In Defense of the Constitution of 1776

Keith Whitaker  |  The Road to the American Revolution

Wait a minute—the Constitution wasn’t ratified until 1789!

No, I’m talking about the New Hampshire State Constitution, which was enacted on January 5, 1776, thirteen years before the United States Constitution, and, indeed, before any other state constitution in the emerging nation. It was the first.

And yet, the Constitution of 1776 gets little respect. The State’s own website does not include a page for it. There appear to be no events planned to celebrate its birth. Historians call it a “woefully makeshift” piece of machinery. It was replaced by a completely new constitution on June 2, 1784.

So, was the first the worst?

Let’s take a brief look at the text and context to get a better sense of this very first American constitution.

Though settled in the 1620s, New Hampshire had no royal charter to fall back on when the last royal governor fled in mid-1775. Instead, New Hampshire’s Fourth Provincial Congress, a revolutionary body with dubious constitutional standing, took over basic governmental functions. In October, it asked the Continental Congress in Philadelphia for instructions. The official reply, of November 3, recommended that the Provincial Congress:

call a full and free representation of the people, and that the said representatives, if they think it necessary, shall establish such a form of Government as in their judgment will best produce the happiness of the people, and most effectually secure peace and good order in the colony, during the continuance of the present dispute between Great Britain and the colonies.

In late December 1775, a Fifth Provincial Congress met in Exeter to take up the Continental Congress’s recommendation. On January 5, 1776, this provincial body, “Resolved themselves into a House of Representatives or Assembly for the Colony of New Hampshire,” and as such voted to “take up civil government for this Colony.”

The constitution that they “took up” is short, only 909 words—shorter than the United States Constitution by far, and two-thirds the size of the Declaration of Independence.

After a brief introduction, the framers spend almost a third of the document laying out their grievances against the “ministry of Great Britain”: it has waged war on them, stolen their ships and cargo, and left them without legislature or courts. As a result, they are “reduced to the necessity” of establishing a government to preserve peace and good order and to secure the lives and property of the colony’s inhabitants. The framers protest that they did not seek to throw off their “dependence” on Great Britain and shall “rejoice” if a “reconciliation” can be made. In the meantime, they resolve upon a form of government to continue “during the present unhappy and unnatural contest.”

The resolves that follow make up most of the Constitution.

They establish a House of Representatives as the state Assembly. The House will select a twelve-person council—with a president—to handle executive business. The Assembly and Council will make almost all state appointments, including senior military staff. The Council and Assembly will also decide upon the shape of the state courts and the manner of electing future Assemblies, should the war last longer than a year.

As many have noted, the Constitution of 1776 lacks a Bill of Rights and any separation of powers. There is no executive office and no independent judiciary. The legislature is supreme. These absences are a large part of the negative judgment on the New Hampshire Constitution, then and now.

Nor did they include any high-flown calls for science and education, as in the later Massachusetts or federal constitutions. Perhaps even in 1776, these framers were convinced by Dartmouth College that educational mischief needed no public encouragement.

But something else of great importance was missing from this Constitution: any appeal to a higher power. The framers do not mention the King. They do not mention God—the Creator or Nature’s God. There are no pledges of “sacred honor.” The “people,” through their “free suffrages,” are the source of this Congress’s authority and its Constitution. It is a thoroughly revolutionary document, the very first constitution to be enacted for and on behalf of the people. Perhaps this is why it acknowledges, even foregrounds, its own questionable authority. It invites the people whom it addresses to accept it, or reject it, by their own lights alone.

And that they did.

Only a week after its enactment, a Portsmouth delegation complained about its not being submitted to the people for a vote. By September 1776, towns in Grafton County abstained from the call for election to the new state legislature. After the state endorsed the Articles of Confederation in November 1777, leaders realized the need for a less temporary constitution, but the one they proposed in 1779—which would have made permanent the 1776 arrangement—was rejected by voters. In the meantime, in June 1778, 16 Connecticut Valley towns seceded to Vermont. After Massachusetts enacted its own “modern” constitution in 1780, New Hampshire leaders called another Constitutional Convention. In 1781, it proposed a draft constitution that would enact separation of powers, a separately elected Governor with a veto, a separate judiciary, and would forbid plural office holding. In the summer 1781, the people, still anxious about executive power, rejected that draft. The Constitutional Convention tried again, with a second draft that made representation more democratic but retained the governor; again, the people rejected it. Finally, after the Provisional Peace was signed in November 1782, and the people had agreed to a one-year extension on the temporary constitution of 1776, the Convention proposed a third draft that eliminated the Governor, eliminated the separate Council, and left appointments with the legislature—but forbade plural office-holding. Amazingly, it was approved shortly after the Treaty of Paris was signed, in October 1783.

One of the main complaints about the Constitution of 1776 was that it allowed a very small number of men to draft the Constitution, enact it, and then serve under it as the legislative, executive, and judicial powers in the state. The most dramatic example of this “pluralism” is Meshech Weare, who likely wrote the constitution, and then, for the duration of the war, served in the Assembly, was President of the Council, was Chief Justice of the Supreme Court, and led the “Committee of Safety”—which ruled the state when the legislature was not in session, which was most of the time. The surprising fact that this constitution reveals is how easily republicanism fits with paternalism. The people want government, but they don’t really want to govern. A small number of trustworthy, upstanding officeholders may provide efficiency and expertise. As an additional bonus, they don’t cost much. This is a constitution for people who want to get to work, manage their private affairs, and believe that the government governs best that governs least.

The New Hampshire Constitution of 1776 was not perfect, but neither was it merely an experiment or trial run. It bravely met a serious need at a moment of emergency. It stayed true to revolutionary principles: “No Kings. Let the People rule.” Yet, subsequent constitution-makers in this country took another direction. They checked the people’s power through pitting office against office, relying on the ambition of office-seekers to limit potential threats to liberty. Their approach also accommodated the expansion of states (and eventually the federal union) to integrate factions, such as the geographical sections that gave the New Hampshire framers so many headaches.

These gains come with a price. Never again would the people’s rule in an American state be as direct as in New Hampshire in 1776. Also, the choice for more “scientific” constitutions changes the character of the political elite from stewards to seekers. Insofar as these “modern” constitutions make rule appear more illustrious, they excite those among the people who enjoy ruling rather than merely thwarting oppression. They impart a glory to public affairs that threatens to undermine the quiet, peace, and primacy of private life.

At a time when the American people seem alternately depressed or enraged, complaining either that a “King” or “deep state” rules them illegitimately, perhaps we could learn something from the resistance that the people of New Hampshire put up, for well over a decade, against supposedly less “makeshift” forms of government machinery.

Follow Keith Whitaker on X.

Art by Beck & Stone