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Pennsylvania's Constitutions and the Amendment Process - Where it Began, Where it is Now
By Ann Liivak, former Reference/Special Collections Librarian
23 Pennsylvania Law Weekly 324 (March 27, 2000)
The Province of Pennsylvania and the Commonwealth of Pennsylvania have operated under several constitutions for more than 300 years. Black's Law Dictionary describes a constitution as the "fundamental and organic law of a nation or a state." Constitutions are living documents, and as such, change over time.
The processes by which state constitutions are amended vary from state to state. In Pennsylvania the constitutional amendment process occurs in the legislature. The proposed amendments originate in either the state Senate or House of Representatives and must be approved by the majority vote of both houses in two successive sessions.
There is a provision for publication so that the public has an opportunity to learn of the proposed amendment and the position taken on the amendment by candidates for election to the General Assembly. Proposed amendments are submitted to voters for approval or disapproval, not more than once in a five-year period. Once ratified by voters, the proposed amendments become part of the Constitution.
The first Frame of Government 1682, also known as Penn's Charter, was written by William Penn while he was still in England, and was repudiated by Pennsylvania's Colonial Assembly. In the preface, Penn stated his political philosophy on government: "Any government is free to the people under it ... where the laws rule and the people are a party to those laws."
The provision for amending the Frame of Government, Section XXIII, states, "No act ... to alter, change, or diminish the form, or effect, of the charter ... without the consent of the governor, his heirs, or assigns, and six parts of seven of the said freemen in provincial Council and General Assembly." Changes appeared in the second Frame of Government, also written by Penn. This was approved by the colony's bicameral General Assembly in 1683 and became the colony's constitution.
In 1696, the colony received its third Frame of Government. This constitution was written by William Markham, the proprietor's deputy governor and Penn's cousin. This version, known as Markham's Frame, was regarded as the constitution until Penn came back to Pennsylvania in December 1699. Penn signed the fourth Frame of Government in October 1701 when he left Pennsylvania for England, where he died in 1718. This last frame, also known as the Charter of Privileges, was drafted for the first time in conjunction with members of the Provincial Assembly.
The Assembly by this time had power to make its own rules and initiate all legislation. The constitution continued to evolve, following the English tradition of permitting constitutional changes to occur through the ordinary legislative process. It was the basic constitution for the next 75 years and it virtually ended proprietary rule by giving self-government to Pennsylvania.
In 1751, the Assembly ordered a bell to commemorate the 50th anniversary of the Charter of Privileges. The bell was inscribed with the words "Proclaim liberty throughout the land unto all the inhabitants thereof." This bell cracked on first ringing, was recast twice, and today it is known as the Liberty Bell.
As the colony grew in population and wealth, disputes arose over the respective powers of the elective Provincial Assembly and the appointed Provincial Governor. Divisions were developing between the established eastern city interest and the expanding western frontier, between the farmer and the city dweller, between the working man and the capitalist, and between the settler and the land speculator.
As a result of general dissatisfaction with the proprietary government, there were petitions to make Pennsylvania a royal province, while other more radical elements urged the drafting of a new constitution and called for independence from England. The first Continental Congress was a turning point for most citizens who had expected the Congress to propose a new relationship between England and the colonies. Instead, the second Constitutional Congress on May 15, 1776, passed a resolution urging all colonies to draft and adopt constitutions.
The elected delegates debated, drafted, and on Sept. 28, 1776, passed and proclaimed the Bill of Rights and Constitution of the Commonwealth of Pennsylvania signed by "Benj. Franklin, Prest." The Constitution of 1776 provided that the power of amending the constitution would rest with a Council of Censors as it found necessary. The Constitution of 1776 was considered one of the most democratic state governmental structures of the times, even though it was not submitted to the electorate for ratification or adoption.
