Conventions
(Reference: Gordon S. Wood, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1969.)
At the independence of the states, it was common for the existing assembly to form its own constitutional convention to devise and amend its own constitution. In Virginia, Thomas Jefferson raised an outcry against the existing assembly's right to frame a constitution without a new election.
Following the May 15, resolution of the Continental Congress, a group of Pennsylvanian's drew up a Protest to the Pennsylvania Assembly renouncing "the authority and qualifications of this House from framing a new Government." (at 335)
Declared the author of "The Genuine Principles of the Ancient Saxon, or English Constitution," if the constitution were to be a "sett of fundamental rules by which even the supreme power of the state shall be governed," it must "be formed by a convention of the delegates of the people, appointed for the express purpose." Only then would it be unalterable, "in any respect by any power besides the power which first framed it." Only a convention could make the People of Pennsylvania a "legal people." (at 337)
"Convention" was an ancient term in English history, dating back at least to early medieval times. It was a special extraordinary assembly of the barons, clergy and/or the people called outside of the established Crown institutions. The 1688 Convention placing William and Mary on the throne was used as a precedent for the legitimate use of conventions when society was thrown back into a "state of nature" during revolution.
The convention became incorporated into our various constitutions as an institutionalization of original consent.
James Burgh wrote in his "Political Disquisitions":
"…the people ought to provide against their own annihilation. They ought to establish a regular and constitutional method of acting by and from themselves, without, or even in opposition to their representatives, if necessary." (at 323)
John Adams had encapsulated the salient concept by stating that the people were the "Source of all Authority and Original of all Power." The eventual solution to the problem of distinguishing the higher law from statutory law was the establishment of the constitutional convention. (at 329)
Jefferson observed in his "Notes on the State of Virginia":
"…that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments." (at 309)
The early state constitutions continually faced legal challenges and were bolstered by proclamations, special requirements for voting majorities, approval by successive legislative sessions and other devices to distinguish the constitution from a mere legislative act.
In 1778, the Massachusetts "General Court" or legislature decided not to convene a constitutional convention - drawing up its own constitution to be "made Public for the Inspection and Perusal of the Inhabitants, before Ratification thereof by the Assembly." Replying, the town of Norton declared:
"That as the End of government is the good of the people So the power and right of forming and Establishing a plan thereof is Essentially in them." (R.C. Simmons' The American Colonies - From Settlement to Independence, Davis McKay Co., Inc., c1976, pg 363.)
Different townships declared their specific displeasure with the 1778 constitution by forming a constitutional convention in 1779. The Massachusetts constitution of 1780 was the final result, declaring itself to be "a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." (at 289)
Bostonian Thomas Dawes in an oration stated:
" We often read of the original contract, and of mankind, in the early ages, passing from a state of nature to immediate civilization... And yet, the people of Massachusetts have reduced to practice the wonderful theory." The people had "convened in a state of nature, and, like the ideas of the patriarchs," had actually drawn and signed "a glorious covenant." (at 289)
