During the final weeks of the Constitutional Convention in Philadelphia, in late August and early September 1787, the text of the proposed new Constitution of the United States of America was almost finished. What still had to be decided was how to complete the job. What government the United States had at the time was provided by the instrument called the Articles of Confederation, and its chief institution was the Continental Congress. The Constitutional Convention had been established by the Continental Congress and derived all of its authority, such as it was, from the Congress.
The new Constitution, now about to be engrossed on four pages of parchment, would be transmitted to the Congress as a “report,” at which point the Convention would cease to exist and other assemblies would begin to control its fate. The question they addressed in those last weeks was how to make the transition from parchment to power.
If five obstacles could not be overcome, the Constitution would be a dead letter and all of their hard work, not to speak of the safety, prosperity, and even existence of the United States, would be lost.
What were these five obstacles? First, the amending provision in the Articles of Confederation read as follows: “nor shall any alteration at any time hereafter be made . . . unless such alteration be agreed to in a congress of the United States, and be afterwards confirmed by the legislatures of every state.” Approval by the Congress and all of the state legislatures was unquestionably required.
Second, the Congress had instructed the Convention that it was being established “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions.” The Convention delegates had gone far beyond the authorized purpose “of revising the Articles of Confederation”; instead they had proposed an entirely new form of government.
A third obstacle to ratification was the character of the Continental Congress itself. The quality of most of the members of Congress was not high. They were a disheartened and disgruntled bunch, powerless to raise revenue or enact and carry out decisive policies, going weeks on end without being able to muster a quorum, but with enough resolve left in those so disposed to make a stab at obstructing ratification. The question was whether this assembly of petty men could approve a new plan that would probably end their political careers and put the Continental Congress out of business.
The state legislatures presented a similar problem. The delegates acknowledged that approval by all thirteen states was required by the Articles of Confederation, but they also knew that unanimous approval was impossible. Several states had already demonstrated their opposition to the Constitution. Rhode Island had refused to send delegates to the Constitutional Convention; delegates from New York and Maryland had walked out in protest; and Virginia’s legislature was dominated by Patrick Henry, the fiery orator and leading Anti-Federalist. Further, there was reason to think that state legislators, human nature being what it is, would be inclined to oppose it, because the Constitution would transfer so many of their legislative powers to the new Congress. Would it be prudent to rely on state legislators to vote to diminish their own powers?
Finally, three prestigious delegates — Elbridge Gerry of Massachusetts, Governor Edmund Randolph of Virginia, and Colonel George Mason, also of Virginia — had announced they would not sign the Constitution. They called for changes that the Convention had discussed and voted down. If the public saw there were opponents of the Constitution even among the members of the Convention, it would have an adverse impact on the reception of the document once it emerged from the Convention. This was the fifth obstacle: dissension within the Convention itself.
The delegates addressed these five obstacles with stunning audacity. The solutions they devised can be found in their “report” to Congress, tucked away and barely visible, in the Constitution itself and in the accompanying Resolution of the Convention.
The original proposal stressed that the Resolution should commence with these words: “That the preceding Constitution be laid before the United States in Congress assembled for their approbation,” but after impassioned debate, they voted to delete the words “for their approbation.” Further, they decided, again after heated disagreement, not to take a chance with the state legislatures, but to bypass them and seek state approval from popularly elected conventions in each state.
The Congress could transmit or refuse to transmit the Constitution to the states, but that was the only choice they were offered — take it or leave it. The legislatures were asked to call elections to elect delegates to ratifying conventions, but they were offered no other role. Thus, the Convention dealt with these two obstacles by adroitly dodging them.
The resolution of a third obstacle is to be found in the Constitution itself, in Article VII, the last and least known Article in the Constitution of the United States. Experts in constitutional law often do not know what is in Article VII — and there is no reason why they should. It has had no constitutional significance since ratification. Article VII has no sections or clauses or paragraphs; it is just one simple declarative sentence, twenty-four words in all. It reads as follows:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Just as there is no indication in the Convention’s Resolution that the words “for their approbation” have been deleted, or that the state legislatures have been eliminated from the ratification process in favor of ratifying conventions more likely to be favorably disposed, so in Article VII there is no mention that this nine-state provision violates the requirement for approval by all thirteen states.
In the Convention, several delegates were outraged by this unlawful evasion. For example, Elbridge Gerry denounced
the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. If nine out of thirteen can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.
