Pennsylvania’s Radical Constitution: An Experiment in the Making

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.

If the U.S. Constitution was the product of deliberation in Philadelphia, the Pennsylvania Constitution was the product of revolution in the streets. Pennsylvania’s founding document, born in 1776 at the height of insurrection, broke decisively from colonial governance, offering an unapologetically radical blueprint for democratic life. The Commonwealth’s enduring legacy of constitutional experimentation — from its early embrace of popular sovereignty and expansive rights to the modern judiciary’s role as a democratic bulwark — demonstrates that Pennsylvania’s evolving constitutional tradition both reflects and redefines the trajectory of American democracy.

Historical Development and Modern Framework

Drafted and adopted between July and September 1776, Pennsylvania’s first constitution broke sharply from colonial orthodoxy. It was not merely a reaction to British tyranny but a radical vision of popular sovereignty and participatory democracy that was steeped in the revolutionary fervor of the time.

Inspired heavily by Thomas Paine’s Common Sense, the Quaker heritage of William Penn, and the early influences of Benjamin Franklin, the 1776 Constitution established a unicameral legislature, eliminated the office of governor, and placed faith in an active citizenry with wide voting access and annual elections. It introduced the Council of Censors — an elected body tasked with evaluating governmental adherence to the constitution every seven years — highlighting the state’s commitment to checking power from below. By many accounts, and as described by Richard Ryerson, Pennsylvania became “perhaps the most vital participatory democracy in the world.”

Among its most enduring contributions was the notion of constitutional supremacy — the idea that a constitution stands above ordinary legislation, binding both officials and citizens. This idea, born in Pennsylvania, would later become a bedrock principle in the U.S. Constitution. As former Chief Justice Robert Nix Jr. observed, the intense debates over Pennsylvania’s founding framework “had undoubted influence upon constitutional thought at the time the federal Constitution was written.”

The 1776 Constitution lasted until 1790, when widespread dissatisfaction with the imbalance of power between the branches led to a more traditional governmental structure, including bicameralism and a stronger executive. The bulk of the 1790 Constitution endured, through revisions, until the adoption of the current Constitution in 1968, which formally replaced an 1874 version to modernize governance and improve structural clarity.

Bill of Rights and Positive Protections

Pennsylvania’s 1776 Declaration of Rights, which predated the federal Bill of Rights by over a decade, set the standard for an expansive view of individual liberties. It guaranteed a wider suffrage base — limited by taxpaying status rather than property ownership — and mandated transparency in legislative proceedings. Today, the Commonwealth continues to lead in codifying positive rights the U.S. Constitution omits.

The Pennsylvania Constitution explicitly guarantees the right to vote, unlike the federal Constitution, which contains no such language. The Commonwealth’s Free and Equal Elections Clause has emerged as a vital doctrinal tool for the Pennsylvania Supreme Court, particularly in the face of modern threats to electoral integrity. As I’ve argued, this clause has recently served as a bulwark against legislative efforts to undermine democratic participation. The language has been construed liberally to rein in overzealous legislatures in administering elections, such as extending received-by deadlines for mail-in ballots, permitting incorrect or undated ballots to count, prohibiting overly restrictive drop-box policies, and clarifying residency requirements for poll watchers. Such liberal interpretations of the Free and Equal Elections Clause have helped prevent the disenfranchisement of millions of voters in Pennsylvania.

In addition to voting rights, Pennsylvania’s Constitution guarantees gender equality through Article I, Section 28, which affirms that “equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” In recent years, the courts have begun to engage with this and other provisions to address questions surrounding reproductive autonomy. In 2024’s Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, for example, the court held, in a 3–2 decision, that the state constitution’s Equal Rights Amendment prohibits laws that burden one sex, including the Medicaid abortion coverage ban. It ruled that regulating conditions unique to one sex — such as pregnancy — constitutes sex discrimination under the state constitution.

The case signals how the constitution continues to adapt to modern rights struggles.

