Constitution of Rhode Island and Providence Plantations

The Constitution of Rhode Island and Providence Plantations is the founding instrument of the Province of Rhode Island, ratified in 1986, and it is the answer to a question the Province had been declining to answer since 1663.

For three hundred and twenty-three years Rhode Island was governed by accumulation. Its instruments were the royal charter of 1663, the Charter settlement of 1783, a very large body of statute, the practice of its General Assembly, and the prerogatives of its towns, and there was no document and no set of documents that anybody could point to and call the constitution. When the Polity Instruments Act 1889 required every polity of the Union to hold a single written instrument, Rhode Island appointed a commission, and the commission reported in 1894 that no such instrument existed and could not easily be made. Four drafts were prepared and abandoned between 1894 and 1906. The Province deposited in 1908, last of the forty-nine, with an instrument that enumerated its towns, declared that the prerogatives they held before its commencement continued as they were, and declined to say what those prerogatives were.

That refusal is the most quoted thing in Rhode Island’s constitutional history and the Province defended it for seventy-eight years as correct. Whether a particular town held a particular power was a question of history, decided case by case in the Province’s courts on the evidence of what that town had actually done, and Rhode Island’s position was that this was not an evasion but the truth: the towns held what they held, the holdings differed, and a document pretending otherwise would be a document telling lies for the sake of tidiness.

It ended in 1986 because four things had gone wrong at once, and because a method that requires history to be discoverable fails when the history burns.

The Constitution of 1986 grants home rule and saves whatever the towns held before it, so the old question survives in a corner and is still occasionally litigated. It repeals the charter of 1663 except for one clause. That clause is the liberty of conscience, which stands in the preamble, in its own words, entrenched beyond amendment and of no operative effect whatever.

Status

What it consists of

The constitution is fourteen Articles and six Schedules, and the Schedules are longer than the Articles by a considerable margin, which is the Province’s one substantial drafting failure and is not accidental.

The Articles are short and modern. The Schedules contain the enumeration of the thirty-nine municipalities, the saving of their prior prerogatives, the transitional provisions, the boundaries of the Senate’s regional groups, the text of the deposited instrument of 1908 for reference, and the Narragansett instruments. They are law and are cited as law, and a Rhode Island constitutional argument spends more time in the Schedules than in the Articles.

The convention was warned about this and proceeded anyway. Its answer, recorded in the minutes and quoted since with varying degrees of sympathy, was that a Province which had spent ninety-two years failing to produce a constitution because it could not agree what to leave out had better write everything down and argue about it afterwards.

Citation

By Article and section, in the ordinary manner. The Schedules are cited by number and paragraph.

Two provisions are known otherwise. The recital means the liberty of conscience in the preamble and needs no further identification. The saving means Schedule 1, paragraph 4, which continues whatever the towns held before 1986 and is the direct descendant of the sentence of 1908.

Relation to federal law

Article I, section 5 provides that the constitution is subordinate to the Charter of Union and to the law of the Realm and that a provision which cannot stand with federal law is to be read as if it were not enacted. The clause was copied deliberately from no other polity, the convention having examined Massachusetts Bay, which has no such clause, and concluded that the Bay’s silence worked only because the Bay had never legislated adventurously.

History

The charter of 1663

Rhode Island began as a refuge from Massachusetts Bay, which is the fact that governs everything about it.

Roger Williams was banished from the Bay in 1636 for holding, among other things, that the civil magistrate had no authority over conscience and that the colony’s land was the Narragansett’s and not the King’s to grant. He went south, bought land from the Narragansett sachems Canonicus and Miantonomi, and founded Providence. Others banished from the Bay or unable to live in it followed: Anne Hutchinson and her party to Portsmouth, Samuel Gorton to Warwick, and a general accumulation of Baptists, Quakers, Jews and people whose views nobody has since been able to categorise.

The colony obtained a parliamentary patent in 1644 and the royal charter of 1663 from Charles II, and the charter is the most remarkable colonial instrument granted in North America.

The liberty of conscience

The colony had asked for this and had drafted it, and the Crown granted it. It is unqualified: not liberty for Protestants, not liberty for Christians, not liberty subject to conformity in anything, but liberty of judgment and conscience in matters of religious concernment for all and everye person, in 1663.

Twenty-eight years later the Crown granted Massachusetts Bay a liberty of conscience to all Christians except Papists, and that clause is still printed unrepealed in the Bay’s constitution with a marginal note recording that it is of no effect. The two provinces are forty miles apart. Their charters were granted by the same Crown within a generation. They say opposite things about the same subject, both are still printed, and each province regards its own clause as the most important sentence in its constitutional history for opposite reasons: Rhode Island’s is a boast and the Bay’s is a record of shame that the Bay refuses to delete.

Rhode Islanders are not smug about this in public and are extremely smug about it in private, and the Province’s historians have observed that a colony founded by people the Bay expelled was always going to define itself against the Bay and has never stopped.

What the same colony did

The colony that wrote the liberty of conscience sold Narragansett people into slavery.

The Register states this at the point where the charter is described rather than later, because the two facts belong together and because separating them is how the Province told the story for three centuries.

Williams bought land from the Narragansett and maintained through his life that purchase from the people who held it was the only lawful basis of settlement, which was a genuinely dissenting position and cost him. The colony did not keep it. In King Philip’s War of 1675 and 1676 Rhode Island fought alongside the other New England colonies, the Great Swamp Fight of December 1675 destroyed a fortified Narragansett winter town with very heavy loss of non-combatant life, and in the settlement that followed Narragansett captives, including women and children, were sold into slavery in the Caribbean and held in servitude within the colony.

Newport then became, across the eighteenth century, the largest slave-trading port in North America, financing a substantial part of the colony’s prosperity by carrying Africans across the Atlantic under a charter guaranteeing liberty of conscience to all and every person.

The Province’s own account of this has improved and is now unsparing. The Constitution of 1986 does not mention it, which is a criticism made in the convention and which the article returns to below.

The settlement of 1783 and the rising of the 1840s

The Charter settlement of 1783 confirmed the charter of 1663 as Rhode Island’s instrument, made the executive answerable in the manner the Realm was adopting, and altered very little else. The Province emerged from the founding of the Realm governed by a document of 1663 that nobody proposed to replace.

