Constituting Florida
Two centuries of Florida’s foundational documents uncover political intrigue, social upheaval, and the people who shaped the state.
By Robert Cassanello
On December 3, 1838, 56 planters, lawyers, and other leaders from the Florida territory’s 20 counties gathered in the erstwhile Gulf Coast boomtown of St. Joseph to forge Florida’s founding document. Among the men were William Pope Duval, the first civilian governor of the Florida Territory and the person who chose Tallahassee as the state capital, and David Levy Yulee, who later became Florida’s first Jewish U.S. Senator. Two political factions, the pro-Andrew Jackson Democrats and a burgeoning anti-bank Whig faction derisively known as Locofocos, debated fiercely. Over the course of five weeks, they hammered out who could vote (only free white men who had served in a state militia fighting the Seminole Wars), who could hold office (no bank officers, clergymen, or duelists) and how to regulate banks. They agreed that the institution of slavery should be protected and Tallahassee would be the state capital for at least five years.
Their work complete, the committee forwarded the St. Joseph’s Constitution to Washington, D.C. In 1845, when Florida became the 27th state to join the Union, the document would serve as its constitution.
It wasn’t, however, its last. Nor was it the territory’s first.
The U.S. Constitution was ratified in 1788 and has never been replaced, much like the constitutions of 17 states, each of which has remained unchanged throughout its history.
Florida, though, has had six constitutions since achieving statehood in 1845. And that’s not all.
Before Florida became a state, the political leaders of the West Florida revolt drafted a constitution in 1811. The organizers of the East Florida Patriot War developed a constitution in 1812. The Seminole Tribe of Florida drafted their own in 1957, and the Miccosukee Tribe of Indians of Florida followed in 1962.
Each of those documents represented a blueprint for governance, but also embedded in them are clues that help historians understand the time in which they were written—and the people who wrote them.
Early Constitutional Experiments
Experiments in limited self government happened during the colonial period under the British and, later, during the Second Spanish period. At the end of the French and Indian War (1754–63), the British acquired the Spanish colony of Florida and split it into two parts: British East Florida and West Florida. Although the colonies did not have constitutions, the governors of each established an assembly and held elections. In both colonies, only Protestant, white male landowners could vote or hold office, and in British West Florida only the larger towns of Pensacola, Mobile, and Campbell Town could elect officials to the assembly.
After the American Revolution, the British returned the Florida colonies to Spain with the 1783 Treaty of Paris, and the Spanish maintained the separate East and West Florida colonies under a Second Spanish Colonial rule. In 1812, in response to Napoleon’s invasion of the Iberian Peninsula, the Spanish government met in Cádiz, Spain, and created a constitutional monarchy. The Cádiz Constitution was designed to govern the Spanish colonies in the Americas as well as an incentive to discourage independence movements like those in the United States and Haiti.
For a brief period in 1812, and again for a few months in 1820, the Cádiz Constitution was the governing document for St. Augustine and Pensacola (the Constitution applied only to towns of at least 1,000 people). Only male Spanish citizens could vote (without property qualifications) and elect local leaders. These were the governing documents in place during the transition of the Florida colonies to the United States after the Adams-Onis Treaty in 1819.
CONSTITUTIONS OF THE 1810S
At the turn of the 19th century, the Spanish Florida colonies were under attack from American settlers looking to overthrow the Spanish government and install an independent republic in its place. The first of these incursions, the West Florida Revolt, launched in the summer of 1810 when American citizens formed an army and held the land between Baton Rouge and Mobile. In October 1810, the settlers in revolt formed a Constitutional Convention. The document they drafted protected property rights of the settlers and asserted their authority as an independent republic on the Gulf Coast. The Constitution also protected the institution of slavery, granting citizenship and suffrage rights only to white men. They established elections, requirements for holding office, and a bicameral legislature. The experiment as the Republic of West Florida was short-lived, however: Just two months after the adoption of the Constitution, the U.S. military took control of West Florida and incorporated it into the Louisiana Territory.
A similar event happened in East Florida, in 1812, when a group of American settlers invaded Fernandina, Amelia Island, and St. Augustine in what was known as the Patriot War. The settlers aimed to capture Spanish East Florida so that the United States could acquire the territory. Calling themselves “revolutionaries” in the same manner as those from 1776, they drafted a Constitution based heavily on two previous Georgia state constitutions. It created executive, legislative, and judicial branches of government and was meant to serve temporarily until the United States acquired the territory. The U.S. government, however, pulled its military support for the incursion and the attack on East Florida was abandoned when Spanish troops arrived to reinforce St. Augustine, returning the occupied sections to Spanish control.
Both constitutions from the 1810s represented transnational documents: They were conceived in opposition to the Spanish government, and they addressed concerns about the British and French presence within the Gulf of Mexico and Caribbean. They also represented constitutionalism in transition. Both embodied 18th century constitutional thought, a philosophy which holds that government powers are limited by law. But they also included new traditions that would fully bloom by the Jacksonian Era in the 1830s. In both documents, only landholders could hold office, and there were no options for direct elections of officials. But they did allow white males to vote without property restrictions.
