Ratification

Pauline Maier, “Ratification: The People Debate the Constitution, 1787- 1788”, Simon & Schuster, 2010, 485 Pgs. (559 pgs with notes included).

Maier establishes that there was really no substantive support by anyone in 1787 to retain the Articles of Confederation but there was also little agreement on what should replace it other than that a stronger union was needed. The main difference between those labeled as Federalist and those as anti-federalist was their position on states’ rights versus national authority. As with all compromises, no-one was completely satisfied by the new Constitution. In George Washington’s view, “It was the best that could be obtained at the time.” He took comfort in the fact that the Constitution provided a means for amendments; the provision for amendments was in itself a compromise to get additional representatives to sign on

At the time of the Constitutional convention, which really was allegedly a convention to reform the Confederation, the states would not pay their taxes to defray the war loans owed to foreign nations and colonial benefactors. Congress had no money for the salaries of Confederation employees or for the near-mutinous and deserting troops stationed beyond the Ohio River. Foreign nations threats to take advantage of the weak Confederacy were ongoing. Washington warned, “I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner, as the authority of the different state governments extends over the several states.”

When the Constitution was signed, only thirty-nine delegates from 12 states signed—13 delegates had left before the convention’s end, some for personal reasons and some because they disagreed with the direction the convention was taking. Three others stayed until the end but refused to sign.  Edmund Randolph of Virginia wanted to allow the states to propose amendments and convene a second general convention to accept or reject these additional amendments prior to ratification of the constitution. His motion to that effect was seconded by George Mason (VA), and supported by Elbridge Gerry (Mass), but garnered not a single additional vote. The states would have to vote the Constitution as a whole up or down. Nine states would be required to ratify for the new government to go into effect. Randolph, Mason, and Gerry left vowing to prevent ratification unless their objections were first satisfied.

The first state convention to meet was Pennsylvania. In Pennsylvania, supporters of ratification ran over the minority’s objections and rammed ratification through, leaving unresolved anger in their wake and casting the Federalists in a negative light. By the end of 1787, four states had ratified. But the battles in the remaining states were hard fought and their outcomes far from certain. Few people today are aware of just how close the votes really were and how slender were the threads that bound the nation together. For instance, Massachusetts’ was the first convention to meet in a state where there was significant opposition to the proposed Constitution. It did narrowly pass when 187 delegates voted for ratification, 168 against, nine delegates being absent.

Opposition to the Constitution was also strong in New Hampshire. When the Federalists determined they lacked the votes for ratification, they moved “that the convention adjourn to some future day” rather than risk rejection. The motion carried by a vote of 56 to 51. In Rhode Island, infamous for its puzzling behavior, the Assembly voted down the motion for a convention and instead authorized a statewide referendum. The Constitution lost handily, 2,708 against and 237 for ratification. Maier writes, “Federalists could take consolation in the fact that other states were unlikely to follow Rhode Island’s example, which was considered too disreputable.” When the news reached Mt. Vernon, George Washington worried that the outcomes in New Hampshire and Rhode Island would influence Virginia, considered pivotal to ratification. He prevailed upon James Madison to oversee the Federalist effort there. Tobias Lear, George Washington’s secretary, said Madison was “the only man in this state who can effectively combat the influence of (George) Mason and Patrick Henry.”

The subtitle of Maier’s chapter on the Virginia Convention is “The Battle of Giants” and it was. All the stars of Virginia politics were there; Patrick Henry, George Mason, James Monroe, Governor Edmund Randolph, John Marshall and, of course, James Madison. Henry saw nothing good in the Constitution. He saw only its “deformities, including “an awful squinting toward monarchy.” However, with Madison’s encyclopedic knowledge of the Constitution, he was more than able to respond to Henry’s objections. Virginia’s final vote was 89 for 79 against.

By the time the New York’s convention met, eight states had narrowly ratified. Just a week after the Convention opened, the news arrived that New Hampshire had reconvened and ratified, bringing the number of ratifying states to nine. That meant the Constitution could go into effect. The dynamic had changed. The decision now before New York was whether to stay in the union.

