and enslave the public for seven years, and then may escape the intended efficacy of the censures of the Council by death, or by flying into a neighbouring state’.¹⁰⁷ In the interval between the Censors’ meetings, Rush argued, annual elections could be abolished or suspended altogether, or requirements so stringent as to exclude all but a minority of voters imposed, with no form of redress, and allow republican government to be destroyed. Yet, like the dialogue between Puff and Easy, Rush also argued that when they did sit, the Censors would be an institution ‘invested with a supreme and uncontrouled power to revise and censure all the laws and proceedings of not a single Assembly, but of all the Assemblies that shall exist for seven years’ possessing the sole power to propose what changes should be made to the constitution.¹⁰⁸ This, Rush argued, was characteristic of the poor understanding of the nature of government which had given birth to the unicameral constitution in the first place. Although the framers of the Constitution had added so many provisions of popular and institutional surveillance designed to prevent corruption in office, ‘Call a man an Assemblyman or a Censor’, he argued, ‘and he becomes an innocent creature, though you invest him with the despotism of an eastern monarch’.¹⁰⁹ The Constitution of 1776, he thus argued, would oscillate between the tyranny of an all-powerful legislature and the sovereignty of the Censors, the one possessing the legal power to change the Constitution as they wished, the other facing no obstacle to their doing so.

At times, this debate would reach ludicrous proportions. In 1779, for example, an open letter by a group of Republicans led by Franklin’s son in law Richard Bache would declare that:

Our Constitution-makers, not satisfied with the habitual despotism of a single and uncontrouled Legislature have appointed stated seasons for the extraordinary efforts of lawless power. They have instituted a jubilee of tyranny to be celebrated at the end of every seven years. Glorious period? When the foundations of government shall be torn up! When anarchy and licentiousness and force shall roam unawed and unrestrained! When there shall be no fixed laws, to which you can appeal for the justification of your conduct! When there shall be no Courts, to which you can have recourse for protection! When trials by jury, those odious obstructions that lie in the way of tyrants, shall be happily removed!¹¹⁰

Unfairness and inaccuracy of this account aside, it is an important indication of what the Council of Censors had come to represent for conservative opponents of the Constitution: a body with untrammelled power, which could overturn all laws, under the control of the Radicals. Asking an age-old question, ‘who watches the watchers?’, the opponents of the Council of Censors contrasted the oscillation between an unchecked legislature and an unchecked Council of Censors with the virtuous balance of a bicameral government. If their attempt to secure its abolition in 1779 would ultimately fail, moreover, their campaign did not relent.

Indeed, when the Censors met at their appointed time, in 1783, seven years after the framing of the Pennsylvania Constitution, the continued bitterness of the debate about the Censors itself prevented the Council from living up to the Constitution’s vision of an assiduous constitutional watchdog. Instead, the Censors’ only meeting was characterized by a furious debate over the Constitution—and the body itself. Although the Republicans had won a majority in the Council of Censors with 13 places to the radicals’ 12,¹¹¹ under the Constitution, a majority of two-thirds was required to call a new convention. Confounding matters, halfway through the body’s tenure the Republicans lost their majority when one member of the Censors died, allowing the new ‘Constitutionalist’ majority to use the body to lambast proposals for constitutional reform as un-republican and to attack the Republicans for obstructing proper oversight of the legislative and executive branches.¹¹²

Defeated though they were, the Republicans were defiant and, in fact, had never been entirely wedded to the legal path to constitutional amendment. As Rush had suggested in a letter to John Montgomery in November 1783, ‘If the censors refuse [a new convention], it may easily be brought about by an appeal from the Assembly to the state’.¹¹³ But despite their willingness to countenance it, the extralegal path to constitutional change was not immediately open to them. A new convention would not be called until 1790, and only with the looming threat of the Constitutionalists neutralizing the issue by defeating the proposal at the new Council of Censors to be held that year. Indeed, as the legislation calling for a new convention published in February 1789 made clear, the path to a new convention had not been opened by the Republican’s own efforts, but by political change at the national level. When constitutional change came, it was justified not on the grounds long advocated by Republicans but ‘for the purpose of altering our state constitution, so as to accommodate it to the constitution of the United States’.¹¹⁴

In part, however, this was because the ‘Pennsylvania model’, the Council of Censors, and the idea of an independent constitutional guardian as such, had all been so thoroughly rejected by the partisans of the new Federal Constitution. In Federalist No 48, James Madison had launched the most vociferous of these attacks against the Censors, and had condemned the idea of a separation of powers and limited government enforced by a constitutional guardian as mere ‘parchment barriers against the encroaching spirit of power’ and had condemned the Censors’ ineffectiveness when it attempted to counter the very serious violations of the Pennsylvania Constitution which had occurred on its watch.¹¹⁵ Instead of ‘mere demarcations on parchment of the constitutional limits of the several departments’,¹¹⁶ Madison argued that the integrity of the constitutional limits placed on the Constituted Powers could be achieved only through horizontal relations of mutual limitation, as each branch—the executive, the two houses of the legislature, and the judiciary—exercised a veto over one another. Notably, Madison’s argument seemed to echo Benjamin Rush’s argument against the mere presence of a written constitution as a means of securing limited government without checks and balances in a speech which attacked the Pennsylvania Constitution in comparison to the new federal alternative at the 1787 Pennsylvania ratifying convention.¹¹⁷

