The Delaware Constitution: The First of Firsts

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Delaware is known as the First State because representatives from Delaware were the first to ratify the U.S. Constitution. But that is not the only first associated with the country’s second smallest state. Delaware’s constitution was also the first in the country to be drafted by representatives elected for that purpose. Ironically, although Delaware’s state constitutional history is grounded in democracy, Delawareans today lack many useful forms of direct democracy possessed by citizens in other states, and it is the only state where popular approval is not required to adopt constitutional amendments.

First Democratically Convened Convention

Before it was a state, Delaware was known as the “three lower counties” of Pennsylvania. That changed in 1776 when the “Delaware State,” as it was called, enacted its first state constitution. The Delaware Constitution was one of the eight state constitutions written in 1776 — the same year the Declaration of Independence was published. After the passage of the Declaration of Independence, the Delaware legislature called a state constitutional convention, which met in August 1776. It prepared Delaware’s Declaration of Rights and Fundamental Rules. The declaration contained many of the rights later found in the U.S. Constitution and its Bill of Rights, such as the right to petition for redress of grievances, compensation for property taken for public use, freedom from warrantless searches and seizures, and freedom of the press. It also included additional rights, such as the right to confront an accuser, to have counsel present, and to examine witnesses.

On September 20, 1776, the Delaware convention approved the constitution. At the time, the Delaware population was largely in favor of creating a state independent from Pennsylvania, but was divided on America’s independence from England. This early document reflected this hesitancy to separate from England and was largely a continuation of the colonial government in effect at the time of its adoption. One important example of the preservation of English common law in the first Delaware Constitution was the right to have juries consist of 12 persons who had to reach a unanimous verdict. Every subsequent Delaware constitution has had this fundamental right, which is broader than its federal counterpart. The Delaware Constitution guarantees the right to a jury trial with 12 jurors and a unanimous verdict in both criminal prosecutions and common-law civil cases, a higher standard than that of the U.S. Constitution, which does not require a jury in all civil trials and requires unanimity only in criminal cases.

According to the Delaware Constitution, a trial by jury is “one of the greatest securities of the lives, liberties, and estates of the people.” The first Delaware Constitution did, however, establish a bicameral legislature and weaken the existing executive branch by replacing the governor with a term-limited president elected by a vote of the legislature. The president had no authority to veto legislation and was supported in the execution of laws by a Privy Council chosen by the legislature. The Privy Council, a feature retained from colonial government, provided advice that was necessary to carry out executive functions. The judiciary consisted of county-level Orphan’s Courts that heard cases related to minors and estates and Courts of Common Pleas to hear civil matters in law and equity. On the state level, there was a supreme court that heard appeals from the Court of Common Pleas and the Orphans Court, which acted as a trial court for felonies and exercised concurrent jurisdiction with the Court of Common Pleas in civil matters where the controversy exceeded 20 pounds. There was also an appellate-level court for appeals from the supreme court called the Court of Appeals. Subsequent versions of the Delaware Constitution — adopted in 1792, 1831, and 1897 — were also all written by elected constitutional conventions.

The First State

On December 7, 1787, elected delegates gathered in Battell’s Tavern in Dover and unanimously ratified the U.S. Constitution, making Delaware the first state to enter the Union and earning it the nickname. Delaware was one of many states to revise its constitution and reaffirm its Bill of Rights and common-law framework.

The second Delaware Constitution, adopted in 1792, incorporated many provisions from the first. But it also introduced the freedom of assembly and several new provisions related to the executive and judicial branches. It replaced the president with a governor, who had stronger powers of appointment and was elected directly by citizens for a three-year term. It also abolished the Privy Council.

The 1792 constitution significantly modified the judicial branch. It reduced the number of judges and, most notably, created a separate court, called the Court of Chancery, to hear matters of equity. Delaware retains a Court of Chancery and it is considered the nation’s preeminent forum for corporate disputes.

The Delaware Constitution of 1792 was heavily modeled on the 1790 Pennsylvania Constitution, rather than the federal Bill of Rights.

Inefficiencies in the judicial system, including crowded dockets and procedural delays in courts like the Court of Common Pleas, led to the adoption of the Delaware Constitution of 1831. Delegates espoused the need to separate law and equity jurisdictions and create a unified Superior Court for all civil matters. To accomplish this goal the new constitution eliminated the Supreme Court and the Courts of Common Pleas and replaced the courts with a unified Superior Court for all civil matters and a Court of General Sessions for lower-level criminal cases. A Court of Errors and Appeals was also created to serve as the highest appellate court. The adoption of the third Delaware Constitution was relatively uncontested because it made few alterations to the state’s governance structure.

The Current Constitution

In November 1851, a majority of Delaware voters supported a constitutional convention, and, the next year, the Delaware General Assembly called for the constitutional convention to be held that December. Although the convention was convened, delegates debated its legitimacy. The 1831 constitution authorized a convention to be called by a majority of all citizens having a right to vote for representatives. The convention delegates were divided over whether a convention could be called by a majority of voters or by a majority of all eligible voters. The divisive debate over the convention’s legitimacy led to the decision to submit the state constitution to the people of Delaware for ratification, who voted no on ratification.

It was more than 40 years later, in 1897, that Delaware adopted its current constitution. The state’s demographics and economy had undergone significant changes. Following the Civil War, the northernmost county in Delaware, New Castle, experienced urbanization and industrialization and an increase in population, while the lower two counties, Kent and Sussex, remained mainly rural. The population growth in the northern part of the state led to the inclusion in the 1897 constitution of a new fixed system of legislators for each county, rather than strict proportional representation.

The 1897 constitution made further changes to the state judiciary by creating a supreme court to hear appeals by four associate justices and a chief justice. A modification that has since become highly controversial requires the Delaware courts to be politically balanced. Specifically, this “bare majority” rule stipulates that no more than a bare majority of judges on the Delaware Supreme Court, Superior Court, Court of Chancery, Family Court, and Court of Common Pleas may be affiliated with any one political party. Another rule, referred to as the “major party” rule, applies to the Supreme Court, Superior Court, and Court of Chancery and mandates that judges not in the bare majority must belong to the other major political party. These rules are meant to create political balance in the state judiciary by dividing the seats between Democrats and Republicans. In 2020, a challenge to these rules on constitutional grounds was accepted by the U.S. Supreme Court but later dismissed on procedural grounds. In 2023, however, a consent decree was reached, and Delaware agreed that the major-party rule was unenforceable due to its exclusionary impact on independents. Still, the bare-majority requirement remains in effect.

The 1897 constitution eliminated the requirement for voters to be white male property owners but added a literacy requirement with the purpose of excluding both people of color and lower income individuals lacking an education. Although federal law (the Voting Rights Act of 1965) eventually rendered voting literacy tests unenforceable, this provision remains in the Delaware constitution. Like all state constitutions after 1865, it also incorporated the federal 13th Amendment, which officially banned slavery and involuntary servitude. The incorporation of the 13th Amendment guarantees the abolition of slavery within Delaware regardless of changes at the federal level.

As explained more fully below, Article IX of Delaware’s 1897 constitution modified incorporation in the state, enabling a flexible corporate governance structure that has made Delaware the preferred jurisdiction for incorporation among publicly traded companies.

Although the 1897 constitution remains in effect, it has been amended more than 80 times, and a few sections have been found to violate the U.S. Constitution or deemed unconstitutional by the Delaware Supreme Court. Originally, Article X, Section 2 of the 1897 constitution related to the appropriation and apportionment of funds for public schools provided that “no distinction [in apportioning funds] shall be made on the account of race or color and separate schools for white and colored children shall be maintained.” This latter portion of this provision, requiring racially segregated schools, was declared unconstitutional by a series of federal and state cases, including Brown v. Board of Education.

Prior to the 1897 constitution, the number of General Assembly members from each of Delaware’s three counties was given equal representation. Article II, Section 2 of the 1897 constitution, however, authorized the City of Wilmington seats in the legislature (two Senate seats and five seats in the House of Representatives), and the three counties were each given five seats in the Senate and ten seats in the House of Representatives. In 1964, the U.S. Supreme Court in Roman v. Sincock, ruled this state constitutional provision violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, which requires legislative districts to be apportioned substantially on a population basis. Following the ruling, state legislation was enacted to reapportion the legislative districts based on population.

Prior to the adoption of the 1897 constitution, Delaware had a unique form of judicial selection in which the governor appointed judges without legislative approval. During the 1897 constitutional convention, judicial selection was a hotly debated topic, with some advocating for the elections of judges and others expressing concern about the political ramifications of having judges run for their seats. The delegates recommended that the Delaware Constitution be amended to authorize the governor to nominate judges, with confirmation by the Senate. However, in an attempt to prevent the Delaware judiciary from being unduly influenced by partisan politics, Article IV, Section 3 established political balance provisions to limit the partisan affiliations of judicial members.

A delegate to Delaware’s 1897 constitutional convention explained, “we have had for twenty years a Judiciary composed of members of one political party,” a fact that “is not calculated to inspire confidence in the Judiciary.” Section 3 contains both a “bare majority” provision which precludes any political party from having more than a bare majority of the seats on the Delaware Supreme Court, Superior Court, Court of Chancery, Family Court or Court of Common Pleas. In 1951, Section 3 was amended to also include a “major party” provision that requires that every member of the Delaware Supreme Court, Court of Chancery and Superior Court be a member of one of the two major political parties in Delaware. 