The Convention started out with fifty-five appointed delegates. Some never showed up, some left during the proceedings. There were forty-two present at the end, with thirty-nine signing, representing twelve states. Thus sixteen signatures out of fifty-five were missing, and yet the enacting clause was cleverly worded to make it possible to include the word “unanimous.” It reads:
Done in Convention by the Unanimous Consent of the States present . . . IN WITNESS whereof We have hereunto subscribed our Names.
This was followed by the thirty-nine signatures, grouped by states. Pennsylvania had eight signatures, but many states had no more than two. Alexander Hamilton signed alone for New York; there was no mention of the two other New York delegates who had left early in protest, nor any mention of the sixteen delegates, almost thirty percent of the original fifty-five, whose names were missing from the “unanimous” signing. One has to acknowledge, and even admire, the political skill that produced this double result, easing the way for delegates who had reservations to sign, while at the same time, making it possible to use the word “unanimous” which they all considered to be so powerful and necessary.
The signing took place on September 17, 1787, and the “report” — consisting of the Constitution, the Resolution setting out the recommended ratification procedure, and a letter of transmittal from George Washington as President of the Convention — was dispatched to New York the next day. Once the report was in their hands it was clear that many members of the Continental Congress viewed it unfavorably, just as had been predicted, some because of the procedural violations, others because of the substance of the new plan of government. Why then did the Congress do exactly as asked by the Convention and, within a week, vote, unanimously, to send the Constitution on to the state legislatures to be submitted to conventions chosen by the people? Why did they accede to ratification by only nine state?
First of all, delegates to the Convention who were also members of Congress rushed to New York and took their seats to vote on their own handiwork. Madison provided the decisive vote in the Virginia delegation. Richard Henry Lee, a leading opponent of the Constitution from Virginia, was offended by the dual role of Convention delegate and Congress member. He had refused to serve as a delegate to the Convention on the principled ground that being a member of Congress, where the plan of the Convention must be approved, there appeared an inconsistency for members of the former to have session with the latter, and so pass judgment at New York upon their opinion at Philadelphia.
By Lee’s count, “so many members” of the Convention came to Congress “that the votes of three states being of them, two states divided by them, and many others mixed with them, it is easy to see the Congress could have little opinion upon the subject.”
When the complaint was voiced that the Convention had gone far beyond its instructions, Madison took the lead in responding. It was true, he said, that their instructions were to revise the Articles of Confederation, but the instructions went on to describe the kind of “alterations and provisions” they wanted; they were to be such as would “render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” The opinion of the Convention was that you couldn’t achieve that exalted end with those limited means. In such a case, Madison argued, the rule is that the less important, in this case the means, must give way to the more important, in this case the end of achieving a “federal Constitution adequate to the exigencies of Government and the preservation of the Union.”
Perhaps the most important factor in moving the Constitution forward was the weakness of Congress compared to the strength and prestige of the Constitutional Convention. The Continental Congress was impotent. It had no power to raise revenue; every year it voted requisitions which the states ignored. They rarely had the required quorum of seven states in attendance; in the six weeks prior to September 20, when the Constitution arrived in New York, there had not been a single day when they could muster a quorum. Once they had voted, on September 28, to transmit the Constitution to the states, attendance began to dwindle, and two weeks later they were once again unable to gather a quorum. This assembly could not stand up to the vigor, thrust, and standing of the Constitutional Convention.
The Constitution thus moved past one obstacle after another to face the state legislatures. Even though they would not be the ones to vote on ratification, each legislature had to set the date and the rules for electing delegates to its ratifying convention. At first it was as if a race had been declared, with supporters of the Constitution organizing quickly and effectively. The Congress had barely voted to transmit the Constitution when several state legislatures voted to call elections for delegates. In fact, one state didn’t wait at all. The Pennsylvania legislature met in the same building as the Constitutional Convention; they had a pirated copy of the Constitution before the official copy reached New York. The legislature was about to end its session and the pro-Constitution majority wanted to act before adjournment. The anti-Constitution minority sought to foil them by staying away, thus depriving them of a quorum. A mob was organized to drag two members from their rooming house back to the assembly chambers, the sergeants-at-arms locked the doors to prevent escape, and the legislature voted to hold a convention on November 20. This turned out to be a costly victory, however, because news of the strong-arm tactics spread, and resentment helped to fuel opposition in other states yet to ratify.