The Censors, Madison continued in Federalist No 50, had failed precisely because they were not neutral guardians of the constitution, but partisans, many of whom sat in the very institutions they were supposed to police, and who quickly ‘split into two fixed and violent parties’, for whom ‘passion, not reason, must have presided over their decision’ and transformed a body dedicated to the preservation of the constitution into an arena for partisan contestation over it.¹¹⁸ ‘This censorial body’, he argued, ‘therefore, proves at the same time by its researches, the existence of the disease [of constitutional violation], and by its example the inefficacy of the remedy’.¹¹⁹ Only a system in which partisan ambitions could be made to check one another could be a true safeguard against constitutional violation. At the same time, Madison generally condemned calling regular constitutional conventions (either to allow the people to rewrite or correct abuses of the constitution) as liable to destabilize the constitutional order, which depended upon the constitution gaining the lustre of its antiquity.¹²⁰

In fact, during the sitting of the Federal Convention, in a debate on the potential to limit the legislature through the creation of a ‘Council of Revision’ composed of the Governor and select Supreme Court Justices wielding a legislative veto—itself supported by Madison—the authors of the Constitution demonstrated considerable opposition to any form of independent constitutional guardian. Although some opponents of the Council rejected it on the grounds that the judiciary already possessed a check in the form of judicial review, as Elbridge Gerry suggested,¹²¹ most delegates took the opposite line. As Gunning Bedford Jr argued, they held that ‘it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments’ which would then ‘be under no external control whatever’ outside the self-regulation of the system of checks and balances.¹²² Even supporters of the Council of Revision like John Mercer expressed scepticism of the idea of any kind of judicial role in interpreting the constitution, and ‘heartily approved’ of Madison’s proposal, only on the grounds that ‘He disapproved of the Doctrine that the Judges as expositors of the Constitution should have the authority to declare a law void. He thought laws ought to be well and cautiously made, and then be uncontrollable’.¹²³

Arguments against a constitutional check upon the legislature were, indeed, often made with explicit reference to the Council of Censors. Bedford and Mercer’s arguments were, for example, echoed by John Dickinson, who had opposed the Council of Censors as Phocion, and drew upon the arguments he and his allies had mobilized in Pennsylvania to argue that such a power could ‘bec[o]me by degrees the lawgiver’ in the republic.¹²⁴ Likewise, Gouverneur Morris, who expressed scepticism that the courts could ever ‘be bound to say that a direct violation of the Constitution was law’ suggested that a purely executive veto would be the most effective guardian against bad legislation.¹²⁵ As Morris explained, he had come to this view in part based on:

The Report of the Council of Censors in Pennsylvania [which] points out the many invasions of the legislative department on the Executive numerous as the latter is, within the short term of seven years, and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments against it.¹²⁶

Like Madison, Morris appeared to think that the report of the Censors both indicated the disease afflicting the Pennsylvania Constitution and its own inefficacy as a cure. Instead, he argued that a strong executive, not a specialized guardian, should be the bulwark of the constitution. Checks and balances within the system and not an external regulator would keep the machine of government running smoothly. For all their disagreements, it is thus quite clear that very few of the Founding Fathers wished to ensconce a powerful constitutional guardian, in no small part because of the experience of constitutional guardianship in Pennsylvania. When the federal Constitution entered into force in 1788, indeed, it was not at all clear who—if anyone—held the authority to act as guardian of the constitution in the young republic. Only the constitutional debates of the nineteenth century would resolve this thorny dilemma.

IV. CONCLUSION

In the early years of the republic this question remained unsettled. Anticipating the constitutional configuration which would ultimately prevail, Alexander Hamilton would argue that the Supreme Court should evidently play this role as early as 1788.¹²⁷ Hamilton’s claim was echoed by a young James Kent in 1790, who declared the courts ‘the proper and intended Guardians of our limited Constitutions’.¹²⁸ But many others proposed alternatives. For Madison, for example, it was evident that the balanced constitution would be self-regulating, and self-interest rather than ‘parchment barriers’ would maintain the constitutional balance. For both Washington and Jefferson it appeared, at times, that the presidency should play this role, wielding the executive veto.¹²⁹ Only with the 1803 Marbury v Madison decision would the Supreme Court cement its role as an external adjudicator of the constitutionality of laws, a role which remained contested into the nineteenth century and beyond, with bills to make Supreme Court Justices removable by Congress by simple majority at the President’s initiative debated five times between 1805 and 1816.¹³⁰ More drastically, Senator Richard Mentor Johnson would propose reassigning the final power to review the constitutionality of legislative acts to the Senate as late as 1822.¹³¹ As Nikolas Bowie and Daphna Renan have recently shown, as late as the twentieth century, the Supreme Court’s role as arbiter of the separation of powers remained strictly circumscribed by a political constitutionalist interpretation of a self-regulating constitutional equilibrium.¹³²

Despite the ongoing contestation over the nature of constitutional guardianship in the United States, after 1790 the Council of Censors would rarely be suggested as an alternative. One rare example was a proposal made by Benjamin Franklin’s grandson, Richard Bache’s son, Benjamin Franklin Bache, that the old Council of Censors could serve as an inspiration for aspiring constitutional reformists seeking a less aristocratic Senate in the 1790s.¹³³ It was in this context that the anonymous author with whom we began contended that the presence of the Council of Censors in the Pennsylvania Constitution of 1776 demonstrated both the illegitimacy and unconstitutionality of judicial review. As they, rather dubiously, argued, since the exclusive right to adjudicate the constitutionality of the acts of the people’s representatives had been entrusted in 1776 to the Council of Censors the principle that only an extraordinary convocation could exercise it had been carried forward into the Constitution of 1790. ‘If this reasoning is correct’, they continued, then:

[A] comparison of the old and new constitutions of Pennsylvania will settle this question, and show in a perfectly clear light that this authoritative judicial determination of the supreme court, if they ever venture to give it, will be arrogating a power in its nature subversive of all our republican principles.¹³⁴

The ordinary judiciary could not serve to arbitrate the constitutionality of legislation, indeed for it to do so would be distinctly unrepublican, because the founders of the state’s republican constitution had always intended this power to be lodged in the hands of the people, exercised through specialized elective institutions.