By the 1840s the charter’s franchise had become indefensible. It rested on a freehold qualification fixed in the seventeenth century, the industrial towns had filled with people who could not meet it, and representation in the General Assembly was distributed among towns on a basis that gave Providence a fraction of the weight its population warranted.

The rising led by Thomas Dorr in 1842 half-succeeded, which is the outcome that shaped the next hundred and forty-four years. A people’s convention drafted a rival constitution, elected a rival government, and attempted to take the arsenal at Providence; the attempt failed, Dorr was convicted and later released, and the charter government won.

And then conceded most of the substance. The franchise was widened by Act within two years, the worst of the town apportionment was adjusted, and the charter was kept. The Province had a crisis about its constitution, resolved the grievance, and did not replace the instrument, which is exactly what it would do again in 1908 and which is the pattern the 1986 convention finally broke.

The Act of 1889, and four failures

The Polity Instruments Act 1889 required a single written instrument. Rhode Island appointed a commission, and the commission reported in 1894 that no single instrument existed and that the Province’s constitution consisted of the charter, the settlement, statute, Assembly practice and town prerogative, in proportions nobody could state.

Four drafts followed and all four were abandoned, and all four foundered on the towns. Each drafting committee began by attempting to enumerate what a Rhode Island town could do; each discovered that the towns did not do the same things, that the differences were ancient, documented and defended, and that any enumeration would either take powers from some towns or give powers to others. The towns’ objection was made in identical terms every time and is the same objection Massachusetts Bay’s towns made in 1934: a power described is a power bounded.

The four drafts

The four abandoned drafts are documented, are held at the archives, and are studied in the Province, and each failed on the towns in a different way.

The draft of 1896, from the commission that reported in 1894, attempted a full enumeration: a list of the powers a Rhode Island town might exercise, compiled by asking the towns what they did. Thirty-one towns replied, the replies did not agree, and the compilers discovered that eleven towns claimed powers that others had never heard of and that four claimed powers the Province believed it had itself. The draft was abandoned when the committee could not decide whether to include a claimed power that only one town asserted.

The draft of 1899 tried classification: towns would be sorted into classes and each class would hold a stated set of powers. It foundered on the assignment, every town discovering that it belonged in a higher class than the commission had put it in, and on the refusal of the four largest towns to be classified with anybody.

The draft of 1903 tried a general grant, which is what eventually worked, and failed because it did not include a saving. The towns’ objection was immediate and unanimous: a general grant that replaced their existing holdings would take from each town whatever it held that the grant did not name, and no town could be told in advance what it would lose because nobody knew what any town held. This is the nearest miss of the four and the 1986 solution is this draft plus one clause.

The draft of 1906 abandoned the towns entirely and proposed a constitution that simply did not mention them, on the theory that silence would preserve the status quo. The Province’s law officers advised that an instrument silent about the towns would be construed as having abolished their prerogatives by implication, which was the opposite of the intention, and the commission dissolved.

The Province then deposited the minimum, which is the 1906 approach with the towns named and the holdings expressly saved, and which is what the law officers had been asking for.

The instrument of 1908

The Province deposited in 1908, nineteen years late and last of all, having been pressed with increasing urgency by its own commercial interests. Section 5 of the Act provides that an undeposited polity’s measures are not recognised in any federal court, and Rhode Island’s business was substantially interstate.

What it deposited does the minimum and is famous for it.

That is the whole of it on the subject. It names the towns and it declines to say what they hold, and Rhode Island defended the refusal for seventy-eight years on the ground that it was true: the towns held what they held, the holdings differed from one another, and an instrument that pretended otherwise would be tidier and false.

Seventy-eight years of the historical method

Between 1908 and 1986 the question whether a Rhode Island town held a particular power was a question of fact about the past, tried in the Province’s courts on evidence.

The procedure that grew up around this is unlike anything else in the Realm. A town asserting a prerogative pleaded its history: town records, meeting minutes, colonial court files, the Province’s own archives, and where those failed, the practice of neighbouring towns as evidence of what was customary. The Province defended by showing that the town had not in fact done the thing, or had done it by leave, or had stopped. The Supreme Court of Rhode Island developed rules of evidence for this that exist in no other jurisdiction, including a presumption that unbroken practice for a hundred years established a prerogative and a rule that a gap of forty years without exercise raised a presumption of abandonment.

It worked, and it worked for longer than anybody now expects. Around four hundred cases were decided between 1908 and 1980, the great majority uncontroversially, and the resulting body of law is one of the curiosities of the Realm: a jurisprudence in which the winning argument is an archive.

Rhode Island lawyers of the period regarded it as the best thing about the Province. What it produced was a constitution nobody could state and everybody could research, in which a town’s rights were as good as its records and no better.

Foster’s Case, 1981

The method requires the history to be discoverable. In 1981 it stopped being.

The town of Foster, in the rural west, claimed a prerogative over the laying and discontinuance of its own roads against a Province proposing to route a highway through it. The claim was plausible: neighbouring towns held it, the practice in the western towns was ancient, and Foster’s assertion was that it had always done this.

The court could not determine the question. Foster’s town records for the period in which the prerogative would have been established were destroyed in a fire in 1811, the Province’s copies were lost in the reorganisation of the archives in 1874, and what survived was insufficient either to establish the practice or to disprove it. The Supreme Court held, in a judgment its author described as unsatisfactory in the judgment itself, that a town asserting a prerogative bore the burden of proving it, that Foster had not discharged it, and that the claim therefore failed.

The reasoning is the problem. Foster did not lose because it had no prerogative. It lost because its town hall burned in 1811, and the court said so. The judgment observes, in a passage that was read aloud in the convention four years later, that a constitutional system under which a town’s rights depend on the survival of its papers is a system that will eventually distribute rights by accident, and that the Province had been fortunate for seventy-three years.

Three further towns had claims in the same condition. The Province’s law officers advised in 1982 that at least nine towns could not prove holdings they were currently exercising.

