Recreating Government

Internally, no domestic government was recognized as having the inherent right to directly receive the former prerogatives or regalia of the sovereign English Crown under that status of "ruler."

The Declaration of Independence marked a new beginning, calling for an examination of the nature of government. Under the European system, charters of government, prerogative grants and various concessions had been compacts between the ruler and the ruled. The new nation-states experienced a "paradigm shift," in which the locus of "sovereignty" shifted to the body of the people of each state.

In most countries, stated Charles Backus in 1788, the people "have obtained a partial security of their liberties, by extorted concessions from their nobles or kings. But in America, the People have had an opportunity of forming a compact betwixt themselves; from which alone, their rulers derive all their authority to govern."

According to Thomas Paine, the Magna Carta and the English Bill of Rights were not constitutions. They "did not create and give powers to Government in the manner a constitution does." They were only "restrictions on assumed power," bargains "which the parts of government made with each other to divide powers, profits and privileges." Government "has of itself no rights; they are altogether duties." (Gordon S. Wood, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1969, at 601.)

The Declaration ideologically erased the lines between ruler and ruled. Americans began to challenge the legal authority of the pre-existing colonial legislature to constitute government without specific act of approbation by the people.

Ideologically, many drew upon the writings of John Locke as a basis for framing an understanding of the act of constituting government anew. This understanding began with the voluntary formation of a "body politic" through "social compact." As developed during the Revolutionary period, the social compact became viewed as an organic compact entered into by individuals to relinquish control over a small amount of alienable rights to a group executive and majority legislature in exchange for greater security of person and property. This "body politic" then formally acted through the institution of a "convention" to constitute state governments, established in form and limited in authority through written instruments called "constitutions." The domestic state government's inheritance of royal prerogative was, accordingly, limited by its constitutional capacity to receive it.

A constitution, said Thomas Paine, was a "thing antecedent to a government, and a government is only the creature of a constitution." "To suppose that any government can be a party in a compact with the whole people, is to suppose it to have existence before it can have a right to exist." The American constitution, said Paine, was "not a thing in name only; but in fact...It is the body of elements, to which you can refer, and quote article by article; and which contains...every thing that relates to the complete organization of a civil government, and the principle on which it shall act, and by which it shall be bound."

A constitution, as Justice James Iredell stated, was "a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given." (The Creation of the American Republic 1776-1787, at 600.)

The anonymous Pennsylvania author of "Four Letters on Interesting Subjects" wrote: