The nation’s first constitution demonstrated Americans’ wariness of strong government and anti-Federalist ideas about government. The Articles of Confederation detailed “a league of friendship” between 13 sovereign states. The states agreed the Confederation government could conduct war, make peace, enter into foreign alliances and resolve disputes between member states. Otherwise, the states retained the power to raise taxes, regulate trade and govern as their citizens saw fit.
Americans’ suspicion toward government authority also shaped state constitutions, as did regional ideas about the role of government. For example, the Constitution of the Commonwealth of Massachusetts stands as the oldest functioning written constitution in the world. Bay Staters have amended it just 120 times in the past 240 years.
Drafted by John Adams in 1780, the Massachusetts Constitution states that the constitution is a “social compact,” a document in which all citizens agree to be governed by certain laws in an effort to serve and protect “the common good.” From there, the document outlines 30 articles and a structure of government, including Article IV, which stipulates that “the people of this commonwealth have the sole and exclusive right of governing themselves.” The people of Massachusetts have a cultural and political tradition of holding their government accountable so that it protects their rights and governs in a way that benefits the common good. This is why Gov. Charlie Baker (R) in late March appealed to Bay Staters’ “common sense” and issued a stay-at-home “advisory” instead of an executive order.
Alabama offers a different example, as it has had six constitutions. Drafted in 1901, its present constitution has been amended more than 800 times and is the longest written constitution in the world. Its first section delineates the rights of the people of Alabama in 36 articles. Article Two notes “that all political power is inherent in the people.” The 35 other articles detail restrictions on government action in citizens’ lives. At all times, according to Article 35, “The sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”
Out of deference to these constitutional limitations, Gov. Kay Ivey (R) delayed issuing a statewide order for residents to stay at home until April, initially viewing it as an act of government “usurpation and oppression.”
Over the past 400 years, Americans have proudly passed on a cultural and political tradition of suspicion and resistance when it comes to strong government. The executive orders and advisories requiring residents to stay home to slow the growth of the pandemic directly challenge this cultural and political tradition of caution and hark back to the anti-Federalist line of thinking that most government power should be located within the states.
But there is another aspect of constitutions on which federal authorities and state governors are relying: the interest of the people. What happens when the interest of the people demands government authority? Americans have almost always grappled with this question and how to answer it through their state governments.