In 2017, James Adams, a registered Independent who desired a judicial seat, brought a challenge to the “major party” provision and claimed it violated his First Amendment right to freedom of association to make him join one of the two parties to be eligible to be a judge in Delaware. In Adams v. Governor of Delaware, the U.S. Court of Appeals for the Third Circuit agreed with Adams that the “major party” provision violated the First Amendment and, finding that the provision was not severable from the “bare majority” provision, invalidated both provisions. In 2020, however, in Carney v. Adams, the U.S. Supreme Court vacated the Third Circuit’s decision on the grounds that Adams lacked standing to challenge the constitutional provisions because he failed to demonstrate a readiness to actually run for a judicial seat, leaving the political balance requirements in place. In early 2023, Democratic Delaware Gov. John Carney entered into a consent judgment in the District Court of Delaware with Adams and agreed that the “major party” requirement in Delaware’s state constitution violates the U.S. Constitution’s First Amendment. The consent judgment does not impact the constitutionality of the “bare majority” requirement.

Unique Characteristics

Although Delaware is a small state, its constitution has many unique characteristics.

The current Delaware Constitution, via Article IX, set the stage for Delaware’s corporate prominence. It permits incorporation under general law instead of by legislative mandate and provides the state legislature with the exclusive authority to establish and implement a general corporation law that dictates the internal governance of companies incorporated in the state. Delaware also passed a general corporations law in 1899 and this authority, along with interpretative decisions from the Court of Chancery, have led Delaware to become a “corporate mecca” — a favored state for incorporation.

Although Delaware was the first state to have its constitution drafted by elected representatives, the current constitution does not provide Delawareans with many forms of direct democracy available to citizens of other states. Its citizens have no right to citizen-led initiatives nor referenda at the state or local level, although they do have the power to put the question of calling a constitutional convention on the ballot.

The procedure for amending the state constitution makes Delaware a national outlier. Constitutional amendments do not require ratification by a popular vote. Instead, an amendment must be agreed upon by two-thirds of the members of the legislature, published in newspapers, and then approved by two-thirds of the members of the subsequent legislature. As noted, it is the only state in the country that amends its constitution without any direct role for voters in the process.

Another unique attribute of the Delaware Constitution is the balanced budget requirement, which says the state’s annual budget cannot pass if appropriations exceed 98 percent of the estimated state revenue, a mechanism for fiscal restraint.

Interpreting Delaware’s Fundamental Constitutional Rights

The Delaware Supreme Court has interpreted many provisions of the Delaware Constitution’s Bill of Rights as providing for broader fundamental rights than those promised by the U.S. Constitution.

Article I, Section 6 of the Delaware Constitution protects Delawareans against unreasonable searches and seizures. Although the language of the Fourth Amendment to the U.S. Constitution, which guarantees the right to be free from unlawful searches and seizures, is very similar to that in Article I, Section 6, the provisions have been interpreted differently. In 1999’s Jones v. State, the Delaware Supreme Court ruled that a Delaware law enforcement officer must have a “reasonable and articulable suspicion” to seize or search someone, and that the state constitution provides a higher standard of protection against arbitrary police action compared to the federal counterpart. The supreme court traced the history of the Delaware Constitution back to 1776 and relied on the value placed on protecting Delaware’s citizens throughout the state’s history.

Article I, Section 20 protects the rights of Delawareans “to keep and bear arms for the defense of self, family, home, and State, and for hunting and recreational use.” Last year, in Birney v. Delaware, the Delaware Superior Court ruled that the Delaware right to bear arms is broader than the right guaranteed by the Second Amendment of the U.S. Constitution. The court held a 2025 statute restricting the purchase and possession of most firearms by individuals aged 18 to 20 was unconstitutional.

Article I, Section 2 protects Delawareans’ right to free and equal elections. In Young v. Red Clay Consolidated School District in 2017, the Delaware Court of Chancery ruled in favor of voters who claimed election events that drew thousands of participants to a polling place violated the elections clause by preventing voting. According to the court, the Delaware right to free elections is designed to ensure the right to vote is “unfettered,” potentially offering broader protections against restrictive voting procedures than the federal Constitution.

Delaware Today

Although Delaware voters have only decided five ballot measures since 1850, fewer than any other state, the state has achieved significant policy initiatives through legislation, such as the adoption of abortion rights and the legalization of recreational marijuana. As the first state, Delaware was a pioneer in direct democracy, and its constitution, one of the oldest in the nation, dating back to 1897, continues to protect basic liberties for Delawareans — such as freedom from unreasonable searches and seizures, the right to bear arms, and the right to free and clear elections.

Sarah Everhart is an assistant professor of law and director of the Environmental and Natural Resources Law Clinic at Widener University Delaware Law School. She acknowledges the influence and work of the late Justice Randy Holland, the preeminent scholar of the Delaware Constitution.

Suggested Citation: Sarah Everhart, The Delaware Constitution: The First of Firsts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 13, 2026), https://statecourtreport.org/our-work/analysis-opinion/delaware-constitution-first-firsts