Yet by 1804, the Council of Censors, once the subject of such dissension and debate could no longer inspire any meaningful vitriol. This anonymous author’s argument, facile as it was, went largely ignored, and the Council of Censors’ potential as an alternative vision of constitutional guardianship would mostly fade from memory, while the Pennsylvania radicals would eventually abandon their assault upon judicial power.¹³⁵ Over the course of the nineteenth century, the Supreme Court’s role as guardian of the constitution would slowly become consolidated, and the early alternatives forgotten. As so many of its opponents and friends alike had argued, the Council of Censors had been rendered largely inoperable by partisanship, by the dominance of the Council by exactly those it was supposed to censure, and by the concerted efforts of its opponents to use it as the weapon of its own destruction. In Vermont, where a more consensual politics reigned, the Council of Censors fared better, but it too would eventually disappear in favour of a Supreme Court on the model found in other states. Even reformers and radical democrats no longer possessed the political will to experiment further with non-judicial, explicitly political, or elective models of constitutional guardianship in the United States, with abolition or reform of the Supreme Court dominating their proposals.

Today, the Supreme Court’s role as the ‘guardian of the constitution’ seems more politically precarious than at any time since the ‘court packing’ crisis of the 1930s.¹³⁶ Attacks upon the institution’s legitimacy have become frequent in both the academy and in the popular press. The British jurist Martin Loughlin has even recently suggested the need to reject ‘constitutionalism’ as enforced by modern constitutional and supreme courts tout court on the grounds that they serve primarily not to secure the rights and liberties of the people, but to depoliticize and lock in an undemocratic political consensus.¹³⁷ For its supporters, including former Supreme Court Justice Stephen Breyer, this contemporary crisis of the court demonstrates the ‘peril of politics’, and indicates the need for a new era of judicial restraint.¹³⁸ On the other hand, opponents of strong forms of constitutional review have embraced increasingly radical reform proposals, ranging from temporary fixes like ‘court packing’, to restraints on the scope of judicial power, and the embrace of various forms of ‘popular constitutionalism’, including an executive-led constitutionalism redolent of the governance of Andrew Jackson and the legal theories of Carl Schmitt.¹³⁹ As the US Supreme Court continues to engage in controversial political actions beyond the scope of democratic control, such calls are only likely to grow, and perhaps endanger American constitutionalism tout court.

The history of the Council of Censors, however, enables us to recognize that the origins of American constitutionalism lie in a project to empower the people and suggest that only a return to this original mission can lead it out of its present crisis. As we have seen, when the authors of the Pennsylvania Constitution thought about how to create a political order which could withstand assaults by the Constituted Powers, they did so with the express end of enshrining popular sovereignty as the foundation of government. But this, they recognized, would depend upon the people maintaining control over a constitution subject to regular reform and amendment, rather than one which ossified under an onerous and rarely invoked amendment process. What their vision helps us to recognize is that at its origins, modern constitutionalism was bound up with the exercise of popular sovereignty, designed to preserve the power of the people in an age of representative government. Its aim was not to transform large areas of political life into matters of technical legal arbitration in which, as the abolitionist Congressman Philemon Bliss put it, political life became subject to:

The spectacle of a gowned conclave, gravely setting aside statutes and Constitutions of States; enforcing powers not granted in the compact … to make universal a local and exceptional despotism … [to which] when essaying some new constitutional construction, as they call their attacks upon the rights of the States and their citizens, we are taught to bow without question, as the faithful to the decrees of the Grand Lama.¹⁴⁰

Instead, the aim of the constitutional doctrine of this radical strand among the founding generation was to render popular sovereignty inviolable, even under conditions where it could not be constantly exercised.¹⁴¹

Although their vision of the constitution as a limit upon political elites was rejected both in Pennsylvania and at the Federal Convention, moreover, the doctrine of constitutional supremacy would ultimately win out. When it did, however, its essentially popular character was sacrificed in favour of judicial supremacy. Combined with the relatively static nature of the constitution since under strict amendment criteria, this model has cemented an enduring tension between constitutional and democratic legitimacy in American politics. For the Pennsylvania framers, avoiding such a state of affairs required that the guardian of the constitution be elected and its decisions subject to review by regularly elected constitutional conventions, rather than merely being underscored by the theoretical possibility of politically unlikely future revisions.