ANTEBELLUM AND CIVIL WAR CONSTITUTIONS
The first state of Florida constitutions had their origins in 1838, when lawmakers convened in St. Joseph, Florida. Florida was still a territory when the 56 delegates met to draft the constitution that would prepare the territory for statehood. By this time the center of Florida had shifted from Pensacola and St. Augustine to the middle plantation belt centered in Leon County. The delegates had three great concerns: the banks, the Seminole Wars, and protecting the institution of slavery. The document that emerged was unlike other state constitutions in that it regulated banks, a feature that would disappear in future iterations. Although Seminoles and other Native People were not specifically mentioned in the text, the delegates did address the process of forming state and local militias to fight in the Seminole Wars. Finally, the St. Joseph Constitution protected slavery, mirroring the U.S. Constitution’s Three-Fifths Compromise and empowering the state government to regulate the migration of enslaved people and free African Americans to prevent them from entering Florida.
When the Civil War began, political leaders in Florida decided to join the Southern states in creating a Confederate Nation. Delegates met in 1861 to draft the state’s Ordinances of Secession. They passed eight ordinances that revised the 1838 Constitution for the Confederate State of Florida. The changes were minor, including centralizing the process for organizing militias and appointing their leaders at the state level. Restrictions on serving as statewide officials and in the state militia were loosened to expand the pool of eligible candidates during wartime. After the constitution was ratified, the state Confederate legislature passed laws that more directly regulated slavery to harden the system as a wartime measure. Finally, the delegates gave the authority to amend the Constitution to a convention rather than the legislature. The state Confederate constitution would only last until the end of the Civil War, leaving future state constitutions to grapple with the legacy of states’ rights in the form of the abolition of slavery and the citizenship rights of African Americans.
POST EMANCIPATION CONSTITUITIONS
The three constitutions after the Civil War were drafted and ratified in the shadow of emancipation and citizenship for African Americans. With the end of the Civil War and the end of slavery in Florida, federal authorities placed the state and its government under military rule. The first of the constitutions was drafted and ratified in 1865, during President Andrew Johnson’s Presidential Reconstruction period. It required Florida to do two things: repudiate secession and abolish slavery. But the document excluded African Americans, many of whom were formerly enslaved, from full citizenship, including the right to vote and serve on juries, and it imposed a convict-leasing system directed at the formerly enslaved. In other ways, the 1865 Constitution was similar to the 1838 Constitution, except it created a stronger executive branch and expanded the judicial system. Less than a year after ratification, however, Congress impeached President Johnson and took over Reconstruction, putting the state back under military control.
In the fall of 1868, Black men gained the right to vote for the first time and participated in electing delegates, some of whom were also Black men, to the 1868 Constitutional Convention. Most of the delegates came from the Republican Party in Florida. The 1868 delegates were divided between racial moderates and radicals, both of which created their own constitution. Finally, the moderates took over the convention, and their draft became the 1868 Constitution. It defined equal citizenship rights for African Americans in the state, created a public education system that remained in each subsequent constitution, and provided representation for Indigenous people in Florida. Although the provision for Indigenous representation was never enacted, the constitution was the most democratic document ratified in Florida’s history to that date.
Reconstruction came to an end in Florida in the 1870s when the military left Florida and voters again elected Democratic Party officials, signaling a return to white rule in state government. In 1885, voters chose delegates to draft a new Constitution that established the Jim Crow system of racial segregation. The delegates debated to determine the nature of voting restrictions and gave authority to future legislatures to enact further restrictions to diminish the Black vote. Several laws were passed over the next few decades that did just that. The system of public education remained, but racial segregation was still mandated in public schools.
INDIGENOUS CONSTITUTIONS
The throughline of these documents can be tied to treaties and trading agreements that go back to the Spanish period. Scholars of Indigenous Constitutionalism recognize these legal and constitutional histories that pre-date contemporary written and ratified Constitutions.
In the 1950s, though, the Seminoles and Miccosukees petitioned the federal government for recognition as sovereign governments and autonomous polities. In 1957, Seminole leaders drafted a constitution that established a tribal council and board to govern the Seminole Tribe of Florida. They created a representative system of elections and defined citizenship based on bloodlines. The Miccosukee speakers along the Tamiami Trail protested, refusing to join the Seminole Tribe of Florida and petitioning for recognition distinct from the Seminoles. After a group of Miccosukee leaders traveled to Cuba in 1959 and received recognition by Fidel Castro’s government, the U.S. followed suit. The Miccosukees ratified their constitution in 1962. It was similar to the Seminole Tribe’s Constitution except in terms of representation; they included all adult members over the age of 18 on their Council, with leaders elected at large. They initially based citizenship on bloodlines through matrilineal or patrilineal descent as the Seminoles did, but later moved to matrilineal-only inheritance.
THE MODERN FLORIDA CONSTITUTION
The 1968 Constitution continued the state supported system of public education but eliminated the racial segregation language. It also revised Jim Crow language, including removing poll taxes. The delegates included a fairer system of apportionment and recognized Florida as a “right to work” state with the ability to collectively bargain and form unions. Notably, Florida’s 1968 Constitution was the only state constitution that made amendments remarkably easy and also provided multiple pathways to achieve them, including by citizen-led initiatives.
A FLORIDA CONSTITUTIONALISM