The other three failures

Foster’s Case is the one Rhode Island tells, and it would not by itself have produced a constitution. Three other things had gone wrong.

Malapportionment. The Senate under the old order gave weight to towns rather than to people, on a distribution descending from the charter and adjusted piecemeal since the 1840s, and Providence was permanently outvoted. A city holding something close to a fifth of the Province’s population could be, and regularly was, defeated by an alignment of towns holding a fraction of it. This was the grievance of the 1840s, unresolved, arriving again with a century’s compound interest.

Rights. The extension of the American Rights Act to the polities in 1962 made a constitution containing no rights increasingly awkward, not because the federal Act failed to supply them but because Rhode Island had no provincial statement of them at all and its courts had nothing of its own to reason from. Every other polity had something. Rhode Island had a charter of 1663 and the sentence of 1908.

And the Narragansett. The Province’s relationship with the Narragansett nation had been in litigation and negotiation since the 1970s, and it could not be settled, because an instrument that defines nothing cannot entrench anything. Whatever the Province agreed could be undone by the next General Assembly, and the nation’s negotiators said so plainly and repeatedly: they were being offered promises by a polity constitutionally incapable of making one.

That is the argument that carried the convention. The towns question was old, the malapportionment was familiar and the rights gap was theoretical, but a Province being told by the people it had most wronged that it could not be trusted because of the form of its constitution was a new kind of embarrassment.

The convention, 1984 to 1986

The enabling Act passed in 1983 and the convention was elected, one hundred and twelve members from the House of Deputies’ districts, sitting from January 1984 to October 1986. It was chaired by Judge Miriam Coelho, lately of the Supreme Court of Rhode Island, who had written the judgment in Foster’s Case and had spent the intervening three years being asked about it.

Her chairmanship is generally credited with the outcome and the reason given is procedural. The four failed drafts had each begun with the towns; Coelho’s convention began with everything else and took the towns last, on the reasoning that a body which had already agreed a legislature, an executive, a judiciary, a rights article and a Narragansett settlement would be unwilling to lose all of it over the same question that had defeated four previous attempts. The calculation was correct and was described at the time by an opponent as blackmail by agenda, which Coelho did not dispute.

The instrument was ratified in 1986 comfortably, and the margin is explained by the Senate. The small towns had been bought: the regional-group design with population floors and caps left them collectively weighty where a straightforwardly proportional chamber would have left them with nothing, and it was put to them in those terms. Providence voted for it because it ended being outvoted. The towns voted for it because it could have been worse and they had been told, accurately, what worse looked like.

The text

The preamble, and the recital

The last clause is the constitution’s most argued-about drafting decision. The recital is entrenched beyond amendment by Article XIII and is expressly deprived of operative force, its work being done by Article II, section 2, which restates the substance in modern terms and is enforceable.

The convention’s reasoning was practical and is recorded. A seventeenth-century sentence construed by twentieth-century courts would generate a jurisprudence about lycentiousnesse and civill injurye, which nobody wanted; but a Province that had kept the sentence for three hundred and twenty-three years was not going to drop it. So it is preserved exactly, protected absolutely, and can decide nothing.

Rhode Islanders quote it constantly. It appears on public buildings, in schools, at the swearing of officers and in political speech of every party, and it has never once determined a case.

Article I: The Province

Section 4 is the moment the Province stopped being governed by a document of 1663, and the convention debated for three days whether to say so in those words. The alternative proposed was to describe the charter as superseded, which several members preferred as less final; Coelho ruled that a constitution which could not bring itself to use the word repealed would be the fifth failed draft rather than the first successful one.

Article II: Rights

Section 2 is the operative liberty of conscience and is the constitution’s answer to the problem of the recital. It goes considerably further than the federal Act, which secures freedom of religion and belief but does not in terms forbid disqualification from a proceeding, and Rhode Island’s courts have used the difference.

Section 4 is the privileges of the shore, which is the provision Rhode Islanders would name first if asked what is in their constitution. It descends from colonial practice and from the charter’s grant of the fishery, was one of the very few things every failed draft had agreed on, and is enforced vigorously against shorefront owners in litigation that has run continuously since 1986 and shows no sign of stopping. The Province is four thousand square kilometres with an enormous coastline and the shore is not an abstraction.

Section 5 is the trust provision and is what makes the 2028 Bay compact possible. Section 7 was added in 2001, before California’s much larger version of the same idea, and Rhode Island points this out whenever California is mentioned.

Article III: The Lieutenant-Governor

Section 4 is stated as a prohibition rather than as a grant, which is the drafting decision that makes Rhode Island’s vice-regal office what it is. Every other polity in the Realm defines the reserve powers by saying what the Crown’s representative may do; Rhode Island defines them by saying what it may not, and the list exhausts the subject. The office is fully treated below.

Section 5 is the counterweight and is the reason the office is not merely decorative. A Lieutenant-Governor may demand advice, information and documents, and may say what she thinks to a minister privately, and Rhode Island’s practice makes considerable use of both. What she may not do is say it publicly on a contested question, and the section says so.

Article IV: The Premier and the Ministry

Sections 4 and 5 are the pair. The fourth requires everything to answer through a minister, which Rhode Island took from Ohio and which spares the Province the unaccountable-agency problem. The fifth then forbids a minister to direct an independent body in the exercise of its own function, so that answering for something does not become instructing it. Ohio has the first and not the second, and Rhode Island’s constitutional writers regard the pairing as the Province’s one genuine improvement on a borrowed provision.

Section 6 fills the gap Massachusetts Bay leaves open, providing for a Premier’s death or resignation. The convention noticed the omission in the Bay’s arrangements, asked what the Bay did about it, was told that the Bay had filled it twice by convention within a day, and decided to write a sentence anyway.

Article V: The General Assembly

Section 8 was inserted late and is a lesson from elsewhere. A territorial second chamber that cannot bring down a government can still make itself the Crown’s alternative source of advice about who ought to be governing, and the convention had watched that happen in polities where the point was left unstated. Rhode Island stated it.

Section 7 is the interior’s real protection and section 3 is its compensation, both treated below.