Further, while the relatively short—and highly contentious—lifespan of the Pennsylvanian Council of Censors might suggest its limited utility as a model for the present, the experience of the Vermont Council of Censors suggests otherwise. In Vermont, unlike Pennsylvania, the Council of Censors operated for almost a century, without ever becoming a site of serious partisan conflict. Although the Vermont Council of Censors was, eventually, abolished in 1870 to bring Vermont’s Constitution in line with those of the state, it had successfully avoided the ‘danger that the Legislature will someday turn upon the Council with an act of homicide, as they had in Pennsylvania’, for decades prior, as one Censor, Joseph W Colbourn, argued.¹⁴² If nothing else, the Vermont experience suggests that the failure of the Pennsylvania Council of Censors does not prove fundamental unsustainability of elective modes of constitutional guardianship. On the other hand, experience suggests that we should be sceptical of the efficacy of a constitutional guardian without the legal power to compel the other branches of government to follow its edicts. It may not, after all, be sufficient to assume the faithful revocation of unconstitutional laws by the very legislature which passed them.

Regardless of these issues, in returning to the largely forgotten history of the Council of Censors, and the debate on the guardian of the constitution which it provoked in the early republic, we are prompted to think again about what it means to have a constitution and about whether its enforcement must necessarily entail a limitation of popular power. In this way, a third path between the rigid legalism of Hans Kelsen and the raw exertion of political power advocated by Carl Schmitt in their famous debate on the guardian of the constitution might thus be found.¹⁴³ But returning American constitutionalism’s radical origins also presents us with the crucial challenge of working out how that vision of constitutionalism as popular sovereignty might be recovered and the serious political and constitutional reform which it might require. To achieve that end, far from fearing the peril of politics, constitutionalists may be better served by embracing it.

The author would like to thank the UK Arts and Humanities Research Council (AH/X001970/1, AH/R012709/1) for their financial support during the production of this article. I am also grateful to Dr Sylvana Tomaselli for her comments on early drafts of this article, and to the participants of the 2022 workshop ‘Populism and Constitutionalism: Historical Perspectives’ at Aristotle University of Thessaloniki and the staff and fellows of the Kluge Center at the Library of Congress for the same.

Footnotes

1

Aurora General Advertiser, no 4076, 25 January 1804, 2. On the controversy over Marbury in Pennsylvania, see Elizabeth K Henderson, ‘The Attack on the Judiciary in Pennsylvania, 1800–1810’ (1937) 61(2) Pennsylvania Magazine of History and Biography 113–36.

2

Aurora General Advertiser, no 4076, 25 January 1804, 2.

3

For example, New Hampshire had adopted a provisional constitution in early 1776, quickly followed by South Carolina, Virginia, and New Jersey. On the formation of the Provincial Congresses and writing of the first state constitutions, see Allan Nevins, The American States during and after the Revolution, 1775–1789 (Macmillan, London 1924) 26–60.

4

‘Pennsylvania Constitution, 1776’ in The Proceedings Relative to Calling the Conventions of 1776 and 1790, 54–66. For a lengthy exegesis of its provisions, see J Paul Selsam, The Pennsylvania Constitution of 1776 (University of Pennsylvania Press, Philadelphia 1936) 176–204; Robert L Brunhouse, The Counter-Revolution in Pennsylvania, 1776–1790 (Octagon Books, New York 1971) 14–21.

5

‘Pennsylvania Constitution, 1776’ (n 4) 64–5.

6

Gordon S Wood, Power and Liberty: Constitutionalism in the American Revolution (OUP 2021) 49.

7

For the first of these two interpretations, see Lewis Hamilton Meader, The Council of Censors (Brown UP, Providence 1899) 2–4; Nevins (n 3) 153; Gordon S Wood, The Creation of the American Republic, 1776–1787 (University of North Carolina Press, Charleston 1969) 232; Donald S Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Louisiana State UP, Baton Rouge 1980) 132–3. For the second, see Wilfried Nippel, Ancient and Modern Democracy: Two Concepts of Liberty?, ed and tr Keith Tribe (CUP, Cambridge 2016) 130; Burton Alva Konkle, George Bryan and the Constitution of Pennsylvania (William J Campbell, Philadelphia 1922) 128–9; Selsam (n 4) 201; Brunhouse (n 4) 58–60 and 144–5. Although a wealth of recent scholarship has challenged these earlier accounts of the origins and function of the Pennsylvania Constitution of 1776, with a particular stress on the pragmatic origins of the state Constitution and its continuities with both colonial forms of government and the ‘conservative’ constitution which followed, this work has largely ignored the debate on or origins of the Council of Censors. See particularly, Owen S Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania (Pennsylvania State UP, University Park 1995); John B Frantz and William Penack, ‘Introduction: Pennsylvania and Its Three Revolutions’ in Frantz and Penack (eds), Beyond Philadelphia: The American Revolution in the Pennsylvania Hinterland (Pennsylvania State UP, University Park 1998).

8

Kenneth Owen, Political Community in Revolutionary Pennsylvania 1774–1800 (OUP 2018) 44; David W Houpt, To Organize the Sovereign People: Political Mobilization in Revolutionary Pennsylvania (Charlottesville, University of Virginia Press, 2023) 23–4.

9

Houpt (n 9) 23–4.

10

Sieyès, ‘Qu’est-ce que le Tiers-État?’ in Marcel Dorigny (ed), Œuvres de Sieyès, 3 vols (Paris, Edhis 1989) i, no 3, 71–80; Emmanuel-Joseph Sieyès, ‘Vues sur les moyens d’exécution dont les Représentans de la France pourront disposer en 1789’ ibid i, no 2, 77.

11

Brunhouse (n 4) 221–5.

12

Thomas Paine, ‘Common Sense’ in Philip S Foner (ed), The Compete Writings of Thomas Paine, 2 vols (Citadel Press, New York 1945) i, 1, 4–9.

