CHAPTER FOUR

THE CONTEST OVER RATIFICATION

AMERICA’ S FIRST NATIONAL REFERENDUM

AS THE DELEGATES TO THE PHILADELPHIA CONVENTION made their way back to their home states, the words engrossed on the four sheets of parchment they had drafted that summer represented little more than opinion. They lacked the sanction of the Continental Congress, the state governments, or “We the People.” By the terms of the proposed Constitution, the new government would take effect when nine of the thirteen states, deliberating in specially called ratifying conventions, added their assent to the document. This was yet another of the revolutionary provisions of the proposed Constitution, as under the terms of the Articles of Confederation unanimous approval of all thirteen state legislatures was necessary for any amendment to take effect. But having already made the decision not to amend the Articles but, instead, to create an entirely new scheme of government, the framers devised a ratification procedure aimed at avoiding the necessity of unanimous approval.

The debate over the proposed Constitution in the individual states was America’s first national referendum—the first time voters in all the states were asked to express their opinion about a specific subject. Unlike in state or local elections, where multiple candidates and multiple issues could often produce ambiguous results, the decision facing Americans during the ratification debates was a stark one: yes or no.

The debate over ratification was, first and foremost, a partisan political contest. In that contest supporters of the Constitution enjoyed some important advantages. In what would prove to be a brilliant tactical move, they appropriated the name Federalists from their opponents, leaving those who opposed ratification with the unappealing label of Anti-Federalists. In fact, most scholars agree that the true “federalists,” in the original meaning of that word, were the opponents of the Constitution, who continued to believe in a central government of strictly limited powers, operating within the framework of a confederation of independent and sovereign states.

Equally important, the Federalists were able to capitalize on a key factor working in their favor: momentum. They immediately sent the proposed Constitution to the Continental Congress, and then persuaded the Congress to release the document to the states for their consideration within eleven days after the Convention adjourned. At that point supporters of the Constitution—many of whom had served in the Constitutional Convention and were already well prepared with arguments defending their actions—stole the initiative from their opponents. Many Anti-Federalists, though alarmed at the extent of the changes proposed by the Constitution, had not yet had time to formulate coherent arguments against ratification. Between the end of September and January 9, five states—Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut—ratified the Constitution. Only in Pennsylvania was there significant opposition, and even in that state the superior organizational abilities of the Federalists—in particular, their control of most of the newspapers reporting on the debate over the Constitution—enabled them to prevail in the state ratifying convention by a two-to-one margin. As the Constitution was transmitted to the remaining states, the conventions in those states were confronted not only with a decision about whether or not to adopt the Constitution but also with the fact that more than half of the necessary nine states had already decided to do so.

Nevertheless, opponents of the Constitution in Massachusetts, the sixth state to consider the document, put up a fight. Massachusetts was the third-most-populous state in the union. It had been in the forefront of the fight to protect American liberty in the years leading up to independence, and at least of a few of its principal leaders—Samuel Adams and John Hancock in particular—had not participated in the Constitutional Convention and were known to be skeptical about the proposed Constitution. As the Massachusetts convention opened for business in mid-January, most observers calculated that the delegates were at best evenly divided and, possibly, leaning toward rejecting the Constitution.

As the debate on the Constitution unfolded, many of its critics focused on the absence of a bill of rights, and this issue became a rallying point for opposition in Massachusetts. The supporters of the Constitution, sensing that they might lose the battle for ratification, gave way, holding out the promise that they would add a bill of rights in the form of amendments as soon as government under the new Constitution commenced. Although many of the opponents of the Constitution demanded amendments as a precondition to ratification, the promise of subsequent amendments was sufficient to bring influential delegates such as John Hancock and Samuel Adams over to the side of the Federalists. By a slim margin—187 to 168—the Massachusetts convention ratified the Constitution on February 6, 1788.

The issue of prior versus subsequent amendments would be a part of the debate in all the remaining states considering the Constitution, but as the number of states agreeing to adopt the Constitution approached the necessary nine, momentum continued to favor the Federalists. Rhode Island, which had refused to attend the Convention in Philadelphia, declined even to call a ratifying convention in March of 1788, but following Rhode Island’s rejection, Maryland agreed to the Constitution in April and South Carolina added its assent in May, bringing the total in the Federalist win column to eight. New Hampshire and Virginia debated the Constitution in June, and although New Hampshire’s ratification on June 21, 1788, made adoption of the Constitution official, the debate in Virginia—the nation’s most populous state and home to George Washington, the man who was everyone’s choice to be president of the new United States—was considered by many to be crucial to the success or failure of the new union.

Virginia was also home to Patrick Henry, second only to Washington in popularity in his home state and perhaps the most formidable opponent of the Constitution in America. When George Washington sent him a copy of the Constitution soon after the Philadelphia Convention adjourned, Henry was nearly speechless with anger at the way in which the Convention had exceeded its authority. Responding to Washington’s letter transmitting the copy of the Constitution to him, Henry maintained a polite and civil tone, but he was deeply unhappy, telling Washington that his distress over the document was “really greater than I am able to express.” From that moment on, Henry worked tirelessly to prevent the adoption of the Constitution in his home state.