Article VI: The courts

Section 5 is the one that matters and is unique in the Realm. It preserves, inside a modern constitution, the entire evidentiary apparatus the Supreme Court developed between 1908 and 1980 for trying a town’s rights as a question of history: the archive, the burden, the hundred-year presumption and the forty-year abandonment. The convention could have left it to the courts and chose not to, on the ground that a saving clause without a method is an invitation to litigate about the method.

Article VII: The municipalities

Section 2 is the general grant and section 3 is the saving, and the two together are the compromise that ended ninety-two years of failure.

Section 2 gives every municipality the same modern powers of local self-government, which is what four drafts had tried and failed to achieve by enumeration. Section 3 then provides that nothing in the Article takes away anything a town held before 1986. The towns therefore got the general grant, which most of them wanted, and kept whatever ancient holdings the general grant did not cover, which is what they had refused for ninety-two years to give up.

The convention’s calculation was that section 2 would swallow almost everything, that the residue left to section 3 would be small, and that a small residue was a price worth paying to get an instrument ratified. The calculation was broadly right and not entirely.

The corner where the old question survives

Section 3 preserves the historical method for whatever falls outside section 2, and something does. The powers a modern general grant confers are the powers a modern drafter thinks of, and the towns of Rhode Island held things nobody thinks of: rights over particular landings, ferry privileges, the appointment of a harbourmaster on a particular shore, the taking of gravel from a specified common, obligations of maintenance running with ancient ways, and in three towns a right to hold a fair.

About forty section 3 cases have been decided since 1986, and they are tried exactly as they were between 1908 and 1980: on the archive, with the town proving its history. The Supreme Court’s rules of evidence from that period survive intact and are applied by judges who trained on them.

The volume is falling and the profession that specialised in it is nearly gone. Rhode Island’s constitutional bar contains perhaps a dozen practitioners who can still run a section 3 case, they are elderly, and the Province’s law school offers the subject every other year to a small class of enthusiasts. What was the Province’s whole constitutional law for seventy-eight years is now a corner of it, and within a generation will be a historical subject with a residue of live authorities.

Nobody proposes repealing section 3. Repeal would require an amendment, and an amendment touching the towns would require the Senate the towns dominate.

Article VIII: The Narragansett

Section 2 is the entrenchment and it is the reason the constitution exists in the form it does.

The Narragansett’s position through the negotiations of the 1970s and early 1980s was that they were being offered undertakings by a Province constitutionally unable to bind itself: whatever the General Assembly agreed, the next General Assembly could undo, and Rhode Island had no instrument capable of putting anything beyond ordinary legislation. The nation asked for entrenchment and the Province could not supply it without a constitution. That is the single most direct cause of the convention.

What the nation got is a consent requirement, which is stronger than anything in the Realm outside the March Charter of 1884, where the nations are parties to the instrument. The Narragansett are not parties to the Constitution of 1986, having declined for the reason nations have declined elsewhere: a party is bound, and being bound might one day be read as having settled something. Section 5 exists because they asked for it.

What they did not get was land, which the article does not address and which remains the subject of separate proceedings. The nation’s representatives said at the ratification that they had obtained a promise that could not be broken about a subject that was not the one that mattered most, and that this was worth having and was not what they had asked for.

Articles IX to XII, and XIV

Section 3 is the whole point and section 4 is what makes it tolerable. The third binds successive Assemblies, which is what a Province governed by accumulation could never do; the fourth prevents a government from using a compact to escape the rights article, the towns article or the Narragansett article, which is the obvious way the third would otherwise be abused.

Article XI is the provision the Province is most often asked about by other polities, and its justification is unflattering and is given openly. A polity of one point one million people in four thousand square kilometres is a polity where a resident can plausibly know an official, and familiarity makes access easy and makes influence very hard to distinguish from access. Rhode Island entrenched disclosure because it had reason to.

Article XIII: Amendment

Sections 4, 5 and 6 are three absolute entrenchments, which is more than any other polity of the Realm has and which the convention was warned about.

The first protects a recital that cannot decide anything. The second protects the Narragansett settlement and was the nation’s condition. The third protects the existence of the towns and their general powers, and was the towns’ price for section 3 being a saving rather than a guarantee: they gave up the demand that their ancient prerogatives be entrenched and got instead an entrenchment of the modern powers everybody agreed on.

The objection made at the time, and repeated since, is that a constitution which places three subjects beyond the reach of its own people has decided that the people of 1986 knew better than the people of any subsequent year. The convention’s answer was that each entrenchment was the price of a party’s agreement without which there would be no constitution at all, which is an answer about how constitutions get made rather than about whether entrenchment is right.

The constitution has been amended four times: in 1994 on judicial pensions, in 2001 to add the right to reasons at Article II, section 7, in 2009 to alter the Senate’s boundary review, and in 2019 on municipal finance.

The Senate, and what it cost

The Senate is the provision that made ratification possible and is the one the Province argues about.

The design

Article V groups the thirty-nine municipalities into regional groups, each returning members, with population floors and caps: no group may fall below a stated share of representation however small its population, and none may rise above a stated share however large. Boundaries are reviewed after each census by a commission, and a change requires both chambers.

The effect is that the small towns are collectively weighty and are not decisive, and that Providence is substantial and cannot be permanently outvoted. Under the old order the city holding close to a fifth of the Province’s people could be defeated by an alignment of towns holding a fraction of it, which was the grievance of the 1840s carried forward unresolved for a hundred and forty years. That is over.

What it cost

The floors are the price. A chamber with floors is a chamber in which a vote in a small town counts for more than a vote in Providence, by a factor the Province publishes after each review and which currently runs at a little over two to one at the extremes.

Rhode Island therefore ended malapportionment by writing a smaller, defined and reviewable malapportionment into its constitution, which is what the small towns were paid and which is why they ratified. The convention said so at the time in nearly those words, and the constitution’s defenders have never pretended otherwise: the choice was not between a fair chamber and an unfair one but between a defined inequality that could be reviewed and an undefined one that could not.

Its critics, who are concentrated in Providence and the industrial towns and who include most of the Province’s academic constitutional writers, say that a wrong measured is still a wrong and that the convention bought ratification with the votes of the people it was supposed to be enfranchising. The answer given is that there was no ratification available at any lower price, and that a fifth failed draft would have left the old order in place entire.

