R. B. Bernstein,
Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998)
and Adjunct Professor, New York Law School

In some ways, the years 1787-1789, during which the American people debated and ultimately adopted the Constitution, compose the supreme moment of American political and constitutional creativity. Nothing else comes close.

When the delegates met in Philadelphia as the Federal Convention, they remembered that both the Articles of Confederation and any amendments that might be proposed to them had to be adopted, or ratified, by all thirteen states' legislatures. All attempts to amed the Articles thus failed, as would the proposed Constitution if it were subjected to the procedure codified in Article 13 of the Articles. There were three reasons why both earlier amendments to the Articles and the proposed Constitution would fail under Article 13's procedures: First, it was simply impossible to secure unanimous endorsement by all thirteen states of even the most modest amendment -- and the proposed Constitution was far more than a modest amendment to the Articles. Second, the framers of the Constitution realized that the state legislatures woud not accept a system that diminished their authority. Third, the framers noted that they were creating a new constitution for a united American people. On the grounds of political and constitutional principle, the state legislatures, as agents of the people of the several states, could not exercise the power to cosntitute a government on behalf of their citizens -- only the people of the several states, or representatves whom they elected solely for that purpose, could exercise that constituent power.

Thus, Article VII of the proposed Constitution provided that the new charter of government would go into effect when ratified by nine of the thirteen states -- or a two-thirds margin. While not easy, this goal was far easier to achieve than the unanimous consent of the states required by Article 13 of the Articles of Confederation. Moreover, Article VII and the resolutions adopted by the Federal Convention required that the proposed Constitution be adopted not by the state legislatures but by specially-elected ratifying conventions that would represent the people of each state. Again, the framers had three reasons for this procedure: (i) two-thirds would be an easier majority to achieve than unanimity; (ii) the popularly-elected ratifying conventions would be an acceptable means of bypassing hostile and suspicious state legislatures, and (iii) the ratifying conventions would embody the Convention's fidelity to the principle of constituent power

Thus, when the Federal Convention dissolved on 17 September 1787, it sent the proposed Constitution and its accompanying resolutions to the Confederation Congress. That body debated the matter on 26-28 September. It fended off the demands of opponents of the proposed Constitution (such as Richard Henry Lee of Virginia, Abraham Yates, Jr., of New York, and Nathan Dane of Massachusetts) that the Confederation Congress rewrite the proposed Constitution, or propose a set of amendments to it, or reject it out of hand as exceeding the Convention's power. At the same time, the Confederation Congress did not pass a formal endorsement of the Constitution, as its supporters (including Alexander Hamilton of New York and James Madison of Virginia) had hoped for. Instead, Congress silently forwarded the proposal (thus conveying an implied endorsement of the Constitution's legitimacy) to the states, which in turn held elections for the ratifying conventions -- all except Rhode Island, which of course had refused to send any delegates to the Federal Convention at all.

The ratification controversy worked on two levels that interacted constantly. On the formal level, as we have seen, the Confederation Congress sent the proposed Constitution to the state legislatures, which then called elections for ratifying conventions, which then met to deliberate on adopting or rejecting the proposed Constitution. On the informal level, a vigorous and passionate argument over the Constitution raged throughout the nation -- in newspapers, pamphlets, and broadsides; in political rallies, torchlight marches, and other rituals of political self-expression. The informal argument, in some ways, was more important than the formal level, for it represented the launching of American constitutional discourse: the shared argument about the document's origins, significance, meaning, and applications. By its mere existence, the ratification controversy and its informal arguments helped to create a national political community; it helped to focus the American people's attention on the political component of their national identity.

We think of the ratification controversy as pitting Anti-Federalists against Federalists. Who were the Anti-Federalists? The traditional distinctions are largely unconvincing. Some scholars have emphasized wealth and poverty -- that is, rich people tended to support the Constitution and poor or working-class people tended to oppose it. That distinction breaks down, however, for there were many rich opponents of the Constitution (such as George Mason of Virginia) and the proposed document had many working-class supporters in cities such as Philadelphia and New York. Another distinction often cited is that between urban Americans, who tended to support the Constitution, and rural Americans, who tended to oppose it. Again, that distinction fails in light of such opponents of the Constitution as the lawyer-merchant Melancton Smith of New York City and the noted revolutionary Samuel Adams of Boston, and such supporters of the Constitution as John Marshall and James Madison of Virginia.

Recent scholarship, spurred among other things by the labors of the distinguished Documentary History of the Ratification of the Constitution at the University of Wisconsin, suggest that the national issue of supporting or opposing the Constitution interacted in each state with pre-existing divisions of local and state politics to produce a crazy-quilt of shifting alliances and loyalties.