13

Nevins (n 3) 143–70; MJC Vile, Constitutionalism and the Separation of Powers (2nd edn, Liberty Fund, Indianapolis 1998) 155.

14

Vile (n 13) 213.

15

‘Pennsylvania Constitution, 1776’ (n 4) 64–5. At the time of the constitution’s writing, as Pennsylvania had 12 counties, the Council of Censors would have comprised a body of 24 members (rising to 38 by the time of its abolition).

16

ibid.

17

ibid.

18

ibid.

19

ibid.

20

ibid.

21

Journal of the Council of Censors, Historical Society of Pennsylvania (hereafter HSP) Am 8071, 7–12.

22

Journal of the Council of Censors (Hall and Sellers, Philadelphia 1784) 168–75.

23

Brunhouse (n 4) 165.

24

Meader (n 7) 45.

25

Christopher H Pearl, Conceived in Crisis: The Revolutionary Creation of an American State (University of Virginia Press, Charlottesville 2020) 169.

26

See anecdotes in A Owen Aldridge, Franklin and His French Contemporaries (New York UP, New York 1957) 11–12; Gordon S Wood, The Americanization of Benjamin Franklin (Penguin, New York 2004) 212.

27

For the definitive critique of Franklin’s role, see William S Hanna, Benjamin Franklin and Pennsylvania Politics (Stanford UP, Stanford 1964) 201–5. However, for a recent restatement of Franklin’s importance, see Adam Lebovitz, ‘Colossus: Constitutional Theory in America and France, 1776–1799’ (doctoral dissertation, Harvard University, 2018).

28

Pennsylvania Gazette, no 3074, 29 April 1789, 2.

29

Burton Alva Konkle, The Life and Times of Thomas Smith, 1745–1809, a Pennsylvania Member of the Continental Congress (Campion and Company, Philadelphia 1904) 77; Konkle (n 29) 128–9; Selsam (n 4) 150–1; Nevins (n 3) 150–2; Meader (n 7) 15–16; Wood (n 7) 232; Lutz (n 7) 133.

30

Owen (n 8) 44, 104–6; Houpt (n 9) 23–4.

31

Demophilus, The Genuine Principles of the Ancient Saxon, or English, Constitution (Robert Bell, Philadelphia 1776). This pamphlet is also attributed to Bryan in Demophilus, ‘The Genuine Principles of the Ancient Saxon, or English, Constitution’ in Charles S Hyneman and Donald S Lutz (eds), American Political Writing during the Founding Era, 1760–1805, 2 vols (Liberty Press, Indianapolis 1983) i, 340l; H Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Liberty Fund, Indianapolis [1965] 1998) 233–4.

32

Joseph S Foster, In Pursuit of Equal Liberty: George Bryan and the Revolution in Pennsylvania (Pennsylvania State University Press, University Park 1994) 80–2.

33

Alexander Graydon, Memoires of a Life, Chiefly Passed in Pennsylvania, within the Last Sixty Years (John Wyeth, Harrisburg 1811) 285–6.

34

Foster (n 32) 80–2.

35

Benjamin Rush, Letter to John Adams, 24 February 1790, in Benjamin Rush, Letters of Benjamin Rush, ed LH Butterfield, 2 vols (Princeton UP, Princeton 1951) i, 532.

36

For Bryan’s papers from 1776, see, GBP, HSP, Collection 0090, Box 1. As late as 1779 when Bryan discussed altering the provision of salaries for state officials in a private memorandum, he did not mention the potential salaries of the Censors. See George Bryan, ‘Plan of Providing for the Officers of Government’ GBP, HSP, Collection 0090, Box 1, f.2. Nor are the Censors mentioned in Bryan’s papers held at the Library of Congress, see George Bryan papers, 1764–86.

37

Meader (n 7) 2–4; Nevins (n 3) 153; Wood (n 7) 232; Lutz (n 7) 132–3; Nippel (n 7) 130.

38

Andrew Lintott, The Constitution of the Roman Republic (Clarendon Press, Oxford 1999) 115–20; AE Astin, ‘Regimen Morum’ (1988) 78 Journal of Roman Studies 14–34. However, as Benjamin Straumann notes, Cicero did appear to suggest transforming the censors into guardians of the ‘fidelity of the laws’ and guardians of a set of higher constitutional norms above ordinary legislation in his Laws. Benjamin Straumann, Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution (OUP, Oxford 2016) 181–2.

39

In Montesquieu, see Charles-Louis de Secondat, Baron de Montesquieu, The Spirit of the Laws, ed and trans Anne M Cohler, Basia Carolyn Miller, and Harold Stone (CUP, Cambridge 1989) 49–57, 71, 173 on the censors, ephors, and Areopagus as ‘guardians of the laws’ as moral guardians, see also 161–2, 174 on the Roman tribunes. On the censorship and preservation of mœurs in Rousseau, see Jean-Jacques Rousseau, ‘Du Contrat Social’ in Michel Launay (ed), Œuvres complètes, 3 vols (Éditions du Seuil, Paris 1971) ii, 518, 572.

40

Meader (n 7), 2–8; Nevins (n 3) 153.

41

Rousseau (n 39) 570–1. ‘Ce corps, que j’appellerai tribunat, est le conservateur des lois et du pouvoir législatif. Il sert quelquefois à protéger le souverain contre le gouvernement … quelquefois à soutenir le gouvernement contre le peuple’.