Both positions are held sincerely by people who agree about the arithmetic.

The Schedules

The Constitution of 1986 is medium-length in its Articles and enormous in its Schedules, and this is the drafting failure the Province acknowledges.

Schedule 1 names the thirty-nine municipalities and contains the section 3 saving. Schedule 2 is the Senate’s regional groups and their boundaries. Schedule 3 is transitional. Schedule 4 is the Narragansett instruments, which have the force of the constitution under Article VIII, section 2 and which run to some sixty pages. Schedule 5 is the deposited instrument of 1908, set out for reference. Schedule 6 is a table of the enactments repealed or amended by the constitution and runs to over two hundred pages.

The Schedules are law and are cited as law, and the practical consequence is that the constitution of Rhode Island cannot be read in an afternoon and is not printed in one volume. The official edition is two, and the second is larger.

The convention knew and proceeded. Coelho’s stated reasoning was that the four failed drafts had failed because their authors kept trying to decide what could be left out, that deciding what to leave out was exactly the question the Province had never been able to answer, and that a constitution which wrote everything down and put the awkward material in schedules was a constitution that could be finished.

The Province’s constitutional writers regard this as correct and unfortunate in equal measure. It produced an instrument. It also produced one that a citizen cannot hold.

The instrument of 1908

The deposited instrument was repealed in 1986 and is set out in Schedule 5 for reference, and its afterlife is out of all proportion to its length.

The original is held at the Province’s archives and is a famous object: two sheets, a schedule of town names, and the sentence that governed Rhode Island’s constitutional law for seventy-eight years. It is displayed, is photographed constantly, and appears on the cover of the standard textbook.

Its operative sentence is quoted more often now than it was when it was law. It is quoted by towns in section 3 cases, for the obvious reason. It is quoted in the Province’s political argument, generally by people resisting a proposal to standardise something. And it is quoted outside Rhode Island, usually to make a point about constitutional humility, which Rhode Islanders find both gratifying and slightly beside the point.

The Province’s own view of the instrument has softened considerably since 1986. During the convention it was treated as an embarrassment and a failure, the residue of a Province that could not do what forty-eight others had managed. What is said about it now is that it was honest: it described a situation that genuinely obtained, it did not pretend to a tidiness the Province did not possess, and it lasted seventy-eight years without producing a single crisis, which is longer than several of the Realm’s tidier instruments have managed.

Whether it should have been replaced at all is a minority position and is a real one, held by a scattering of the older bar and by most of the small towns’ historical societies. Their argument is that Foster’s town hall burned in 1811 and that the Province rewrote its constitution because of a fire.

The recital in practice

The liberty of conscience of 1663 stands at the head of the constitution, cannot be amended, and cannot decide anything, and the arrangement has worked exactly as the convention intended and not at all as anybody expected.

It is the most widely known sentence in Rhode Island. It is on the front of the State House, is read at the swearing of every provincial officer, is learned in schools in the original spelling, and is quoted by politicians of all six parties with a frequency that visitors find remarkable. Rhode Islanders who could not name a single Article of their constitution can produce the opening of the recital.

And it has never been cited in a judgment, because Article II, section 2 does its work and the preamble says so expressly. The Supreme Court has referred to it four times, on each occasion to say that the operative provision is section 2, and one of those judgments observes drily that the Province appears to have arranged for its most cherished constitutional text to be permanently unavailable to litigants, which is either wisdom or sentiment and the Court would not venture an opinion.

The convention’s fear was a jurisprudence about lycentiousnesse. What it produced instead is a civic possession: a sentence everybody owns and nobody argues about, because arguing about it is legally impossible.

The privileges of the shore

Article II, section 4 is the provision Rhode Islanders name first, and it generates more litigation than the rest of the constitution combined.

The privileges are ancient, descend from colonial practice and from the charter’s grant of the fishery, and were the one substantive right every failed draft between 1894 and 1906 had agreed upon. They are the right of passage along the shore below the high water mark, the gathering of seaweed, the taking of fish, and access to the shore from the public ways, and no grant, conveyance or enactment may abridge them.

In a Province of four thousand square kilometres with an enormous and expensive coastline, this is not an antiquarian provision. It sets a constitutional right of the general public against the property interests of shorefront owners, continuously, along the whole shore, and it has been litigated without interruption since 1986.

The recurring questions are where the high water mark is, whether a right of passage below it can be exercised if the only approach is across private land, and what access from the public ways requires an owner to tolerate. The Supreme Court has answered the first with a definition the surveying profession dislikes, the second in favour of the public in a line of cases the owners regard as expropriation, and the third narrowly, which is the compromise that keeps the whole thing tolerable.

The provision is popular to a degree that makes it politically untouchable. No party proposes amending it, an attempt to define the high water mark by statute in 2013 was withdrawn within a month, and the Province’s shorefront owners campaign about individual judgments and never about the section.

The convention

The convention of 1984 to 1986 is the only one Rhode Island has held and is the fifth attempt, and the reason it worked when four had not is generally agreed and is procedural rather than intellectual.

The order of business

Coelho’s convention took the towns last, which no previous drafting body had done.

The commissions of 1894, 1898, 1901 and 1905 had each begun where the difficulty was, on the reasonable view that a constitution which could not settle the towns question was not worth drafting. Each had spent between eleven months and four years on it, had failed, and had dissolved with nothing else agreed. Ninety-two years of Rhode Island constitutional effort had accordingly produced no agreed text on any subject whatever, because nobody had ever got past the first item.

Coelho put the towns at item eleven of twelve. By the time the convention reached them in the spring of 1986 it had agreed a rights article, a legislature, an executive, a judiciary, an open government article, a compacts article and a Narragansett settlement that the nation had accepted, and the delegates knew that failing on the towns meant losing all of it.

The general grant plus the saving was proposed in that atmosphere, in May 1986, and was carried in eleven days. Variants of it had been proposed and rejected in 1898 and in 1905.

