Benjamin Franklin And The Bold Experiment Of Pennsylvania’s 1776 Constitution

Pennsylvania tried something in 1776 that still tempts us today: push democracy to the front of the line and assume the people will keep government honest. With Dr. Beienberg, we walk through the Pennsylvania Constitution of 1776 and Benjamin Franklin’s surprisingly central role in a state charter that deserves way more attention in any conversation about the American founding, state constitutions, and the roots of U.S. constitutional law.

We break down what Pennsylvania gets right, especially its sweeping Declaration of Rights. You’ll hear why its protections for speech, jury trials, criminal procedure, and limits on searches and seizures become so influential across the early states. We also talk through religious liberty as the founders framed it, plus early constitutional commitments that feel strikingly modern, like support for public education and constraints on debtors’ prisons.

Then we turn to the part that made Pennsylvania a punching bag for the 1787 Constitutional Convention. Annual elections, a legislature with huge power, a weak executive, and weak courts add up to a system that Madison, Wilson, and the Federalist Papers repeatedly treat as a “do not copy” model. We unpack the logic Pennsylvanians believed in, including transparency and voter oversight, and why it often fails in practice without durable checks and balances and real separation of powers. We close with the Council of Censors, Pennsylvania’s later 1790 rewrite, and a quick detour into why Pennsylvania is called a “Commonwealth.”

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Transcript

0:01

Welcome back to Civics in a Year. We're starting right before our end of our 250. I can't believe we're getting there. I can't believe we're oh my gosh, what a year. But we're gonna talk about some really important founders and some just really kind of that like foundational things. And I know you're like, Liz, we already did this at the beginning, but there are some people that just deserve their own podcast or some things that deserve their own podcast. And we're not just doing biographies, we're doing sort of underappreciated or forgotten uh features of their political thought and their actions that you might not know about. And maybe some historical drama, because we all know that's my favorite. So we're starting with the Pennsylvania Constitution. We are not doing all 13 colonies. We are doing Pennsylvania, though. Have Dr.

Why Pennsylvania Matters

0:48

Byenberg with me. Dr. Byenberg, why are we talking about the Pennsylvania Constitution? Ben Franklin is, I think, usually if we think of sort of if we think of who are the most famous founders, I think it's usually some combination of Washington, Jefferson, Hamilton, Adams, Franklin, the six. There's usually six that are always in there. Franklin's always in there. I'm gonna make a case for why Roger Sherman should be in that list in a subsequent session, and Adams. I'm gonna make a case for why Sherman should be in there. But I think Franklin is certainly probably the most famous for much of uh in the worldwide for a lot of period. But Franklin is mostly known for all the scientists stuff and his pithy quotes and the book and the publishing, and that's all fine. But I think that Franklin, part of his legacy that's not appreciated, is that he is at least one of the three most influential, apparently, probably the most influential of the folks writing the Pennsylvania Constitution. And that is a document that I think uh needs to be better appreciated. If there were three texts that people don't understand about the founding that they need to know, one is the Declaration and Resolve So the First Continental Congress, which we've talked about at length. That's sort of the first Continental Congress's protests largely on localism against Parliament. And then the second two are the Pennsylvania and Massachusetts constitutions. You can't understand American constitutionalism without them. So on this session on Franklin, I thought what we might do would be thinking about the Pennsylvania Constitution, why it's important, and then uh eventually why it becomes basically the punching bag when they decide to make the U.S. Constitution. As I tell my students, they're basically sub-tweeting what they did in Pennsylvania, don't do that. So the Pennsylvania Constitution is drafted in 1776. John Adams in the Continental Congress pushes through a resolution saying, states, get ready for self-government, start putting your stuff together, which they all take to mean like get your state constitutions in order. What do you want if you want to scratch out, you know, royally appointed governor, whatever it is you're gonna do. Pennsylvania gets really excited and they take this seriously as a chance to build. I mean, they often have lines saying, like, isn't this amazing we have a chance to build a new civilization, like a new set of ideas, new institutions? And so they take that. They're very influenced by Tom Payne and the idea of self-government. And they take that and they run with it, and they run with it really, really hard. We don't have great records on it. In fact, literally this morning I read through all of them again, which

