Myths And Facts About The Fundamental OrdersPosted: February 12, 2014 Filed under: Legal History | Tags: fundamental orders Leave a comment
Connecticut is known as the “Constitution State,” not just because that’s what appears on many license plates, but because of a very old document known as the “Fundamental Orders,” which some argue represents the first written constitution in America.
Not everyone agrees with the accuracy of that historical argument. Attorney Michael Besso, former law clerk to Chief Justice Ellen Ash Peters, Assistant Attorney General, and member of the board of directors (and Editor-in-Chief) of the Connecticut Supreme Court Historical Society, has researched the history of the Fundamental Orders in depth. I invited him to share his thoughts as a guest blogger.
* * *
By Michael Besso
Lawrence J. DeNardis has recently observed an important anniversary in Connecticut political history: that 375 years ago last month the Connecticut colony adopted the Fundamental Orders, which formalized aspects of its government. I join Dr. DeNardis in acknowledging this significant event, even if I do not accept his assertion that the Fundamental Orders was “America’s First Constitution.” Rather than engage in a debate on this point, I write to note that early Connecticut’s history shows that the Fundamental Orders was not regularly considered to be an especially important founding document for our government – one with lasting, constitutional significance – let alone an exemplar for the country as a whole.
In the mid-1600s, Connecticut received a royal charter on which to ground, firmly, the propriety of its effective self-government. It was the charter, rather than the Fundamental Orders, that carried significance for the people of Connecticut. This was evident during the Revolutionary period. At the time of the break with Great Britain Connecticut’s General Assembly declared that the form of government would remain that which was defined in the charter, albeit with the exclusion of any obligations to Great Britain that the charter it have required. No less a figure than Roger Sherman declared, when asked why Connecticut was so zealous in the cause of liberty, that it was so to protect “our beloved charter.”
By the 1780s, however, several people in the state began to debate, publicly, whether the state in fact had a proper foundational authority for its government. The early consensus – at least as expressed in the few pamphlets and newspaper debates on the topic – was that the charter form of government was, in effect, hollow. These people declared publicly that there did not exist any proper foundation for state government. The Fundamental Orders were never mentioned, let alone cited, as an established foundational authority for Connecticut’s self-government.
As the 1790s progressed, it appears as if these early public musings about governmental authority prompted a search through the colonial record. Soon, prominent figures began to write about the Fundamental Orders as the authoritative font of government. That is, only in the 1790s did the Fundamental Orders replace the charter as the cherished foundation of self-government – for the first time the Fundamental Orders were being deemed a “constitution.”
A political debate in 1804 makes this point nicely, and provides the minor lesson I offer here. In the midst of national debates among Federalists and Republicans, Connecticut Federalists who long controlled the state were fending off a vigorous Republican campaign to win power. Central to the Republican challenge was the claim that the state in fact had no proper constitution. The Federalist establishment responded by pointing to the Fundamental Orders. The Republicans were not at all impressed: “… federalists have found an old agreement of a few inhabitants, settled at Hartford, Windsor and Wethersfield, made while their bounds were undefined, while New-Haven and its vicinity composed a distinct colony, and had no concern with this agreement; and we are now told, ‘HERE IS YOUR CONSTITUTION IN WRITING, MADE AND ADOPTED BY THE PEOPLE.’” A look at early 1600s’ history shows that this Republican criticism of the Federalist claims was not far off base. Yet the Federalists prevailed at that time – they easily quashed the Republican attacks. And so began a turn in history to champion the Fundamental Orders.
To reiterate, I agree that the Fundamental Orders marked a notable development in Connecticut’s political history. But, as with other artefacts of history, how the Fundamental Orders has been described and invoked over time perhaps tells us more about the needs and interests of the generation making the historical claim than about the historical reality. And, with this in mind, our consideration of and debate about the Fundamental Orders will surely continue.