John Adams Wrote the Oldest Working Written Constitution in the World

Ask a room of Americans which country has the oldest written constitution still in use, and most will say the United States, proudly and correctly as far as national charters go. Then ask which document is older still, and watch the confusion. The answer is in Boston. The Constitution of the Commonwealth of Massachusetts took effect on October 25, 1780, more than eight years before the federal Constitution took effect, and it is still the supreme law of that state. It was drafted almost entirely by one man, who then sailed for Europe and missed the final vote. His name was John Adams.

Adams is remembered for many things: his defence of the British soldiers after the Boston Massacre, his role in pushing Congress to independence, his presidency, his long friendship and rivalry with Jefferson. His constitutional work gets less attention than it deserves. Yet the Massachusetts Constitution set the pattern of separated powers, an independent executive and judiciary and a declaration of rights that the federal Framers studied in 1787. Here is how he built it, and why he thought no constitution could work without a moral people to live under it.

Thoughts on Government, 1776

Adams's constitutional thinking first reached print in the spring of 1776. As independence approached, several colonies needed to write new governments, and delegates in Congress asked Adams for advice. He wrote it out in letters, and a version was published in Philadelphia in April 1776 as a short pamphlet, Thoughts on Government.

Its argument is compact. The happiness of society is the end of government, and the best form is the one that produces the most happiness for the most people. Fear, the principle of despotism, cannot do that. Virtue can, and so the best government is a republic. And Adams gave a definition of a republic that has echoed ever since: an empire of laws, and not of men, a phrase he drew from the English republican writer James Harrington.

Then the design. Adams argued that a single legislative assembly was dangerous. It would be subject to the same vices as an individual: hasty, ambitious, inclined to vote itself privileges and to make itself permanent. So the legislature should have two houses, each a check on the other. There should be a separate executive with a veto, so that the legislature could not swallow the other branches. There should be judges independent of both, holding office during good behaviour with fixed salaries, so that they would be neither servile nor partisan. Elections should be frequent. And the education of the young, especially of the lower classes of people, should be a public concern.

That pamphlet was a direct challenge to Thomas Paine, whose Common Sense, published in January 1776, favoured a single-chamber assembly. Pennsylvania followed Paine and adopted a unicameral legislature in its 1776 constitution. Massachusetts would follow Adams.

Massachusetts tries twice

Massachusetts governed itself under its old colonial charter for the first years of the war. In 1778 the state legislature drafted a constitution and submitted it to the towns. The towns rejected it by a large margin. Their objections were instructive. Many complained that it had no declaration of rights. Many objected that a legislature should not write the constitution that bound it; a body that makes the rules for itself can change them for itself.

The second objection was revolutionary. It meant a constitution had to come from a different and higher source than ordinary legislation. So in 1779 Massachusetts did something new. The towns elected delegates to a convention whose only purpose was to write a constitution, and the result would be submitted to the towns for approval.

The convention met in Cambridge on September 1, 1779. It appointed a committee of about thirty to prepare a draft. That committee handed the work to a subcommittee of three: John Adams, his cousin Samuel Adams and James Bowdoin. The subcommittee handed it to John Adams. He wrote the draft in the fall of 1779, and in November he sailed for France on a diplomatic mission. The convention debated and amended his draft through the winter, approved it on March 2, 1780, and sent it to the towns. The towns' returns were counted in June, the convention declared the constitution ratified, and it took effect on October 25, 1780.

Notice the sequence: a specially elected convention drafts, and the people ratify. That is exactly the method the federal Constitution would use in 1787 and 1788. Article VII's ratification by conventions was not invented in Philadelphia. Massachusetts had shown how it was done.

The document's structure

The Massachusetts Constitution opens with a preamble that states the theory of the whole:

The body politic is formed by a voluntary association of individuals: it is 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.

That sentence is pure Locke, but notice the word "covenants." It carries the Puritan inheritance of Massachusetts, the idea of a covenanted community going back to the Mayflower Compact of 1620. Jerusalem and Athens, or rather Plymouth and Westminster, meet in a single line.

Then come two parts. Part the First is a Declaration of the Rights of the Inhabitants of the Commonwealth. Part the Second is the Frame of Government. The order is deliberate: rights first, then the government that exists to secure them.

The Declaration of Rights begins: "All men are born free and equal, and have certain natural, essential, and unalienable rights." It goes on to protect the free exercise of religion, the right to be protected in life, liberty and property, trial by jury, freedom from unreasonable searches and seizures, freedom of the press, the right to keep and bear arms for the common defence, the right to assemble and petition, and more.

Its most famous article is the thirtieth, which makes the separation of powers a right of the people:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

There is the phrase from Thoughts on Government, now written into fundamental law. Montesquieu had described the separation of powers as the condition of liberty; Adams turned the description into a command.

The Frame of Government follows his 1776 design. A General Court of two houses, a Senate and a House of Representatives. A governor elected by the people annually, with a veto that two-thirds of each house could override. A council to advise the governor. Judges appointed by the governor with the council's consent, holding office during good behaviour. The qualified veto with a two-thirds override is the same mechanism Article I, Section 7 gives the President, and the Philadelphia delegates knew its source.

The constitution even includes a chapter on education. Its section on the encouragement of literature begins by stating that wisdom and knowledge, as well as virtue, diffused generally among the body of the people, are necessary for the preservation of their rights and liberties, and it charges legislators and magistrates in all future periods to cherish the interests of literature and the sciences, including Harvard College and the public schools in the towns. A constitution that commands the cultivation of learning is a constitution that knows self-government must be taught.