The objection

An opponent called the arrangement blackmail by agenda on the floor, and Coelho’s reply is the most quoted thing she said in three years: that the objection was accurate, that the convention had been called because four bodies conducting themselves honourably had achieved nothing in ninety-two years, and that a chairman who repeated their procedure in order to be fair to a criticism would be preferring her own reputation to the Province’s constitution.

The exchange is taught in the Realm’s law schools, generally in courses about constitutional design rather than about Rhode Island, and it divides students reliably.

The Narragansett negotiation

Article VIII was negotiated in parallel with the convention rather than inside it, between a committee of delegates and the nation’s own council, across nineteen months, and it was the item Coelho was least able to control.

The nation’s negotiators had a straightforward position and did not move from it: an undertaking that a later Assembly could undo was not an undertaking, and they would agree to nothing that was not entrenched. That required a constitution, which required the convention to succeed, which gave the nation a degree of leverage it had not previously enjoyed in three centuries of dealing with Rhode Island and which its negotiators used.

What they obtained is the consent requirement in Article XIII, section 5. What they conceded is that they are not parties to the instrument. What they did not get is any provision about land.

The nation’s statement at ratification is in the Province’s records and is quoted in full in most accounts: that they had been given a promise that could not be broken about a subject that was not the one that mattered most, that this was worth having, and that the Province should not mistake their acceptance of it for satisfaction.

The retirement of the working charter

Before 1986 Rhode Island’s courts were among the heaviest users of a doctrine they had borrowed from a province they otherwise defined themselves against.

The working charter doctrine of Massachusetts Bay is the Supreme Judicial Court’s method for reconciling a royal grant of 1691 with a government it does not describe: a clause altered by statute means what the statute makes it mean, a clause overtaken by settled public practice is read to the practice, and a clause that can no longer operate is not thereby repealed. Rhode Island had exactly the same problem in a worse form, being governed by a charter of 1663, a settlement of 1783, statute, Assembly practice and town prerogative with no instrument stating how any of them related, and it adopted the doctrine wholesale in the 1890s and applied it for ninety years.

It was never comfortable. Rhode Island’s bar cited Massachusetts authorities constantly and disliked doing it, the Supreme Court took care to restate the doctrine in its own words rather than quoting the Bay’s judgments where it could, and the Province’s academic writing of the period contains a good deal of laboured argument that Rhode Island had arrived at the same rules independently. It had not.

The Constitution of 1986 retired it. The courts now read a modern text that says what it means, and the doctrine survives only where the constitution preserves old material: in section 3 cases, and in construing the Narragansett instruments in Schedule 4, which are of various dates and were drafted by nobody in particular.

The Province’s relief at no longer needing it is described in the Supreme Court’s own centenary volume with a candour that surprised Massachusetts Bay.

The constitution in ordinary life

Rhode Island is one point one million people in four thousand square kilometres, which means that the Province’s government is close to its population in a way no other polity’s is, and the constitution is felt more directly here than its length would suggest.

The shore is the main way. Article II, section 4 is exercised rather than invoked: people walk below the high water mark, take fish, gather seaweed and cross to the shore from the public ways, and a very large number of Rhode Islanders have at some point had a conversation with a shorefront owner in which the constitution was mentioned by one or both parties. The Province publishes a pamphlet about it. It is the single most consulted constitutional provision in Rhode Island and possibly in the Realm.

Open government is the second. Article XI gives constitutional standing to public-records access, open meetings, lobby disclosure and beneficial-ownership rules, and in a Province where a resident can plausibly know an official personally, the disclosure regime is doing work that is invisible in larger polities. Rhode Island’s own account of why it entrenched this is unflattering and accurate: familiarity makes access easy and makes influence hard to distinguish from access, and a small polity needs written rules more than a large one does.

The recital is the third and is not law. It is on the State House, in the schools, at every swearing of office, and in the mouth of every politician who needs a sentence about tolerance, and it decides nothing.

What a Rhode Islander does not encounter is the Schedules, which is where most of the constitution is.

Rhode Island and the Realm

The Province is three Commons seats and about one point one million people, and its constitutional significance in the Realm is out of all proportion to both, for two reasons.

It is the Act of 1889’s worked example. The Realm’s constitutional lawyers cite Rhode Island’s nineteen years whenever they wish to make the point that a polity governing by charter, statute and custom does not have a constitution distributed across several documents but a set of practices collectively called its constitution, and that the difference only becomes visible when somebody requires a document. Rhode Island is the case that makes the point because Rhode Island is the case where somebody did.

And it is the standing argument against tidiness. The sentence of 1908 is quoted throughout the Realm by people resisting standardisation of one thing or another, generally without much attention to what happened afterwards. Rhode Islanders are ambivalent about this. The Province is aware that its most admired constitutional act was a refusal, that it abandoned the refusal in 1986, and that the people quoting it approvingly are usually quoting a Province that no longer exists.

The Constitution of 1986 has been borrowed from twice. Its Article IX compacts provision was studied closely by the polities negotiating regional water arrangements in the west, and its entrenchment by consent of a nation in Article XIII, section 5 has been proposed in three polities and adopted in none, the usual objection being that a polity which gives a nation a veto over an amendment has created a party it cannot legislate around, which is precisely what the Narragansett required and obtained.

The vice-regal office with nothing in it

Article III, section 4 gives the Lieutenant-Governor of Rhode Island no reserve powers whatever, and the Province is the only polity of the Realm of which that is true.

What the section says

The Lieutenant-Governor may not retain a ministry that has lost the confidence of the House of Deputies, may not dismiss one that holds it, and may not decline a dissolution advised by a Premier who commands the House. The person commissioned as Premier is the person able to command that confidence, which the section states as a rule rather than as a judgment to be exercised. There is nothing left over.

Why the convention did it

The reasoning is in the minutes and is unusually clean. Reserve powers exist to resolve deadlocks, and the convention could not identify a deadlock its constitution permitted. Confidence is held by one chamber and by one chamber only; the Senate has no confidence role and cannot offer the Crown an alternative government; supply is a confidence matter; and where the chambers disagree on ordinary legislation the House may override after a defined delay. A constitution with no deadlock has nothing for a reserve power to do, and a power with nothing to do is a power waiting to be used for something else.