The Declaration Of Rights

3:18

took me like 20 minutes, because the convention we don't have something like Madison's notes, right? We just basically have a couple of motions and they're very minimal. Well, think about this. This is in they're putting this constitution together in July of 1776, July, August, September. What else is happening then? There's an actual revolution happening, right? So they can't be too fast. So the second, so we don't have much of the records, but the secondary accounts again suggest that Franklin was one of the major figures. He is the formal president of the convention. Okay. So some features about it that I think are worth noting and perhaps worth celebrating, uh, particularly its Declaration of Rights. It's widely copied in other states. It expands on and copies most of what's in Mason's Virginia Declaration of Rights, adds a lot more. So robust protections of freedom of speech, trial to you know, trial by jury and all the criminal procedure protections, a very robust right to keep and bear arms, religious liberty, like all the things that you sort of would expect in a declaration of rights is in the Pennsylvania one. So it expands on what Mason had, but uh search and seizure, all kinds of all kinds of great things in it. It has a lot of political theory in it, so it's very wordy and lots of sort of kind of moralizing sounding language, like it's good for government that. And then like the right to vote is an important thing, and so therefore you should do it, right? So it has kind of lots of rhetorical, kind of admonitory stuff, and they pair that back later, but still it has a lot of political theory in there, but a lot of really robust discussions of rights. It's religious liberty, I think, may strike modern audiences as constrained. At the time, I'd say they're quite expansive. So governing officials have to believe in God, the Old Testament and the New Testament as inspired, but they can be of any denomination. But citizens of all kinds who are not atheists have all civil rights and all have the right to worship as long as they're not disrupting peace or breaking sort of public order. We've talked about the atheist thing before, but that's just not because they're concerned for souls. It's because they really have this idea that oaths are essential to basically being a good citizen. That we you if you swear an oath to something, you need to be scared that you're gonna follow through on it. Okay. So that's a thing that's come up before and it will come up again. So the Declaration of Rights has a lot of guarantee of public education, uh, which I think is the first constitutional text to have that, so that the state will, the local governments are expected to stand that up. They have constraints on debtors' prisons, you can't just go to jail for being poor. There's quite a bit that's uh I think quite interesting and cool about this constitution. But there are also some things that are not so good. So this constant Give me the tea. Yeah, yeah, yeah, yeah, exactly. So if you read the Constitutional Convention records of 1787, Madison and Crew, they are constantly ragging on the Pennsylvania Constitution. James Wilson, who is from Pennsylvania, basically goes there and says, guys, what we're doing in Pennsylvania, do not do this. Do not do this when you are writing the U.S. Constitution. Madison's vices, that document where he's complaining about what makes for bad constitutionalism before the convention meets, is full of uh implicit references to the Pennsylvania Constitution. And the Federalist papers name it repeatedly. Federals 48, 49, and 50, I'll pretty much call it out for being a bad constitution in various ways. And I'm sure