In March of 1789, the General Assembly passed a resolution submitting to the people the question of calling a convention to draft a new Constitution. The General Assembly provided by statute for the election of delegates to a constitutional convention and gave the people a chance to examine the changes and make their will known to the elected delegates. The new Constitution went into effect on Sept. 2, 1790; but the electorate had not voted on the calling of the convention or the adoption of its drafts.
While the Constitution of 1776 reflected the radical revolutionary reality of the day, the Constitution of 1790 represented the political thinking of the conservatives who began gaining control of the government after the Revolution.
Instead of boycotting the government, as many had done right after the Revolution, they resolved to work within the constitution for its amendment. The ensuing struggle for constitutional amendment was centered on the exclusive powers given the Council of Censors.
By 1810 popular petitions for constitutional revision flooded the legislature, but the legislature did not respond. In 1812, resolutions continued to be introduced for a constitutional convention but the resolutions failed. The movement for revision continued until 1835 when by an act, the qualified electors were permitted to vote at the next general election "for or against" calling a constitutional convention. In 1836, an act provided that the draft of the new provisions would be submitted to the electorate for approval or rejection.
In 1837, a convention was called to revise the state's laws and during the long period of revision, one of the primary objects of criticism had been the broad appointive powers of the governor. The resulting Constitution of 1838 introduced many reforms. One of the more important provisions allowed for the amending of the constitution without the necessity of calling a convention. Passage of a proposed amendment by two successive legislatures and its ratification by the electorate was all that was required.
The Pennsylvania Constitution of 1874 is the longest and the most detailed under which the commonwealth has been governed, but it did not change the procedure for amending the constitution. The need for constitutional reform was felt widely, but referendum questions on a new constitutional convention were defeated for the next 75 years.
The 1935 Constitutional Revision Commission headed by William A. Schnader was defeated by referendum in 1953. A new commission appointed in 1957, and headed by Superior Court Judge Robert E. Woodside, did not take the convention route, but instead drafted amendments. These amendments were applauded everywhere except in the legislature where they were all either defeated or ignored.
Project Constitution Schnader also tried the amendment route, and in 1961 persuaded the Pennsylvania Bar Association to create "Project Constitution" which drafted a proposed new constitution. This new constitution was a composite of existing language, most of the Woodside Commission proposals, bits and pieces borrowed from other states, and also some new ideas. It was the first time that any state had attempted to revise its entire constitution.
Also in 1961, the Committee for State Constitutional Revision led by Milton J. Shapp got underway and in 1963 forced the legislature to call for a referendum on a constitutional convention. The referendum failed, but Schnader immediately proposed a new Constitutional Revision Commission to study the bar association's proposals, and early in 1964 these were transmitted through the governor to the legislature as draft amendments.
A newly formed citizen's organization, A Modern Constitution for Pennsylvania Inc., contributed much to this effort, even though some of the "Project Constitution" amendments had already been approved by the legislature. The 1967 legislature gave priority to constitutional revision and passed a convention enabling bill as well as the amendments awaiting second passage.
The convention considered all the bar association's proposals. On April 23, 1968, the electorate of Pennsylvania approved the constitutional revisions, and the 94-year-old constitution was modernized. But the Constitution of 1968 did not change the amending process, even though no part of the 1874 Constitution escaped some kind of rewriting or rearrangement.
Today, the power to amend rests primarily with the General Assembly, as the governor's participation is no longer allowed, and the electorate has the power to approve or disapprove. However, there are Pennsylvanians who believe that this power to amend should rest exclusively with the electorate.
This sentiment is reflected by several joint resolutions that have been introduced in both the Pennsylvania House and Senate in the 1999-2000 legislative session, proposing an amendment to the commonwealth's constitution, authorizing the use of initiative and referendum as powers reserved to the people.
Similar bills for initiative have been introduced annually since the Constitutional Convention of 1968. Over the last 300 years, Pennsylvania's electorate has slowly gained power to amend its constitution, and this pace will most likely continue, as evidenced by the bills for initiative and referendum currently awaiting action by the legislature.
23 Pennsylvania Law Weekly 324 (March 27, 2000)
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