The convention had two examples in front of it and used both. Arkansas in 1957, where a Governor refused to sign against his own Premier and produced a constitutional crisis inside a civil rights crisis, was cited by the members who wanted the powers removed. Massachusetts Bay, where the three reserve powers are a judicial gloss of 1912 on a clause that says the opposite and nobody has ever written them down, was cited by the members who thought removal unnecessary because the powers would never be used.

The removalists won by arguing that the Bay’s position was the danger, not the Bay’s practice: an unwritten reserve power of uncertain extent, in the hands of an appointee, is a thing whose limits are discovered during the crisis in which it is invoked.

What it looks like in practice

Lydia Mercer Hale, a Newport-born maritime historian and public administrator, was commissioned on Premier Sofia Baptista’s advice after ordinary cross-party and civic consultation, and does what the constitution leaves her: she opens the General Assembly, grants assent, receives ministers, and represents the Province.

She may also, and this is the part the section preserves, ask for things. Requests for clear advice, for lawful documentation and for an explanation of what she is being asked to do are compatible with the office and are not reserve powers, and Rhode Island’s vice-regal practice makes considerable use of them. What she may not do is substitute her preference for ministerial responsibility, and the constitution says so in terms.

Baptista’s ministry is a Labour and Social Democratic minority supported by the Greens and by negotiated Liberal Federal Democrat votes on municipal reform, which in most polities of the Realm would be exactly the arrangement in which a Crown representative’s judgment eventually matters. In Rhode Island it cannot. Confidence is a decision of elected deputies and not an understanding brokered at Government House, and the constitution removed the broker.

The Realm’s constitutional writers are divided about whether this is admirable or reckless, and the division follows the ordinary line: those who think reserve powers are a safety valve think Rhode Island has removed one, and those who think they are an invitation think Rhode Island has removed that instead. The Province has had four minority ministries since 1986 and has not yet had the crisis that would settle it.

Article IX and the Bay compact

The most important thing the Constitution of 1986 does is something it does not itself contain.

Article IX provides for compacts between the Province, other polities, nations and public bodies, and provides that a compact ratified under it may be terminated only in accordance with its own terms. That second limb is the whole point. A compact made by ordinary statute binds the Assembly that made it and nobody else; a compact made under Article IX binds successive Assemblies, because the constitution says the statute may be ended only as the compact provides.

This is the same mechanism the Narragansett required in Article VIII, generalised. The Province that could not bind itself in 1980 gave itself, in 1986, two ways of doing it: entrenchment by the consent of a named party, and entrenchment by the terms of an agreement.

The 2028 Bay compact

The Bay compact of 2028 is a statute made under Article IX between the Province, its coastal municipalities, the Narragansett nation and the federal authorities, dealing with the management of Narragansett Bay against sea level, storm surge, nutrient loading and the reconstruction of shore infrastructure.

It is not a constitutional instrument and it is not an emergency settlement, and both points are made in the constitution rather than in the compact. Article XI’s open-government provisions apply to it. Article II, section 7’s right to reasons applies to it. Article VIII, section 3’s consultation duty applies to it. And Article VII, section 5 means the Province cannot require a coastal town to perform a function under it without providing the means.

The compact therefore sits inside a constitutional frame that constrains it at four points, which is the argument the Province makes when accused of governing the Bay by emergency: ministers cannot use climate urgency to bypass the Assembly, municipal law, Narragansett consultation or judicial review, and a town cannot invoke home rule to make every regional obligation impossible.

Whether that balance holds is the Province’s live governing question rather than its live constitutional one, and the Register’s Rhode Island article treats it. What belongs here is narrower. A Province whose constitution defined nothing until 1986 is now managing its central long-term problem through a mechanism that only a defined constitution could supply, forty-two years after ratification and a hundred and twenty after the instrument that declined to say what its towns held.

What the constitution does not contain

Four absences are worth naming, of which the fourth is the one argued about.

No county government. The five counties are geographic and judicial districts and have no elected government, which the constitution confirms rather than creates; Rhode Island abolished county government in the nineteenth century and the Constitution of 1986 saw no reason to revive the question. The result is a Province with thirty-nine municipalities dealing directly with a provincial government and almost nothing in between, which is manageable at four thousand square kilometres and is the reason the Bay compact had to be built rather than assumed.

No enumeration of what the towns hold, which is section 3 and is the whole subject of this article.

No provision for a Premier’s death in office, which the constitution shares with Massachusetts Bay and which nobody has raised.

And no mention of slavery, which is treated above and which is the Province’s outstanding constitutional debt.

The three New England provinces

Rhode Island, Massachusetts Bay and Plymouth occupy about nineteen thousand square kilometres between them, were founded within sixteen years of one another by people who in two cases were fleeing the third, and have produced three constitutions that agree about almost nothing.

Three sentences that cannot be touched and decide nothing

The pattern is exact and nobody planned it.

Plymouth’s first article is the Mayflower Compact of 1620, reproduced in its original words and spelling, made unamendable by the second article, and operatively inert: no Plymouth court has ever decided anything on it.

Massachusetts Bay’s charter contains the liberty of conscience of 1691 excepting Papists, unrepealed after eleven attempts, of no effect since 1783 and unlawful under the Rights Act twice over since 1962, and kept in print because the Supreme Judicial Court holds that a clause which can no longer operate is not thereby repealed and because the Province refuses to tidy away the evidence.

Rhode Island’s preamble recites the liberty of conscience of 1663, entrenched beyond amendment by Article XIII and expressly deprived of operative effect by the preamble itself.

Three provinces, three seventeenth-century sentences, none of which can be removed and none of which can be used. The Realm’s constitutional writers treat this as the most striking coincidence in the subject and generally conclude that it is not a coincidence: a polity that keeps a founding sentence it cannot use is a polity for which the sentence was never the point, and all three provinces derive a great deal of their civic identity from documents they have arranged to make legally harmless.

Three answers about towns

The provinces disagree about towns more sharply than about anything else, and each thinks the other two have made a mistake.

