The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States

Abstract

Abstract In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.