The major intellectual problem in understanding ratification is sorting out the relationships between the Federalists' -- and the Anti-Federalists' -- understandings of politics and society and their positions on the Constitution.

We can sort out the key issues of the ratification controversy thus. (Note that the sketches below are just that -- sketches that do not pretend to do more than suggest the complexity and the richness of the argument over the Constitution.)

1. Legitimacy of the Convention and the proposed Constitution

The Anti-Federalists insisted that the Federal Convention had exceeded its mandate under the Confederation Congress's 21 February 1787 resolution, which, they insisted, was simply to propose amendments to the Articles that would be considered under the procedure specified in Article 13 of the Articles. The Federalists retorted that the Confederation Congress had accepted the legitimacy of the proposed Constitution, as had the states that had voted to hold ratifying conventions and elect delegates to those conventions; thus, the issue was beside the point. In addition, in The Federalist No. 40, James Madison invoked the right of revolution described in the Declaration of Independence -- pointing out that a government too weak to safeguard the fruits of the Revolution was just as much a threat to the liberties of the people and the general good as a government that sought to be too strong for the people's liberties, against which the people fought the Revolution.

2. Nature of the Union -- federal versus state

This argument broke down into two related issues, each of which was stressed by one of the contending factions in the ratification controversy:

a. fate of states under proposed Constitution

The Anti-Federalists insisted that the general government outlined in the proposed Constitution would swallow up the states, reducing them to administrative districts at best, and thus destroying the people's liberties and right of self-government. The Federalists, citing the history of government under the Confederation, insisted that the likelihood was that the states would continue to infringe on the just powers of the general government rather than the reverse.

b. fate of Union without proposed Constitution

The Federalists insisted that only a government at least as strong as that outlined in the proposed Constitution would be sufficient to protect the general good and the liberties of the people; otherwise, the Union would come apart into two or three or more separate confederacies (whether because scheming Anti-Federalists intended such a result, which was not true, or because the Union would tear itself apart due to the weakness of the Confederation, which was at least arguable). The Anti-Federalists denied any plan to break up the Union and insisted that even if the Confederation was too weak to safeguard American interests, the answer was not the dangerous plan incarnated by the proposed Constitution.

3. Article I: representation, powers of Congress

The Anti-Federalists maintained that the scheme of representation was far too inadequate to take account of the extent and diversity of the American people and their interests. They drew unfavorable contrasts between the small House of Representatives and the comparatively minuscule Senate, on the one hand, and the large state legislatures, on the other. They also noted that, because of this unjust scheme of representation, which would limit service in the House or the Senate only to powerful and wealthy men and would exclude most others, the powers of legislation entrusted to Congress were far too sweeping and dangerous. The Federalists insisted that the scheme of representation was designed to elevate men of refined and enlarged views, who could take account of the interests of the whole nation; moreover, future reapportionments would expand the size of the House far beyond what it would be in the first years under the Constitution. Finally, the powers accorded to the Congress were both circumscribed enough to avoid infringing the rights of the people or the legitimate powers of the states, yet extensive enough to safeguard the general good and vindicate American interests.

4. Article II: Presidency

The Anti-Federalists challenged the Presidency on several grounds. They distrusted a one-man chief executive as what Edmund Randolph called "the foetus of monarchy." Because he did not share his powers with a constitutional council, as was the case in such states as New York and Massachusetts, there would be no checks on his exercise of those powers. Impeachment was far too unwieldly and difficult to invoke, and he would miss no chance to ensure his repeated re-election from term to term for life. Federalists insisted, by contrast, that because the President exercised his powers alone he would be more accountable, not less; that his relatively brief term of office would not enable him to become a monarch; that the electoral-college system would ensure a careful choice of the best man for the job. An unspoken Federalist corollary to these arguments was the assumption (justified by events) that the first President would be George Washington, whose support for the proposed Constitution was a powerful Federalist argument that often drove Anti-Federalist controversialists to distraction.

5. Article III: Judiciary

The Anti-Federalists decried provisions for a federal court system as unnecessary and expensive; they worried that the federal courts would use all available legal expedients to swallow up the jurisdiction, caseload, and legal business of the state court systems, thus to level all distinctions between state laws and leave the people of the several states subject to a tyrannous federal bench. They also decried the lack of trial by jury in civil cases. In response, the Federalists sought to justify the federal court system as a bulwark of liberty, defending the Constitution against potential unconstitutional excesses by the national legislature or executive and vindicating the Constitution and the authority of the general government against threatened encroachments by the states.