However, despite the preparation of amendments as a condition of ratification, the reality was New York could not rationally demand amendments prior to something that had already occurred. New York voted 30 for, 27 against. Even “Rogue Island” had to come to terms with that hard reality. A convention was convened and the Constitution was ratified, barely, 34 to 32.

Maier points out that although Madison had opposed amendments before ratification “because he feared that would sow contention among the states to the benefit of those who wanted to dissolve the union,” once the Constitution was ratified he supported such amendments as would “serve the double purpose of satisfying the minds of well-meaning opponents, and of providing additional guards in favor of liberty.”  Thanks to Madison’s efforts, the amendments addressed many of the critics’ concerns. In the light of hindsight, it can be said that some of those concerns frame the reality in which we now live.

In the concluding Chapter, Maier writes, The Constitution they gave us proved more successful than its most devoted advocates imagined: It has guided the United States for over two centuries as its boundaries expanded from the Mississippi to the Pacific and its influence spread over the world. The Constitution’s success came less from perfection in its design than from the sacrifices of men like Washington who rook on the presidency with more reluctance than he took to the field with the Continental Army. It also owes much to the dogged commitment of ordinary Americans like the townsmen of Richmond, Massachusetts, and Preston, Connecticut, Madison’s testy constituents in the Virginia Piedmont, and the capable delegates they sent to their state ratifying conventions. They refused to be told that the issues of the day were beyond their competence. They put their minds to complicated problems, tried to reconcile the ideals of the Revolution with the needs of the nation, and considered the impact of contemporary decisions not just in their own lives but for the future.

The original Constitution was approved without amendments but an amendment process was included in the Constitutions’ structure. The Federalists claimed that a bill of rights was dangerous to include because it would imply that anything not enumerated would be a power granted to the federal government. It was claimed that in the Federal government as defined in the Constitution, everything was reserved that was not given to the federal Legislature. However, others correctly pointed out that since the Constitution did, in fact, impose certain reservations on Congress, such as the restriction upon interference with the slave trade for twenty years or the restriction on the ability to grant titles of nobility, these explicit limits indicated that what was not reserved was given. The fight over the bill of rights is one of the most intriguing parts of this book. Of course, the Constitution was passed without them but with the understanding that they would soon follow—and they did.

My Notes:

Pg. 30: The power of the new central government would be divided—as Jay, Knox, and Madison had proposed—among three branches, the legislative (Article I), the executive (Article II), and the judiciary (Article III). The legislature would be bicameral. Each state would have two Senators in the upper house, and a delegation in the House of Representatives proportioned to the number of free persons in their population and three-fifths of all other Persons. (Other Persons were slaves). All members of Congress had to be inhabitants of the states they represented (Article I, Sections 1, 2, and 3).

Pg. 73: Because the great majority of the American newspapers were published in eastern port cities and towns, their trade-oriented subscribers and advertisers had an influence on the press disproportionate to their small part in the country’s population, which remained over 90 percent rural.

Pg. 108: It was pointed out that the Constitution did place some explicit limits on Congress’s power. It could not suspend habeas corpus except in cases of rebellion or invasion (which Lincoln used), nor interfere with trial by jury in criminal cases. Without a complete listing of rights, Habeas corpus and trial by jury in criminal cases might thereafter be construed to be the only privileges reserved by the people.

Pg. 459: Massachusetts, Connecticut, and Georgia did not ratify the first ten amendments to the Constitution until 1939.

Pg. 463: Richard Henry Lee objected to the tenth amendment because it failed to give the states sufficient protection to assure their continued existence. Because the Tenth Amendment—which “reserved to the States respectively, or to the people,” all powers “not delegated to the U.S. by the Constitution, nor prohibited by it to the States”—lacked the word “expressly” before “delegated,” it left the new government free to claim broad powers under the “necessary and proper” clause.

Pg. 463: It is noted that the contemporaries did not call the first ten amendments a bill of rights. Before the enactment of the Fourteenth Amendment in 1868, the Supreme Court never referred to the 1792 ten amendments as ‘the’ or ‘a’ bill of rights. As late as 1880, a Supreme Court justice could say that the federal Constitution, “unlike most modern ones, does not contain any formal declaration or bill of rights.”