Why Founders Attacked The Design

6:52

there's others. Those are just the ones that jump out to me. Come to me offhand. Yeah, it's very, very criticized. So why? Well, the feature that makes it interesting and memorable also is its flaw, which is that it gets very excited about democracy and pretty much nothing else. That is to say, it makes democracy the sort of almost uniform goal, the single-minded goal. And so it structurally has an incredibly direct democracy with annual elections. It has no governor. There is a president, quote unquote, which again is worth emphasizing, they pick the weaker title of president instead of governor because they want to do less. But it doesn't have a governor. It has a president who is picked by the legislative basically picked by the legislature to a one-year term. Is it the president of the legislature or is this like a separate executive office? It's a separate executive office chosen from among the people who were part of the legislative office. Interesting. It's a little more complicated. There's this kind of council thing, but it's effectively the legislature picking kind of one of their own or sort of adjacent to them on a one-year term. So this person has no meaningful independence. It has very, very weak courts. So they're on seven-year renewable terms. They can be removed earlier than that by the legislature, I think by a majority vote. So legislature has a lot of power. The legislature has almost unchecked power. So this is why when Madison's vices, when he says, huh, there's unjust laws. They pass lots of stupid laws. They pass laws too fast. They don't think them through very well. Therefore, we need structures and the separation of powers and whatnot is very much, as I tell the students, they're subtweeting Pennsylvania. Pennsylvania and then the two states that copied it. Georgia and Vermont, they're kicking around, because again, this is being put together in mid-7076. Continental Congress members are there, and then they're going back to their home states and saying, we got this cool constitution from Pennsylvania. Let's try it too. So Georgia and Vermont both copy it. Vermont's not a state at this point, but they put it together pretty quickly. So that is to say, it's basically direct democracy. And they assume that, and this is where Madison, this is why I think the Pennsylvania Constitution is so important to understand the later constitutional architecture. The assumption basically that they make in Pennsylvania is that the primary check is going to be the people obsessively following what their government is doing and making sure it doesn't do anything bad. Right. So the actual check that they think is going to be the most important is that all the procedural stuff about publicity. Like you have to print stuff, you have to have everything considered so the voters can look at it before it gets finally voted on. And so it's these kinds of things because they think direct, they just can't conceive the idea that self-government would go wrong. Right? There just there's this kind of enlightenment optimism about the people will do it right, we'll have democracy, the people will check it. A virtuous citizenry will be well, I mean, in their defense, we're fighting a war to kick out a foreign, to

Annual Elections As The Big Check

9:50

kick out what now feels to us like a foreign power, to get self-government. Of course, we're going to take this seriously. And so there is a logic to it, but empirically it does not work out very well. So it basically creates a direct democracy, and for all the reasons that Madison and Crewe talk about, and John Adams' direct democracy we know doesn't often work very well. And so it is, in some sense, the really fascinating alternate road of American constitutionalism, which some of the Western states pick back up with, say, initiative referendum and whatnot, arguably. But the Pennsylvania Constitution is see is what happens when you build a constitution that focuses basically on direct democracy without institutional checks. They don't want institutional checks because they think that the people will be virtuous and institutional checks are just places for the system to get bogged down and captured and co-opted. So it's a real again, it's a fascinating understanding that follows from one interpretation of the Declaration of Independence, the self-government part, but not the sort of institutional constraints that we also see sort of littered throughout the Declaration of Independence, right? The importance of having independent judges, the importance of divided power, right? All that stuff they basically just say, nope, the self-government part is what we want, because we've been reading a lot of Tom Pain. I mean, which is great, but like right before this, we did a whole thing on the lore of the founding, and basically all the lessons we've learned. I say we as like the royal we here, about like instances where things like this don't work, where you give somebody unchecked power or give, you know, a body an unchecked power. Like I feel like they're just living in la-la land. Well, no, they're they're I don't like this text. I think it's crazy for many reasons. But but their thinking is it's annual elections, and basically everything is gonna have to be distributed and publicly accessible to voters, right? So they're thinking that that is the check, that the voters themselves are the check. And they look back to the other governments and say, well, it's not like you know you're having that much sort of direct popular intervention at the end of the Roman state or something. Right. So that's what they think the check will be: a virtuous citizenry with the institutional check of annual elections, with the ability to see what their government is doing with all the publicity restrictions on you know what gets put out, how quickly stuff happen because they assume that the Pennsylvania Constitution says everything has to be voted on repeatedly, but they of course, as you know from legislative procedure, they'll just like unanimously consent waive all that stuff. So there there is actually a coherent logic to it. Okay. There is a coherent logic to it. But it is not taking into account, as you alluded to, political history. When we talk about with the other ones, sort of the often, shall we say, mixed view of human nature that the more Christian founders are gonna have, right? So again, there are reasons that this is not a very great constitution, but it's worth understanding their logic to then under because I think that logic still has an appeal to lots of people today, which is we should take a gigantic pole of what the 50% plus one of Americans want and do that, right? And like that temptation is still with us today. And I think the Pennsylvania Constitution is a helpful case study of, in fact, why that might not be the better system and why the better ones might be, say, the more robust constitutionalism of say John Adams and the U.S. Constitution that comes later. I will also say one other thing that I think this constitution does well, that gets picked up even more so by others. It has a clear and explicit sense that the constitution is binding on all of the government and especially the legislature, right? Because the English Bill of Rights technically only applies to the monarch. And so they make clear to say, no, this is binding on all of the government, and there is a mechanism, albeit a really bad one, called the Council of Censors, to try the legislature for violating the Constitution, to recommend ways to correct it and to so it has an enforcement mechanism. And then they'll make that even stronger in 1790, when basically all of the gang that got the U.S. Constitution over the line, James Wilson particularly, come back, James Wilson and Benjamin Rush, and they say, All right, this Pennsylvania con this U.S. Constitution is really cool, which borrows from Massachusetts. Let's rewrite the Pennsylvania