6. Lack of a Declaration of Rights

The Anti-Federalists found this the single most powerful and persuasive argument against the proposed Constitution; even those otherwise favoring the Constitution (such as John Adams, Thomas Jefferson, and Edmund Pendleton) objected to the lack of a bill of rights. Jefferson reproved Madison: "A bill of rights is what the people are entitled to against every government on earth, and what no just government should refuse, or rest on inference." Many Federalists insisted that a bill of rights was unnecessary, because the Constitution gave the federal government no powers to infringe or interfere with individual rights. They noted as well the host of protections of individual liberty built into the proposed Constitution; as Alexander Hamilton insisted in The Federalist No. 84, the Constitution itself was a bill of rights. But the Federalists knew that they were vulnerable on this issue, and soon began to reconsider their position.

7. Amendment of Constitution -- too hard or too easy?

Federalists extolled Article V of the Constitution as embodying an amending process that was at once easier to use than Article 13 of the Articles of Confederation had been but also was calibrated to respect the Constitution's claims to be a fundamental law that should not be lightly or easily altered. Indeed, because Article V artfully blended national and federal elements, as James Madison noted in The Federalist No. 39, it was the final proof that the Constitution would not be a consolidating form of government nor one at the mercy of the states. (Also see this essay's discussion, in its concluding paragraphs, of the role of the amending process in the ratification controversy.)

8. grab-bag of issues

a. capital

Anti-Federalists chiefly in New England objected to the clause of the Constitution providing for the establishment of a new permanent federal capital, arguing that the enemies of the people would shelter themselves in a powerful citadel against the people's wrath. Federalists countered by pointing out the humiliating journeys of the Continental and Confederation Congresses from city to city during and after the Revolution; a new nation required the stability and permanence of a permanent capital.

b. religious tests

Again, mostly in New England, Anti-Federalists denounced the Constitution's ban on religious tests for voting or holding office as opening the door for a Jew, a Turk, or an infidel to become President or hold other major national offices. Federalists extolled this ban as one of the key rights-protecting clauses in the proposed Constitution.

c. slavery

Yet again, in New England, Anti-Federalists sometimes denounced the various clauses of the Constitution that protected slavery (though not mentioning it by name), whereas Federalists in the South praised these clauses as desirable safeguards for their peculiar institution.

Finally, we should note that the existence of the Constitution's amending process (codified, as already noted, in Article V) played a vital though not sufficiently appreciated role in the success of the Constitution in 1787-1788.

At the beginning of the ratification controversy, Anti-Federalists insisted that the Constitution had to be amended before they would even consider it -- and drafted long lists of such "previous amendments." By contrast the Federalists early on insisted that the Cosntitution had to be accepted or rejected as it was, without even discussing the possibility of amendments. Other Anti-Federalists were willing to consider or even to approve the Constitution -- but only if it were amended first. They proposed amendments that they deemed to be conditions of ratification, or "conditional amendments." In the Massachusetts ratifying convention, which met in January and February of 1788, moderate Anti-Federalists such as Samuel Adams and John Hancock and moderate Federalists such as William Cushing reached a middle ground: the Anti-Federalists would prepare a list of amendments that they would recommend to the first Congress to meet under the Constitution (should it be adopted by enough states to go into effect) and the Federalists pledged to work for such amendments in that Congress.

This device of "recommended amendments" became the key to the success of the proposed Constitution; all states following Massachusetts -- except Maryland -- proposed lists of recommended amendments accompanying their instruments or resolutions of ratification. These lists of recommended amendments were the raw material from which James Madison drew his list of proposed amendments that he offered in the House of Representatives of the First Congress on 8 June 1789.

APPENDIX:

Votes of state ratifying conventions, 1787-1790

Delaware (7 December 1787) (unanimous)

Pennsylvania (12 December 1787) (46-23) minority publishes separate list of previous amendments

New Jersey (18 December 1787) (unanimous)

Georgia (2 January 1788) (unanimous)

Connecticut (9 January 1788) (128-40)

Massachusetts (6 February 1788) (179-169) (recommended amendments)

Rhode Island (24 March 1788) town meetings reject Constitution, 2,708-237

Maryland (28 April 1788) (63-11)

South Carolina (23 May 1788) (149-73) (recommended amendments)

New Hampshire (21 June 1788) (57-47) (recommended amendments)

Virginia (25 June 1788) (89-79) (recommended amendments)

New York (26 July 1788) (30-27) (recommended/conditional amendments)

North Carolina I (2 August 1788) votes to postpone vote on Constitution, 185-84 proposes previous amendments

North Carolina II (November 1789) (194-77) (recommended amendments)

Rhode Island (May 1790) (34-32) (recommended amendments)

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