A clause that ended slavery, and one that did not last

Two parts of the Declaration of Rights have stories worth telling honestly.

The first is Article I. "All men are born free and equal." Within a few years, enslaved people in Massachusetts went to court on the strength of that sentence. In the Quock Walker cases of 1781 to 1783, Chief Justice William Cushing instructed a jury that slavery was inconsistent with the rights declared in the constitution. Slavery effectively ended in Massachusetts by judicial application of the document's own words. Adams's text, and the convention's amendments to it, did something its authors may not have fully foreseen, and it was right.

The second is Article III, which authorised towns to require support for public Protestant teachers of piety, religion and morality. It reflected the old Massachusetts establishment, and it drew opposition from Baptists and others even in 1780. Massachusetts ended it by amendment in 1833, the last state to give up an established church. The First Amendment's ban on a national establishment did not reach the states then, and Massachusetts settled the question for itself, through its own amendment process. That is federalism doing what it was designed to do; see No Law Respecting an Establishment Meant Something Specific in 1791.

The document has been amended many times since 1780, but its structure and much of its original language remain. It is the oldest functioning written constitution in the world, and Adams himself served in the Massachusetts convention of 1820 that considered revising it, at the age of 85.

A Defence of the Constitutions

In 1778 the French statesman Anne-Robert-Jacques Turgot wrote a letter, later published, criticising the American states for imitating English institutions with their balanced branches. He favoured concentrating authority in a single assembly representing the nation.

Adams, then in London as the American minister to Britain, answered with a sprawling work in three volumes, A Defence of the Constitutions of Government of the United States of America, the first volume of which appeared in 1787. It surveyed republics ancient and modern to show that unchecked single assemblies had always ended in faction, oppression or tyranny, and that liberty survived only where power was balanced among separate branches. The first volume was reaching America while the Convention sat.

The Defence is long and disorganised, and his opponents mocked it as a defence of aristocracy and monarchy. That charge was unfair. Adams was defending balance, not privilege. He believed every society produces an elite, by wealth, birth or talent, and that the question is whether that elite is contained in a branch of its own, checked by the people's branch and an independent executive, or set loose to dominate a single assembly. It is the argument Madison made in Federalist 51: ambition must be made to counteract ambition.

A moral and religious people

Adams's most quoted words about constitutions came later, in a letter of October 11, 1798, written as President to the officers of a brigade of the Massachusetts militia:

Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

That sentence has been quoted so often that its argument gets lost. Adams was not saying the Constitution required a religious test or an established church. He had just written about a government unable to contend with human passions unbridled by morality and religion. His point was about limits. A constitution of limited, checked powers depends on citizens who restrain themselves. A people that cannot govern its own appetites will demand a government that governs them, and a limited constitution will not survive that demand.

That is the same warning Franklin gave on September 17, 1787, and that Washington gave in his Farewell Address. It is the Founders' consensus, and it is a conservative one: freedom rests on character, and character is formed in families, churches, schools and communities long before anyone reaches a polling place. See Why Washington's Farewell Address called religion and morality indispensable.

The objection, answered

Here is the strongest objection to holding up Adams's constitution as a model. It was the product of a small, homogeneous, religious New England society. It established a church. It kept property qualifications for voting and office. Its author was attacked in his own time as an admirer of monarchy and aristocracy. Why should a vast, diverse, democratic country look to it?

The answer:

1. Its principles were not parochial. Separation of powers, bicameralism, an independent executive with a qualified veto, judges serving during good behaviour and a declaration of rights are the core of the federal Constitution and of every state constitution today.
2. It corrected itself by its own process. The establishment clause of Article III and the property qualifications were removed by amendment. The document contained the means to fix its own failings, and its own Article I helped end slavery in Massachusetts.
3. Its method of making constitutions was democratic in the deepest sense. A convention elected for the purpose and ratification by the people placed the constitution above ordinary law and above the legislature. That is popular sovereignty done properly.
4. The charge of monarchism confuses balance with privilege. Adams wanted the few contained, not empowered. His design is a check on every faction, including the one that claims to speak for the people.

The verdict: the Massachusetts Constitution of 1780 is a working model of how a free people writes a charter, and it is still working.

For the larger story of how the federal Framers combined these ideas, see The Virginia Plan, the New Jersey Plan and the Final Constitution Compared. For how the states serve as laboratories under that design, see Federalism Lets Fifty States Experiment, and the Constitution Planned It. For Adams's earlier courage as a lawyer, see John Adams Defended the British Soldiers Who Fired in the Boston Massacre. And for Madison's definition of tyranny that Article 30 answers, see Federalist 47 Defines Tyranny as All Powers Gathered Into the Same Hands.

The case in brief

1. John Adams set out his design in Thoughts on Government in 1776: two houses, an independent executive with a veto, independent judges and "an empire of laws, and not of men."
2. After the towns rejected a legislature-written draft in 1778, Massachusetts elected a convention in 1779, and Adams drafted the constitution it adopted, ratified by the people and in force from October 25, 1780.
3. Its Declaration of Rights and Article 30's separation of powers became a model for 1787, and its Article I helped end slavery in Massachusetts.
4. Adams warned in 1798 that a constitution of limited powers works only for a moral and religious people.
5. The document is still in force, the oldest working written constitution in the world, because it was built to check power and to amend itself.

What you can do: read your own state's constitution, starting with its declaration of rights, and compare it with the federal text on the Constitution page; then find your state legislators on My Representatives.