The haste in Pennsylvania and other states was effective. Support for the Constitution was concentrated in cities and towns along the coast in almost every state; opponents of the Constitution were scattered in rural areas away from the coast. Travel and communications made it much easier to organize and rally the supporters on short notice. The less time allowed before the elections, the better for the cause of ratification. The Pennsylvania election results gave the Federalists a two-to-one majority in the convention. When they voted on December 12, not one vote changed.
Delaware, starting later than Pennsylvania, moved faster, and ratified, unanimously, on December 7. New Jersey ratified ten days later, also unanimously; Georgia two weeks later, also unanimously; and a week later, Connecticut. And so, in less than four months, five of the nine states needed had held statewide elections and chosen delegates overwhelmingly committed to ratification. In these five conventions, more than 80 percent of the delegates, popularly elected, cast their votes for ratification.
But the trend was not to continue. In these five early conventions, the outcome was predetermined by the popular elections. The delegate candidates announced their position, were elected on that basis, and did not change. In these early conventions, not one vote was changed by the deliberations. The Federalists were prevailing because they were better organized, had better speakers and writers to influence the elections of delegates, controlled the press and made good use of it, and moved too fast for the opposition to be able to organize. In Massachusetts, the sixth state, the opponents were able to make a stand for the first time.
The easiest states had ratified; the hardest lay ahead. Everyone knew that the Constitution would not be truly established, even if nine should ratify, without the biggest and richest states, Massachusetts, New York, and Virginia. The outcome in Massachusetts would have a powerful influence on the conventions in the remaining states, especially New York and Virginia. If the Constitution lost in Massachusetts, it would almost certainly not be ratified.
Massachusetts, the scene of Shays’s Rebellion just a year earlier, was politically polarized in January 1788 when the convention began. The state was sharply divided, rich against poor, cities and towns against rural areas, creditors against debtors, and so on. The dominant statewide issues were oppressive tax collection, widespread mortgage foreclosures, issuance of paper money — the kind of issues that tend to divide violently the few and the many. That division was the context of the elections for delegates to the ratifying convention. The coastal cities and towns elected only supporters of the Constitution; the rural areas, away from the coast, elected only opponents of the Constitution, and the opponents won a majority of the seats in the convention.
If the convention had voted on ratification of the Constitution as a whole, in the first day or two, the nays would have prevailed; but the Federalists won agreement to consider the Constitution paragraph by paragraph, which gave them time to seek a way out. The obstacle was not an objection to this or that part of the text of the Constitution, but rather suspicion on the part of the poor, the debtors, the less well educated, that the campaign to impose this new plan of government was part of a plot against them. As Rufus King said, their real objection was not to the Constitution, but to the men who made it. They did not trust a system produced by the educated, the rich, the successful, the powerful.
The decisive turning point was winning over the state’s two most influential leaders, John Hancock, the governor of Massachusetts and president of the convention, and Samuel Adams, the president of the state senate. Both had reservations about the Constitution, but they had been elected to the convention as declared “neutrals” on the question of ratification.
There are stories about the tactics used to bring these two prominent patriots to support ratification. In a mass meeting in support of the Constitution organized in Adams’s home district, a petition demanding that he support ratification was drawn up and delivered to him in person by none other than Paul Revere.
Hancock was visited by a delegation of Federalists who offered him glittering prospects if he would lead Massachusetts to ratify the Constitution. His opponents promised support in his next campaign for governor; further, they would support him for vice president under the new Constitution if George Washington was a candidate for president; and, perhaps most enticing, if Virginia did not ratify, and Washington was therefore not eligible for the presidency, they would support him for president of the United States.
There are disputes about who worked out the formula Hancock presented to the convention, but Hancock presented the package as all his own. It was a novel solution, a major breakthrough that almost certainly saved the Constitution from ultimate defeat.
Hancock stepped down from the chair and from the floor he proposed that the convention “assent to and ratify the said Constitution” without conditions, and simultaneously recommend a set of amendments to the First Congress, to be enacted according to the amending provisions in Article V of the Constitution. Also, the convention should “enjoin” their future congressmen “to exert all their influence, and use all reasonable and legal methods to obtain ratification” of the proposed amendments. His amendments dealt with such things as protecting states’ powers, restricting congressional powers over elections and taxation, prohibiting monopolies, requiring grand jury indictments, limiting the powers of federal courts, and some lesser matters. None of them touched on subjects we might have expected, such as religion, press, speech, assembly, or petition.