Innovation and Inclusion

The Pennsylvania Constitution has also long served as a vehicle for experimentation. From its early abolition of the executive office to the adoption of the 1971 Environmental Rights Amendment, the document reflects a continuous evolution toward inclusivity and responsiveness. The state’s courts have likewise embraced this ethos, transforming into “new laboratories of democracy,” where judges experiment with innovative constitutional doctrines to protect voting rights and democratic norms. That innovation extends to judicial accountability. Unlike federal judges, Pennsylvania’s justices are elected by the people, grounding them in popular legitimacy and subjecting them to direct democratic feedback. This system creates democratically accountable laboratories of constitutional, political and policy adjudication.

Governance and Judicial Power

The 1776 Constitution vested overwhelming power in the legislature, intentionally weakening the judiciary and executive. Judges were appointed for seven-year terms but could be removed at any time for misbehavior. That imbalance proved untenable, leading to the adoption of the 1790 Constitution, which introduced a bicameral legislature and a stronger executive. Today, the pendulum has swung, as Pennsylvania’s judiciary wields significant policymaking power, from overseeing the administration of justice to intervening in election crises. During the COVID-19 pandemic, for example, the courts stepped in to extend ballot deadlines and interpret election statutes in ways that preserved voter access.

Amendments

Pennsylvania’s Constitution is far more mutable than the federal one. Initially, constitutional revision was the purview of the Council of Censors, which proposed changes every seven years. Modern mechanisms now allow for amendment by legislative proposal. Article XI permits the legislatively referred amendment process, which gives the general assembly exclusive authority to propose and pass amendments with a simple majority vote, which then must survive voter ratification through simple majority approval. This flexibility has produced a living state constitution, continuously shaped by evolving values and responsive judicial interpretation. Recent amendments and rulings have leaned heavily on the Free and Equal Elections Clause to fend off efforts to disenfranchise voters. Notably, recent proposals such as Marsy’s Law, a victims’ rights amendment approved by voters in 2019 but later blocked on procedural grounds, illustrate both the vibrancy and legal complexity of Pennsylvania’s amendment process.

Judicial Interpretation and the Battle for Democracy

No recent case better exemplifies Pennsylvania’s modern constitutional laboratory than League of Women Voters v. Commonwealth, in which the state Supreme Court in 2018 struck down a 2011 Republican-drawn congressional map as an unconstitutional partisan gerrymander under the Free and Equal Elections Clause. The decision, based in adequate and independent state grounds, insulated it from federal review after the U.S. Supreme Court in 2019 held in Rucho v. Common Cause that federal courts could not hear partisan gerrymandering claims.

The court’s actions did not stop there. It handed down several pivotal rulings during the 2020 election cycle. In Pennsylvania Democratic Party v. Boockvar, the court extended mail-in ballot deadlines to account for postal delays caused by the pandemic, emphasizing the need to “prevent the disenfranchisement of voters” under the state constitution’s elections clause. In In Re: Canvass of Absentee and Mail-In Ballots, the court ruled that minor ballot defects should not automatically result in discarded votes, reinforcing its commitment to inclusive electoral processes.

Perhaps the most consequential decision came in 2020 in Kelly v. Commonwealth, when Republican candidates attempted to invalidate Act 77—a bipartisan law enabling universal mail-in voting—after they had already lost the election. The court dismissed the case on laches grounds, with Justice David Wecht warning that the challengers were “playing a dangerous game at the expense of every Pennsylvania voter.” These rulings illustrate the court’s evolving role not just as arbiter of constitutional meaning, but as an institutional bulwark against democratic erosion.

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The Pennsylvania Constitution was born of revolution and remains revolutionary. Its legacy is one of experimentation — structural, doctrinal, and democratic. From its radical 1776 origins to its role in the 2020 election litigation, the document and the courts interpreting it have evolved into an architecture for preserving democratic norms. As federal courts increasingly retreat from protecting voting rights, state constitutions and state courts — especially Pennsylvania’s — are leading the charge in defending and redefining American democracy. This is not only Pennsylvania’s constitutional story, it is the nation’s future written in the laboratory of one Commonwealth.

Jerry Dickinson is the dean of the University of Pittsburgh School of Law.

Suggested Citation: Jerry Dickinson, Pennsylvania’s Radical Constitution: An Experiment in the Making, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 6, 2025), https://statecourtreport.org/our-work/analysis-opinion/pennsylvanias-radical-constitution-experiment-making