42

Wilfried Nippel, ‘Ancient and Modern Republicanism: “Mixed Constitution” and “Ephors”’ in Biancamaria Fontana (ed), The Invention of the Modern Republic (CUP, Cambridge 1994) 6. On censors, ephors, and tribunes in early modern political thought, see also Jotham Parsons, ‘The Roman Censors in the Renaissance Political Imagination’ (2001) 22(4) History of Political Thought 565.

43

On some of these institutions, see Nippel (n 42) 25–6. Unlike this work, Nippel associates this idea with that of a constitutional court.

44

Charles Howard McIlwain, Constitutionalism: Ancient and Modern (Cornell UP, Ithaca, NY 1947) 27–38.

45

ibid 35. The ancient constitution is closer to the Greek idea of ‘nomos’, ‘regime’, or ‘politeia’ than modern constitutionalism and has little to do with contemporary written charters of government.

46

Henry Bolingbroke, ‘A Dissertation upon Parties’ in Bolingbroke: Political Writings (CUP Cambridge 1997) 1, 88.

47

Keith Baker, Inventing the French Revolution (CUP, Cambridge 1990) 254–5.

48

Bernard Bailyn, The Ideological Origins of the American Revolution: Enlarged Edition (Harvard UP, Cambridge, MA 1992) 296–9; Wood (n 7) 308.

49

Daniel Shute, ‘An Election Sermon’ in Hyneman and Lutz (n 31) i, 109, 117.

50

Thomas Paine, ‘The Rights of Man’ in Paine (n 12) i, 243, 278. The phrase is repeated in ‘The Rights of Man, Part Second’ ibid i, 345, 381.

51

Joseph de Maistre, Considerations on France, ed and trans Richard A Lebrun (CUP, Cambridge 1994) 49–50.

52

Alexander Hamilton, ‘Federalist No 1’ in Alexander Hamilton, John Jay and James Madison, The Federalist, ed Terence Ball (CUP, Cambridge [1788] 2002) 1.

53

J Hampden Dougherty, Power of Federal Judiciary over Legislation (GP Putnam’s Sons, New York 1912).

54

Larry D Kramer, The People Themselves Popular Constitutionalism and Judicial Review (OUP, Oxford 2005) 58–65. However, for a different perspective which contends that judicial review has been integral to American constitutionalism since the early days of the republic, see William Michael Treanor, ‘Judicial Review before Marbury’ (2005) 58 Stanford LR 455; Wood (n 6) 126–48.

55

Nevins (n 3) 168–9. This is not to say that the principle that public authorities could be bound to the laws by external bodies—usually courts—was invented in the eighteenth century in the United States. The idea, as many authors have shown, has a pedigree perhaps extending to the classical era. But this did not encompass the enforcement of a codified, higher constitutional law written by the people or their extraordinary representatives over even acts of legislation, an idea quite alien prior to the eighteenth century.

56

Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (CUP, Cambridge 2016) 187–90.

57

Anon, ‘Serious Questions Proposed to All Friends to the Rights of Mankind in Pennsylvania, with Suitable Answers’ in Pennsylvania Gazette and Weekly Advertiser, no 1746, 22 May 1776, 1; Anon, Four Letters on Interesting Subjects (Styner and Cist, Philadelphia 1776); Demophilus (n 31). On Paine’s putative authorship of the Four Letters, see A Owen Aldridge, Thomas Paine’s American Ideology (University of Delaware Press, Newark 1984) 219–21, 237–9; Gregory Claeys, Thomas Paine: Social and Political Thought (Unwin Hyman, London 1989) 51, 61; Gordon S Wood’s introduction to the pamphlet in Thomas Paine, Common Sense and Other Writings, ed Gordon S Wood (Modern Library, New York 2003) 57; Wood also provides the time frame for the pamphlet. In Thomas Jefferson’s library, now housed at the Library of Congress, Washington, DC, the document is bound together with Paine’s Common Sense, though whether this was because Jefferson knew Paine was the author or due to their both being published in Philadelphia in spring to summer of 1776 is not clear. See Library of Congress E187.C72 vol 15.

58

Anon, ‘Serious Questions’ (n 57) 1; Anon, Four Letters (n 57) 24; Demophilus (n 31) 38.

59

Anon, ‘Serious Questions’ (n 57) 1.

60

ibid.

61

Demophilus (n 31) 38.

62

ibid. For the original quote, see Algernon Sidney, Discourses Concerning Government (Booksellers of London and Westminster, London 1698) 117. The emphasis is found in the pamphlet, but not in Sidney’s original.

63

Obadiah Hulme, An Historical Essay on the English Constitution (Edward and Charles Dilly, London 1771).

64

Anon, Four Letters (n 57) 18. On the connection, see Hyneman and Lutz ( (n 31) i, 340.

65

ibid 19.

66

Anon, ‘Serious Questions’ (n 57) 1.

67

Anonymous, Four Letters (n 57) 18–19.

68

ibid 15.

69

ibid.

70

ibid 19.

71

ibid.

72

ibid 18.

73

This idea can be found in the opening pages of Paine’s ‘Common Sense’, which distinguishes between a pre-political society and government which it creates ((n 12) 4–7). The same point was made by Sieyès in his famous pamphlet ‘What Is the Third Estate?’, which distinguished between the nation and the state ((n 10) 71).

74

Thomas Young, ‘To the Inhabitants of Vermont’ in Zadock Thompson, History of Vermont: Natural, Civil, and Statistical, in Three Parts, with a New Map of the State, and 200 Engravings, 2 vols (C. Goodrich, Burlington 1842) ii, 106.

