Delaware: Inviolate Rights in a Violate Time

[This is the fifth post in a series about declarations of rights that the newly independent states adopted in 1776. You can read the first post here, the second post here, the third post here, and the fourth post here. We are running the posts in the lead up to a conference called “The Other Declarations of 1776.” Co-sponsored with our friends at the Liberty & Law Center at George Mason University’s Antonin Scalia Law School, it is an all-day conference (with a free lunch!) in Arlington, Virginia on April 10, 2026. Members of the public—including you!—are very much invited to attend in person. See the details, and register, here!]

In the heated business of constitution writing late in the summer of 1776, Delaware’s specially elected constitutional convention got to drafting its “Declaration of Rights and Fundamental Rules of the Delaware State.” The specific timing put that drafting just a few weeks—or even days—after a handful of other states. That allowed the delegates to draw from the other states’ recent handiwork when fashioning the first constitutional protections in the First State—before it even was the First State. (A title it later earned when it was the first to ratify the U.S. Constitution in 1787.)

Previously, we’ve seen how Virgina’s pathbreaking Declaration of Rights (that is, the first draft of that declaration) then influenced Pennsylvania’s and Maryland’s. Today we examine how Delaware’s convention had all three at its disposal, although for the most part it drew almost exclusively from next-door Maryland’s.

Delaware Declares

With only three counties and the smallest land area of any state other than Rhode Island, it was a fairly straightforward process to send delegates to Delaware’s convention: ten per county, resulting in a cozy gathering of 30. Two of them had recently signed the Declaration of Independence, George Read and Thomas McKean. They gathered together in New Castle on August 27 and on August 30 elected Read president of the convention. Then, on September 2 a committee to write a declaration of rights was appointed, with Richard Bassett as the chair. The committee worked quickly, presenting a draft declaration to the full convention on September 11, which approved it the same day. The full constitution itself was adopted not long after, on September 20.

In a sense, this earned Delaware a separate “first state” honor as it was the first state constitution adopted by a convention specifically elected for that special purpose—although the convention did perform some additional “legislating” while in session, such as borrowing money and promoting militia officers.

The committee had access to at least drafts of all three of the previous state declarations of rights. In the post on Maryland’s we referred to now-Judge Dan Friendman’s article about which state borrowed from which as these declarations were put together. Judge Friedman demonstrates that Delaware’s delegates overwhelmingly borrowed from next-door Maryland’s draft declaration. There are slight borrowings from Pennsylvania’s and perhaps a dollop of language taken from Virginia’s that was not already in Maryland’s. Even so, Delaware’s delegates did not unthinkingly copy the draft from Annapolis. They made many changes and interestingly tried to freeze into place much of it, prohibiting later amendment.

Rights in, and out, of Declarations

In these early days of American constitutionalism what belonged in a declaration/bill of rights and what should be in the “structural constitution,” that is to say, the rest of one, hadn’t quite been set yet. There were important protections against government overreach put in declarations of rights that look more like something that belongs in, for example, Article I of the U.S. Constitution. And there were provisions that look more like something that belongs in the Bill of Rights in the U.S. Constitution that ended up in the “structural” parts of revolutionary era state constitutions. (Of course, the framers in 1787 did this too, such as with the Contracts Clause and Ex Post Facto Clause, which are in the original, unamended, Constitution, and not in what we now call the Bill of Rights.)

In Delaware, for example, the delegates included Article 19 in their Declaration of Rights, which warned against standing armies and stated they “ought not to be raised or kept up without the Consent of the Legislature.” That’s a lot like Article I, Section 8, Clause 12, which limits Congressional appropriations “to raise and support armies” to two years. But they also took language that Marylanders had included in that state’s draft declaration of rights and put it in Delaware’s structural constitution. For example, Delaware’s delegates did this with bans on people holding plural offices. These rearrangements and labels are a reminder that a right by any other name is still a right no matter what the section heading above it says—and vice versa.

Many of the provisions in Delaware’s 1776 Declaration of Rights, however, are what we’d recognize as “enumerated rights” today. There are protections for religious liberty (although only Christians “ought forever to enjoy equal rights and privileges”), “free and frequent” elections, trial by jury, counsel for criminal defendants, a ban on quartering soldiers, and “liberty of the press.”

A Declaration for All Time – Until Next Time

Unlike the mostly borrowed provisions of the Declaration of Rights itself, Delaware’s method for amending its constitution was unique. As discussed earlier in this blog-post series, written constitutionalism was brand new. Through the crucible of war and revolution, Americans were inventing practices and understandings that we now take for granted. One of these was how “higher law constitutions” change.

The delegates in New Castle came up with an interesting—and unflinching—method. If you think the U.S. Constitution is strict about amendments then you should check out Article 30 of Delaware’s from 1776:

No article of the declaration of rights and fundamental rules of this State, agreed to by this convention, nor the first, second, fifth, (except that part thereof that relates to the right of sufferage,) twenty-sixth, and twenty-ninth articles of this constitution, ought ever to be violated on any presence whatever. No other part of this constitution shall be altered, changed, or diminished without the consent of five parts in seven of the assembly, and seven members of the legislative council.

It’s not obvious until one reads both sentences through a couple times, but the implication in the second sentence of only being able to amend certain parts of the Constitution with legislative supermajorities is that the rest of the Constitution can’t be amended at all.Thus, nothing in the Declaration of Rights—nothing!—can be changed. And some of the 30 Articles in the rest of the constitution cannot either. (The delegates had their reasons for protecting these Articles—1, 2, part of 5, 26, and 29—but they may look a bit random to modern eyes. These Articles related to the state’s name, bicameralism, legislative rulemaking, a ban on importing slaves (but not slavery itself), a ban on an established church, and a ban on clergymen holding office.) For the rest, the Articles could be amended with the five-sevenths supermajority in the assembly (the lower house) and seven out of the nine members of the legislative council (the upper house).

The irony of history is that just 16 years later Delaware held a constitutional convention and adopted a new constitution that included a much “altered” and “changed” declaration of rights. (I’ll leave it to others on whether it was “diminished.”) Delaware’s current constitution and Bill of Rights was adopted in 1897.

You could call—and at the time some did—this new constitution “unconstitutional” under that of 1776. But, of course, Delaware’s move in 1792 was not unheard of. The still-new U.S. Constitution famously had been adopted in violation of the Articles of Confederation, which required unanimity among the state legislatures for change.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.