The distinctive feature of Hancock’s move was that these amendments were being offered not as conditions for ratification but only as recommendations. In putting the question to a vote, Hancock uttered decisive words: “I give my assent to the Constitution in full confidence that the amendments proposed will soon become a part of the Constitution.” Those words, “in full confidence that” instead of something like “on condition that,” made the difference between a disguised rejection of the Constitution and a real, if begrudging, acceptance of it.
With Hancock back in the chair and Adams supporting his move from the floor, enough votes were changed to win ratification by the slim margin of nineteen votes out of 355 cast, 187 to 168. On February 6, Massachusetts became the sixth state to ratify, using a formula, unconditional ratification accompanied by recommended amendments, that was used by just about every state ratifying convention thereafter.
In April and May, Maryland and South Carolina ratified, both by comfortable margins, and now, with eight ratifications, the stage was set for the decisive conventions in Virginia and New York. The Virginia legislature, led by Patrick Henry, had in fact timed its convention for the beginning of June, in the expectation that eight states would have ratified by then, and thus Virginia’s decision, up or down, would decide the fate of the Constitution.
The Virginia convention was unlike the Massachusetts convention in one important respect; both sides were represented by the most able men in the state. In other ways the two conventions were similar. Just as Shays’s Rebellion marked the division within the state and convention, so an issue peculiar to Virginia, navigation on the Mississippi, divided these delegates. Virginians feared a treaty would be agreed to with Spain to close the Mississippi River to American shipping, with devastating consequences for many in the state. Navigation on the Mississippi was the main reason why George Mason, in the Constitutional Convention, was insistent on a constitutional provision that navigation laws must have a two-thirds congressional majority for passage.
Mason and Patrick Henry used this local issue to argue for amendments that would restore powers to the states and diminish what they considered to be excessive powers vested in the federal government under the new plan. Madison used the same local issue to make the opposite argument. He contended that navigation on the Mississippi was endangered not by too much federal power but by national weakness, too little power in the hands of an impotent Congress under the Articles of Confederation. The remedy for a stronger defense of Virginia’s interests was to strengthen the national institutions, to give them the power to deal effectively with a nation like Spain. Virginia’s interests and the national interests coincided, and both would be served by ratifying the Constitution.
When the Virginia legislature voted to hold elections for the state ratifying convention, they adopted a resolution in favor of a second constitutional convention, directing the Governor, Randolph, to transmit this act to the other governors, to be laid before their legislatures, asking for their cooperation. This letter was mailed to Governor Clinton of New York on December 27, 1787, but for some mysterious reason it took more than two months to reach him. Had it been received sooner, the New York legislature would almost certainly have agreed to cooperate and a second constitutional convention would then have been inevitable.
Madison and Washington were concentrating their attention on Randolph, persuading him to reconsider his demand for a second convention. The circumstances were now greatly changed, with eight states having ratified. Randolph became convinced that there was now only one issue, Union or no Union, and on that issue he became a determined spokesman for unconditional ratification. On the floor of the ratifying convention, with his arm upraised, he said, “I will assent to the lopping off of this limb before I assent to the dissolution of the Union.”
Governor Clinton waited two more months, until May, to respond to Randolph’s delayed letter of December 27, perhaps timing it to arrive when the Virginia convention was nearing a decision. When Randolph received it, he waited several days to present it to his Executive Council at their next scheduled meeting, to get their opinion whether Clinton’s letter was a public or private communication. The Council, naturally, decided it was an official communication, and should be presented to the Virginia legislature, which would, in turn, communicate to the ratifying convention that New York agreed to cooperate with Virginia in the calling of a second constitutional convention.
Randolph had it delivered to the legislature, where the envelope sat unopened. It just so happened that Patrick Henry was scheduled that day to make his climactic speech to the ratifying convention, urging them not to ratify before amendments were obtained in a second constitutional convention. So many of the legislators went over to the convention to hear Henry’s speech that there wasn’t a quorum in the legislature to act on, or even look at, Clinton’s letter, which many authorities think would have been more persuasive in the cause of prior amendments than Henry’s speech. Clinton’s letter was read to the Virginia legislature two days after the convention had ratified, unconditionally, using the Massachusetts formula, by the narrow margin of eighty-nine to seventy-nine.