75

Although Lucia Rubinelli’s acclaimed recent book Constituent Power: A History (CUP, Cambridge 2020) has firmly cemented Sieyès’s reputation as the father of the idea of Constituent Power, various earlier proposals have been located which contain references to ‘Constituting’, ‘Constitution-Making’, and ‘Constituent’ powers (especially in English) before 1788. On some of these, see Pasquale Pasquino, ‘The Constitutional Republicanism of Emmanuel Sieyès’ in Biancamaria Fontana (ed), The Invention of the Modern Republic (CUP, Cambridge 1994) 107, 112–13; Michael Sonenscher, Sans-Culottes: An Eighteenth-Century Emblem in the French Revolution (Princeton UP, Princeton, NJ 2008) 308–10; Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’ in Martin Loughlin and Neil Walker (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP, Oxford 2008) 27–48.

76

Gilbert Du Motier marquis de Lafayette, Mémoires, correspondance et manuscrits du général La Fayette, ed François de Corcelle, 6 vols (H. Fournier, Paris 1838) iv, 36.

77

Anon, ‘Serious Questions’ (n 57) 1.

78

ibid.

79

Anon, Four Letters (n 57) 24.

80

ibid.

81

Demophilus (n 31) 38.

82

Wood (n 6) 21–2.

83

Anon, Four Letters (n 57) 24.

84

Carl Schmitt would later attribute the emergence of the modern constitutional court to the same process, in late nineteenth- and early twentieth-century Europe (‘Der Hüter der Verfassung’ (1929) 55 Archiv des öffentlichen Rechts 161, 175–86).

85

Anon, Four Letters (n 57) 19.

86

David Wootton, ‘Introduction: The Republican Tradition: From Commonwealth to Common Sense’ in David Wootton (ed), Republicanism, Liberty, and Commercial Society (Stanford UP, Stanford 1994) 1, 38.

87

Anon, Four Letters (n 57) 19.

88

Rousseau (no 39) 539–41.

89

Jacques-Pierre Brissot de Warville, Bibliothèque Philosophique, du Législateur, du Politique, du Jurisonculte, 8 vols (Desuages, Paris, 1782–85) iii, 243–5.

90

Meader (n 7) 38–63.

91

‘Staughton Draft Constitution, 1799’ in Mary Handlin and Oscar Handlin (eds), The Popular Sources of Political Authority: Documents of the Massachusetts Constitution of 1780 (Harvard UP, Cambridge, MA 1966) 426–7.

92

Samuel Houston, A Declaration of Rights, also the Constitution or Form of Government […] of the State of Frankland (Francis Bailey, Philadelphia 1786) 22. This unrecognised state, which had broken away from North Carolina, was regularly referred to as both ‘Franklin’ and ‘Frankland’, but the former predominates today.

93

Anon, ‘The People the Best Governors: Or a Plan of Government founded on the just principles of Natural Freedom’ in Hyneman and Lutz (n 31) i, 390–400, 390. On this pamphlet, see Harry A Cushing, ‘The People the Best Governors’ (1896) 1 American Historical Review 284, 285.

94

Anon (n 93) 393–4.

95

ibid.

96

ibid 393.

97

Thomas Smith to Arthur St Clair, 3 August 1776, in William Henry Smith (ed), The St Clair Papers: The Life and Public Services of Arthur St Clair […] with his Correspondence and other Papers, 2 vols. (Robert Clarke and Co, Cincinnati 1882) 370, 371.

98

John Dickinson, ‘Note Offered to the Members’, 27 November 1776, Pennsylvania Library Company, Box 6, F.8.

99

Anon, ‘A Dialogue between Orator Puff and Peter Easy, on the Proposed Plan or Frame of Government’ Pennsylvania Ledger: Or the Virginia, Maryland, Pennsylvania, and New-Jersey Weekly Advertiser, no 93, 2 November 1776, 1–4. The other three parts of this dialogue can be found in Pennsylvania Ledger: Or the Virginia, Maryland, Pennsylvania, and New-Jersey Weekly Advertiser, no 90, 12 October 1776; no 91, 19 October 1776; and no 92, 26 October 1776.

100

Anon, ‘A Dialogue between Orator Puff and Peter Easy’ (n 99), 1.

101

ibid.

102

ibid.

103

Benjamin Rush, Letter to Charles Nisbet, 27 August 1784, in Rush (n 35) i, 335, 337.

104

Pennsylvania Journal and Weekly Advertiser, no 1780, 12 March 1777, 3.

105

Hampden, ‘To the Citizens of Philadelphia’, Pennsylvania Evening Post, no 326, vol III, 13 March 1777, 139.

106

Brunhouse (n 4) 31. For the pamphlet, see Benjamin Rush, Observations upon the Present Government of Pennsylvania (Styner and Cist, Philadelphia 1777).

107

Ludlow, ‘Letter II: Observations on the Present Government of Pennsylvania’, Pennsylvania Journal, no 1791, 28 May 1777, 1.

108

ibid.

109

Ludlow, ‘Letter III: Observations on the Present Government of Pennsylvania’, Pennsylvania Journal, no 1792, 4 June 1777, 1.

110

‘To the Citizens of Pennsylvania’, Pennsylvania Gazette, no 2545, 24 March 1779, 1.

111

Brunhouse (n 4) 156.