The battle in the Virginia ratifying convention featured Henry in the opposition against the Constitution’s principal architect, James Madison. Henry, the firebrand of the Revolution in Virginia, scaled new oratorical heights in denouncing the Constitution’s tendencies toward a “consolidated government.” Madison calmly, systematically, and masterfully rebutted Henry’s criticisms. In the end, the issue of prior versus subsequent amendments shaped the outcome. When the Virginia convention finally voted on the Constitution on June 25, 1788, the Federalists narrowly prevailed, eighty-nine to seventy-nine—but only after agreeing to propose to the First Federal Congress “whatsoever amendments may be deemed necessary.”

At that point it became clear that a new government under a new constitution would go forward, but one of the young country’s most populous and prosperous states, New York, had yet to consider the document. Two of the three New York delegates to the Constitutional Convention, John Lansing and Robert Yates, had staunchly opposed the Constitution every step of the way in Philadelphia. They continued their opposition during the ratification debate in New York, and, to make matters more difficult for supporters of the Constitution, New York’s governor, George Clinton, was believed to dislike the proposed Constitution as well. It looked like the Constitution would go down to defeat in that state, but when news of Virginia’s ratification reached New York, it became harder for the voters there to contemplate a life outside the strong union that was by then a foregone conclusion. As a consequence, New York ratified in late July of 1788, followed by the two laggards: North Carolina, in November of 1789, and Rhode Island, in May 1790.

The American people, with memories of the excesses of British rule still fresh in their minds, continued to be fearful of an overly centralized government, yet the Federalists had persuaded a substantial majority of those people to overcome their fears and adopt a Constitution giving the new federal government vastly increased powers. Some of their success in doing so was owed simply to their superior preparation and organizational skills; they had seized the initiative and swung a largely uniformed populace over to their side. But the ratification contests also produced an impressive body of political writing, some of it rising above its primary purpose of political persuasion to achieve enduring intellectual importance.

Between late September 1787 and the fall of 1788, several hundred pamphlets and newspaper essays appeared, both supporting and opposing ratification of the Constitution. The most influential of these were the eighty-five essays written by Alexander Hamilton, James Madison, and John Jay, which appeared under the pseudonym Publius. Hamilton, who had argued in the Constitutional Convention in Philadelphia for a government based closely on the aristocratic English constitution, had played an insignificant—perhaps even harmful—role in that body, but he was the man most responsible for orchestrating the writing of what came to be called The Federalist Papers. Although Hamilton was not wholly pleased with the final product of the Constitutional Convention’s labors—he thought the proposed government was too weak and too “democratic”—he took the initiative to recruit James Madison and John Jay to join him in the effort. Although before the spring of 1788 they did not circulate much beyond New York, and therefore may not have had much of an impact on the ratification contest in most states, The Federalist Papers have by now achieved the status of a canonical text of American government and constitutionalism. Extended excerpts from three of the most important of those essays—numbers 10, 51, and 78—are included in this volume to give readers an appreciation for the extraordinarily high quality of political discourse in the founding era.

Although there was no single set of Anti-Federalist writings that matched The Federalist (as the first compilation of the papers was titled) either in its immediate impact or its influence on subsequent generations, Anti-Federalist writers did publish more than two hundred pamphlets and broadsides in opposition to the Constitution. Because Anti-Federalist critics raised every objection they could possibly devise in their attempt to defeat the Constitution, their critique lacks the intellectual coherence of The Federalist, but the broad themes of that critique—a distrust of concentrations of government power, and an emphasis on the role of ordinary citizens in preventing government encroachments on the people’s liberty—have proven to be of enduring importance in American constitutional discourse.

As the debate over the Constitution concluded and the new government prepared to begin its operations, there remained fundamental differences of opinion among America’s political leaders and the country’s citizens about the meaning of the words crafted by the framers on the four parchment pages during that summer in 1787. The men who drafted the Constitution were not political philosophers but, rather, eighteenth-century politicians confronted with a daunting array of competing interests, provincial attachments, and real-life problems as they sought to hammer out a workable form of federal union. The form the eventual document would take was legal, but the process by which they arrived at the final language of the document was intensely political. After nearly four months of debate, disagreement, and numerous compromises (some of which, like those involving slavery, would come back to haunt the young nation), they finally arrived at a fragile consensus, producing a constitution that was, as Benjamin Franklin admitted, far from a “perfect production.”

Whatever pride the framers may have taken in their achievement, few would have claimed that the language they had crafted was somehow immutable. They were all too aware that many of the compromises that had allowed them to reach their fragile consensus on September 17—most notably, those involving the division of power between state and federal governments within a new form of federal union, and the multiple compromises relating to the powers and mode of election of the executive branch—might serve to confuse, not clarify, the “ordinary meaning” of the words in the document they had devised. And once the new government under the Constitution commenced its operations, they would become even more acutely aware of the differences of constitutional opinion that would continue to divide them. The framers of the Constitution who met in Philadelphia in the summer of 1787 can be justly praised for creating a plan of government that was, in George Washington’s words, “so little liable to well-founded objections.” The popularly elected delegates to the state ratifying conventions helped give the people’s sanction to that plan. But the work of creating an American nation, governed under the Constitution, still lay ahead.

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