The decisive switch was made by Governor Randolph, and the decisive argument was that a ninth state was needed to prevent the dissolution of the Union. Unbeknownst to the Virginia delegates, New Hampshire had ratified four days earlier, also by a ten-vote margin, fifty-seven to forty-seven, making them the ninth state and Virginia the tenth.
Patrick Henry’s final remark in the convention was a brief masterpiece of multiple meanings. He said, “My head, my hand, and my heart shall be at liberty to remove the defects of the system in a constitutional way,” thus acknowledging defeat, promising to persevere in seeking amendments, and accepting the rule of the Constitution, all in one sentence.
The Virginia convention was still in session, with the outcome uncertain, when the New York convention opened with a two-to-one Anti-Federalist majority.
Hamilton made several masterful moves as the Federalist leader. First, the Federalists joined in electing Clinton, unanimously, as president of the convention, thus minimizing his participation in debate. Second, they proposed, and the Anti-Federalists agreed, that there would be no vote until the Constitution had been discussed clause by clause. What Hamilton had in mind was to delay as long as possible a decision by the overwhelming majority against him, in hopes that word would come that Virginia, or New Hampshire, or both, had ratified, which is, of course, what happened within two weeks.
The Anti-Federalist majority was not monolithic, varying in views and especially in intensity. They had the votes to defeat unconditional ratification, but they did not have a majority in favor of outright rejection of the Constitution. What they sought, unsuccessfully, was some way to ratify on condition that their long list of amendments would be a part of the Constitution, a proposal that the Federalists called “a gilded rejection.” When that failed, their next motion was to ratify while reserving the right of New York to withdraw from the Union if Congress did not call a convention within four years.
Hamilton sought Madison’s opinion whether this latest Anti-Federalist proposal would be acceptable. The next day he read to the convention Madison’s reply, that it would not be accepted by Congress as a valid ratification:
Such conditional ratification would not make New York a member of the Union. The Constitution requires an adoption in toto and forever. The idea of reserving a right to withdraw was started in Richmond, and was considered a conditional ratification, which was itself abandoned as worse than a rejection.
The motion was voted down, with even Melancton Smith, the Anti-Federalist floor leader, voting against the motion he had originally made.
Smith now changed his position and announced himself in favor of ratification in the Massachusetts form. “My great object,” he explained, “is to procure . . . good amendments,” and with the Constitution already ratified by ten states, the only way to participate in getting the amendments they sought was by being part of the Union. It was the changed circumstances that now required New York to ratify. Hamilton, too, thought the switch of the Anti- Federalists was caused by events, not arguments: “Our arguments confound, but do not convince — Some of the leaders however appear to me to be convinced by circumstances.”
On July 26, more than a month after convening, the New York delegates ratified by a margin of three votes, using the Massachusetts language, “in full confidence” that their amendments would be considered. But though the Anti-Federalist majority lost, they were not beaten. They were able to exact a price for their votes. The convention resolved the next day, “by unanimous order of the New York Convention,” to send a circular letter, signed by Governor Clinton, to the governors of all the states, urging the calling of a second constitutional convention. We can easily imagine the terms of the trade involved in obtaining Anti-Federalist votes for ratification, in exchange for all of the Federalist votes, including even Hamilton’s, in favor of Clinton’s call for a second constitutional convention.
Eleven states had ratified, the Constitution was established, the battle was over. What explains the ratification?
The answer emerges from the story I have told. Even the most critical opponents of ratification, like Patrick Henry and George Clinton, were not against a new constitution “adequate to the exigencies of Government and the preservation of the Union,” to use the wording of the Continental Congress. They were against ratification of this Constitution without prior amendments. The Anti-Federalist objective was to amend first, then ratify. In many states there was no opposition at all to ratification, but in states where there was some, it always came down to this one issue, prior or subsequent amendment. The Anti-Federalists did not seek, and could not achieve, complete rejection of the Constitution.
Moreover, all of the leaders, on both sides, were committed to the principles of political liberty. There were no monarchists, no oligarchists, no proponents of any kind of nonrepublican, nonconstitutional regime. All were devoted to establishing a constitutional republic founded on the principles of the primacy of rights and rule by the consent of the governed. They agreed about the end they sought. They differed only about the best way to achieve it.