Massachusetts Bay’s towns have no constitutional guarantee at all, hold everything by statute and custom, were not mentioned in any constitutional instrument until 1934, and prefer it that way on the argument that a power described is a power bounded.

Plymouth’s towns are the parties to the constitution, hold enumerated rights in the eighth to the thirteenth articles, and may sue the Province in their own name without being put to costs.

Rhode Island’s towns took ninety-two years to decide and then took both, accepting a general grant of home rule in Article VII, section 2 and a saving of everything they held before in section 3. The Province’s answer to the other two is that the Bay’s towns are relying on the forbearance of a chamber they do not control and Plymouth’s are limited to what their articles say, and that Rhode Island alone has a floor and no ceiling.

The Bay and Plymouth both regard this as having it both ways. Rhode Island does not dispute the characterisation.

What the three have in common

They are the Realm’s only polities whose constitutional argument is conducted primarily about the past. Massachusetts Bay construes a charter of 1691 against a practice that contradicts it; Plymouth reasons from a covenant subscribed by towns whose subscriptions are on public display; Rhode Island tried a town’s rights as a question of history for seventy-eight years and still does in section 3 cases.

Everywhere else in the Realm a constitutional question is answered by reading a text. In New England it is answered by finding out what happened.

What is contested

Whether it was worth it

The Province’s live constitutional argument is whether the Constitution of 1986 was necessary, and the position that it was not is respectable and is not confined to cranks.

Its case is that Rhode Island governed itself for two hundred and forty-five years without knowing what its constitution was and did it perfectly well; that the 1908 instrument produced no crisis in seventy-eight years; that Foster’s Case was one town, one fire and one unsatisfactory judgment; and that the Province replaced a working arrangement with two volumes, three entrenchments and a Senate with floors in it because a town hall burned in 1811.

Its opponents point at the Narragansett. A Province constitutionally incapable of binding itself could not settle with the people it had most wronged, and no amount of governing perfectly well answers that.

The Register’s observation is that both sides are describing the same fact, which is that the 1908 arrangement worked for everybody it had ever been asked to work for, and that the question of whether it worked was decided by somebody it had never been asked about.

The floors

Whether the Senate’s population floors should survive is argued every review and has never come close to changing. The arithmetic is on the critics’ side, the votes are not, and the amendment would require the chamber the floors advantage.

Section 3

Whether the saving should be repealed now that home rule has swallowed most of it. The towns say no and control the Senate. The argument is nearly theoretical and generates a certain amount of feeling anyway.

What the constitution does not say

The Constitution of 1986 does not mention slavery, and the omission was raised in the convention and lost.

Newport was the largest slave-trading port in North America; the colony that wrote the liberty of conscience sold Narragansett captives into Caribbean slavery after 1676; and a constitution which recites a seventeenth-century grant of liberty in its preamble and says nothing about what the same century’s Rhode Island did with people is a constitution making a choice. The members who moved an acknowledgement in 1985 argued precisely that: that the recital without the acknowledgement was the Province quoting the good half of its own record.

They were defeated, on grounds that were partly about drafting and partly about not reopening a settled preamble, and the vote is in the minutes. The proposal has been raised twice since, in 1998 and in 2016, and has not been put to a ratification. It is the most likely subject of the constitution’s fifth amendment and nobody in the Province expects it soon.

Assessment

The Constitution of 1986 solved a problem that had defeated four attempts across ninety-two years, and it solved it by refusing to make the choice that had defeated them.

Every earlier draft tried to say what a Rhode Island town could do. The Constitution of 1986 gives every town the same modern powers and then saves whatever any of them held before, which is not an answer to the question but is a way of no longer having to ask it. The residue is a corner of the law, is shrinking, and will within a generation be historical. That is a success and it is worth being clear about what kind: the Province did not resolve its constitutional difficulty. It arranged for the difficulty to become smaller each year until it stops mattering.

Its other achievements are more straightforward. It ended a hundred and forty-four years of Providence being outvoted, at the price of a defined inequality it publishes. It gave the Province a rights article that goes usefully beyond the federal Act in the two respects Rhode Island actually cares about, conscience and the shore. And it made the Narragansett settlement possible, which was the thing a Province governed by accumulation could not do and which is the reason the convention was called.

Its faults are of a piece with its virtues. It is two volumes long because its drafters would not decide what to leave out, having watched four sets of drafters be destroyed by that decision. It entrenches three subjects absolutely, each because a party required it, which means the constitution of 1986 has told the Rhode Islanders of every subsequent year what they may not reconsider. And it says nothing about slavery while quoting 1663 at length, which is the criticism that will eventually be answered and has not been yet.

What Rhode Island demonstrates, against the rest of the Realm, is that a polity can govern itself well for two and a half centuries without knowing what its constitution is, and that the reason to find out may have nothing to do with governing well. Rhode Island found out because somebody it had wronged needed it to be capable of making a promise.

There is a narrower judgment worth adding, because the Province makes it about itself and it is the fairest thing anybody says about the Constitution of 1986. It is not a well-designed constitution and it is a well-made one. Its Articles are ordinary, its Schedules are indefensible, its Senate contains an inequality it publishes, and three of its subjects are placed beyond the reach of the people who live under it. Every one of those is the trace of a bargain that had to be struck to get the thing ratified at all, in a Province where four honourable and competent bodies had failed to strike any bargain whatever across ninety-two years.

Judged as design it is mediocre. Judged as the fifth attempt at something four previous attempts had proved could not be done, it is the most impressive constitutional achievement in the Realm, and Rhode Islanders who defend it defend it on that ground and not on any other.

Chronology

Trivia

See also

• Province of Rhode Island and Providence Plantations, the polity this instrument governs
• Polity Instruments Act 1889, which the Province took nineteen years to satisfy
• Constitution of Massachusetts Bay, whose charter excepts Papists and whose working charter doctrine Rhode Island borrowed and retired
• Constitution of Plymouth, the third New England instrument and the third untouchable seventeenth-century sentence
• American Rights Act, which Article II supplements
• Constitution of the March of Arizona, whose nations are parties where the Narragansett are not
• Constitution of California, whose right to reasons Rhode Island reached fifteen years earlier and much more quietly