Council Of Censors And 1790 Rewrite

14:11

one to look like that. And so they do. And so they rewrite this, they leave the Declaration of Rights basically alone. They take off some of the nice political theory. But otherwise, it looks much more like Massachusetts and much more like much more like the U.S. Constitution. And Russia's actually been citing John Adams very heavily and criticizing this for years. And so spoilers, our next podcast will be about John Adams and the different version of the Constitution is a is a preview there. It's interesting because I'm looking at the Declaration of Rights, and a lot of these things, I'm like, like ex post facto laws and at Tainder, like a lot of this stuff exists in our constitution. So genuinely, from just a like cursory glance, I'm like, this constitution looks fine. But that's the declaration of rights, which even now even like the other articles, I'm like, these look fine. Now, granted, some of them were added later, like especially in the Declaration of Rights, the prohibition against the denial or abridgment of equality of sex was that's that's like 1971. Yeah, but then the one on race is 2021. Well, sort of. There's another one that basically says about civil. And to be clear, I've been talking about the Franklin 1776 Pennsylvania Constitution. We're not talking about the 2021. We're literally writing a book about the other one. So I I it it does exist, but it's very, very, very different. So the Declaration of Rights, they did a pretty good job. And so that is carried over. Uh but to the civil rights one, they actually have one I want to say also from the 70s that basically says civil rights are guaranteed. And then the legislative history on how that of equal protection on race, what that was doing on top of the equal protection of civil rights, is kind of a weird legislative history. But yeah, it's the the Declaration of Rights was not the controversial part even then. Like John Adams and they they more or less pick up the Pennsylvania one. It's the structural stuff. Yeah. Which again is

Rights Look Great Without Enforcement

16:09

a theme that I think we keep coming back to in this podcast. That listing out rights is Justice Sklee used to say, if you read the Bill of Rights of the Soviet Constitution, it looks great, but there's no structure to actually enforce it. Yeah. There you go. I have one more question. Yes. Why is it called the Commonwealth of Pennsylvania, not the state of Pennsylvania? Virginia does it as well as the Kingdoms. Kentucky is Kentucky. I think those are the only three. I don't I don't know what there's a sort of conscious reasoning for that. Yeah, I I don't remember what the what the reasoning is for. It was a term that was used to describe polit polities back in the day. So why they specifically said we need to do that to like I don't know what that means. Massachusetts is one, too. Massachusetts is one too. Yes, that's right. But they still like, I mean, they still have the same structures as states. Like there's not these like huge differences. That doesn't mean anything. Commonwealth versus state doesn't mean anything. It's just in their court cases, instead of saying like state v Evans or state v. Bienberg, it says Commonwealth v. But no. It gets actually dicey in Pennsylvania because

Why It’s Called A Commonwealth

17:09

they when they added this, they had a secretary of the Commonwealth, but it does what the set like Secretary of State does in other states. And so the language is sort of hazy in this between the state constitution still says Commonwealth, but if you actually go on the websites, it often will say like Secretary of State or something like that. Pull it up. You can test me on it. They call it the Secretary of the State often, even in the Pennsylvania government documents. I will look this up. But so this is perfect for our next one. The next one is the common Commonwealth of Massachusetts. Dr. Beyenberg, thank you for going over the Pennsylvania Constitution and Ben Franklin. And before I go, I just want to say go birds.