Page 8 - Delaware Lawyer - Fall 2021

FEATURE
Constitution
Randy J. Holland
The Delaware
How key provisions differ from their federal counterparts
State charters are the foundation of American constitutional law. The first state constitutions were written a decade before the United States Constitution. A knowledge of the origins and history of state constitutions is essential to understanding federalism in the United States.1
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The first state constitutions attempted to set forth in writing universal princi- ples, grounded in reason. The chal- lenge in writing state constitutions was to reconcile the known conceptions of sov- ereignty with the American sense that any legitimate government must have a popu- lar foundation. Although the specific pro- visions varied, the legal result reflected in each of the first state constitutions was the same: to define sovereignty with precision and to restrain its exercise within marked boundaries. A widespread concern before the Declaration of Independence had been a desire for popular control over the pro- cess of governing.2
Of the eight state constitutions writ- ten in 1776, Delaware’s was the first to be drafted by a convention elected by the populace expressly for that purpose. It is not surprising that Section 1 of the 1776 Declaration of Rights and Fundamental Rules of the Delaware State (“Declara- tion of Rights”) provided that “all govern- ment of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”3
Many of the features of the United
States Constitution were modeled on the earlier state constitutions. The framers, however, did not include either a com- prehensive adoption of the common law or a declaration of rights. These omissions stood in sharp contrast to the state consti- tutions, almost all of which contained ex- plicit provisions dealing with the retention or limited reception of English common law and included declarations of rights, often based on common law antecedents. Like many of its contemporary counter- parts, the 1776 Delaware Constitution in Article XXV stated:
The common law of England, as well as so much of the statute laws as have been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the Legislature: such parts only excepted as are repug- nant to the rights and privileges contained in this constitution.
Similarly, in 1776, Delaware enacted a Declaration of Rights that preserved all of the fundamental freedoms that had been