112

Samuel Bryan, ‘The Draught of an Address from the Council to the Freemen of the Commonwealth of Pennsylvania’, Pennsylvania Gazette, no 2835, 6 October 1784, 2.

113

Benjamin Rush, Letter to John Montgomery, 13 November 1783, in Rush (n 35) i, 313–14.

114

Pennsylvania Gazette, no 3066, 4 March 1789, 3.

115

James Madison, ‘Federalist No 48’ in The Federalist (n 52) 241, 243–4.

116

ibid 244.

117

‘Debate in the Pennsylvania State Convention, Friday November 30 1787’ in John Bach McMaster and Frederick D Stone (eds), Pennsylvania and the Federal Convention, 1787–1788 (Pennsylvania Historical Society, Lancaster 1888) 283, 294.

118

James Madison, ‘Federalist No 50’ in The Federalist (n 52) 248, 250.

119

ibid.

120

ibid 248–9.

121

Max Farrand (ed), The Records of the Federal Convention of 1787, 3 vols (Yale UP, New Haven 1927) i, 97–8.

122

ibid 100–1.

123

ibid ii, 298.

124

ibid 299.

125

ibid.

126

ibid 299–300.

127

Alexander Hamilton, ‘Federalist No 78’, The Federalist (n 55) 278, 379–81.

128

James Kent, ‘An Introductory Lecture to a Course of Law Lectures’ in Hyneman and Lutz (n 31) i, 936, 941–4.

129

Saikrishna Bangalore Prakash, Imperial from the Beginning: The Constitution of the Original Executive (Yale UP, New Haven 2015) 300–1 and 304–6.

130

Dougherty (n 53) 2.

131

See debates in the Senate of Monday 14 January 1822 and Tuesday 15 January 1822, in Annals of the Congress of the United States: The Debates and Proceedings of the Congress of the United States: Seventeenth Congress First Session, December 3rd 1821 to May 8th 1822 (Gales and Seaton, Washington, DC 1855) 68–92 and 96–114.

132

Nikolas Bowie and Daphna Renan, ‘The Separation-of-Powers Counterrevolution’ (2020) 131 Yale LJ 2024.

133

Aurora General Advertiser, no 1473, 29 August 1795, 3. See Adam Lebovitz, ‘Franklin Redivivus: The Radical Constitution, 1791–1799’ (2017) 57 AJLH 1.

134

Aurora General Advertiser (n 1) 2.

135

Henderson (n 1) 135–6.

136

Laura Kalman, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism (OUP, Oxford 2022).

137

Martin Loughlin, Against Constitutionalism (CUP, Cambridge 2022).

138

Stephen Breyer, The Authority of the Court and the Peril of Politics (Harvard UP, Cambridge, MA 2021).

139

See on court ‘personnel change’ and judicial restraint, Ryan D Doerfler and Samuel Moyn, ‘Democratizing the Supreme Court’ (2021) 109 California LR 1712 and Samuel Moyn and Rephael Stern, ‘To Save Democracy from Juristocracy: J.B. Thayer and Congressional Power after the Civil War’ (2023) 38 Constitutional Commentary (forthcoming). On ‘popular constitutionalism’, see Mark Tushnet, Taking the Constitution Away from the Courts (Princeton UP, Princeton, NJ 2020). See also Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (OUP, Oxford, 2022). On popular constitutionalism and the executive branch, see Aaron Belkin and Mark Tushnet ‘An Open Letter to the Biden Administration on Popular Constitutionalism’ <https://balkin.blogspot.com/2023/07/an-open-letter-to-biden-administration.html> (accessed 20 July 2023).

140

Quoted in Charles Warren, The Supreme Court in United States History, 1856–1918 (Little Brown and Co, Boston 1922) 57.

141

To some degree, this echoes the concerns and proposals of contemporary advocates of ‘plebeian democracy’ or ‘plebeian republicanism’. Unlike this literature, however, the Council of Censors was not concerned with class conflict, but solely the conflict between the people and their representatives. In this literature, see John P McCormick, Machiavellian Democracy (Cambridge UP, Cambridge 2011) 170–88; Gordon Arlen and Enzo Rossi, ‘Must Realists Be Pessimists about Democracy? Responding to Epistemic and Oligarchic Challenges’(2019) 8(1) Moral Philosophy and Politics 27; Camila Vergara, Systemic Corruption: Constitutional Ideas for an Anti-Oligarchic Republic (Princeton UP, Princeton, NJ 2020) 265–7; Jansoch Prinz and Manon Westphal, ‘The Tribunate as a Realist Democratic Innovation’ (Political Theory, published online 8 September 2023) <https://journals.sagepub.com/doi/10.1177/00905917231191089> accessed 8 April 2024.

142

‘Journal of the Council of Censors of the State of Vermont at its several sessions held in Montpelier 1869’ in Paul S Gillies and D Gregory Sanford (eds), Records of the Council of Censors of the State of Vermont (n.p., Montpelier 1991) 629–707, 661.

143

On which, see Lars Vinx, ‘Introduction’ in Lars Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (CUP, Cambridge 2015) 1. For their respective contributions, see Hans Kelsen, Wer soll der Hüter der Verfassung sein?: Abhandlungen zur Theorie der Verfassungsgerichtsbarkeit in der pluralistischen, parlamentarischen Demokratie (2nd edn, Mohr Siebeck, Tübingen 2019) and Carl Schmitt, Der Hüter der Verfassung (Duncker and Humblot, Berlin 2016).