Two hundred and fifty years ago today, Pennsylvania ratified its first constitution. This anniversary, coinciding with America’s 250th, is a timely reminder that the American tradition of enshrining rights in written, fundamental law is as old as American independence itself — in fact, it’s even older. Yet, we tend to credit the federal Constitution alone for protecting our rights as citizens and forget the state constitutions entirely.
Before the American colonies declared independence, the Continental Congress passed a resolution recommending that the colonies reject British colonial governments and create their own. The colonies thus began to write their first constitutions, five years before America’s first federal constitutional document, the Articles of Confederation.
A noteworthy feature of several of these state texts, Pennsylvania included, were bills of rights, inspired by the American Revolution and the inherited English-rights tradition. After failing to appeal to Parliament and the unwritten English constitution for natural-rights protections, the colonists realized that their laws — and the rights they protected — must be tangible and knowable in order to be secure.
As these rights declarations became common in state constitutions, many people found it curious when the 1787 federal Constitutional Convention passed a constitution without a bill of rights, an omission soon rectified at Congress’s first session in 1789.
The government created by the federal Constitution was one of “dual sovereignty,” where the central government and the states were equally powerful within their respective spheres. The idea was that the federal Bill of Rights would protect the individual’s rights against the federal government. State constitutions would protect the individual’s rights against state governments.
The state constitutions were never intended to be miniature, less-important versions of the federal document.
The Supreme Court upheld this interpretation throughout the 19th century. In Barron v. Baltimore (1833), for instance, the court ruled that a citizen who believed a state had violated their rights could not appeal to the federal Bill of Rights for recourse, because each state had adopted a constitution for itself.
The subordination of state constitutions in the public mind occurred gradually, partly as a side effect of the Civil War and Reconstruction, when the 13th, 14th and 15th Amendments (abolishing slavery, defining citizenship and extending suffrage to Black men) constitutionally enshrined the federal government’s right to enforce laws in the states for the first time. The dual sovereignty framework began to erode.
The court continued to defer to the states in many areas, but the practical predominance of the federal Constitution solidified with Gitlow v. New York (1925), which applied federal Bill of Rights protections to the states, and the New Deal, which expanded federal power over social and economic policy. By this point, dual sovereignty seemed more an ideal than a reality.
It is no surprise, then, that most Americans think the federal Constitution is citizens’ only rights repository, when that couldn’t be further from the truth. We have seen in recent years several instances where states have amended their constitutions in response to national political discussions and perceived threats to citizens’ rights.
For example, reinterpretation of the federal Constitution in Dobbs v. Jackson (2022) was met by the constitutional codification of reproductive rights in Ohio. In 2020, amid a national concern that hunting and fishing would become subject to greater partisan regulation, Utah amended its constitution to establish the right to hunt and fish (Article I, Section 30).
We can learn a few things from these examples. First, because state constitutions are easier to amend than their federal counterpart, they are more responsive to local interests. Second, the federal Constitution does not list all rights to which we are entitled. It merely provides the baseline. State constitutions are battlegrounds over the meaning and extent of individual rights. It is up to us, at the local level, to identify, articulate and protect the rights we consider fundamental.
Two hundred and fifty years ago, just after the Declaration of Independence but prior to the drafting of the federal Constitution, Pennsylvania didn’t wait for a central government to tell them what rights they possessed. They articulated these rights for themselves. This is one of the most important lessons of state constitutional history. The state constitutions were never intended to be miniature, less-important versions of the federal document. They are and have always been independent expressions of fundamental law and American self-government.