A People's History of the Supreme Court

by Peter Irons

  One of these compromises dealt with the number of states necessary to ratify the Constitution. The delegates resolved this question near the end of their deliberations. This was, they all recognized, an important and delicate issue, since the Articles of Confederation they were supposedly “revising” provided that amendments must be approved by unanimous vote of the states. It was almost certain that at least one state, and probably two or three, would vote in the Confederation Congress to reject the Constitution. Rhode Island, after all, had refused to send any delegates to Philadelphia, and its political leaders had denounced the whole notion of a new constitution. New York’s governor, George Clinton, also opposed the idea, and two of the state’s three delegates to the Philadelphia convention had walked out in July, leaving Alexander Hamilton with a voice but no vote.

  To lessen the risk of rejection, the delegates voted on August 31 that ratification by nine of the thirteen states “shall be sufficient” to establish the Constitution as binding among the ratifying states. During the debate on what became Article VII, motions were made to set the number at seven, eight, nine, ten, and thirteen of the states. Ironically, two delegates who refused to sign the Constitution helped to assure its final ratification. Edmund Randolph proposed nine as “a respectable majority” of the states, and George Mason agreed this was the “preferable” number. Compounding the irony, Madison and the other Virginia delegates voted against the motion, placing their state in the minority on this motion, which passed by a vote of eight states to three.

  The delegates also decided to bypass the Confederation Congress and submit the Constitution to conventions in each state. This was also a risky move, since they could not dictate to the states how to choose the members of these conventions. Madison urged this move, rather than allowing the state legislatures to vote on ratification, for the quite pragmatic reason that, as he put it, “the powers given to the general government being taken from the state governments, the legislatures would be more disinclined” to ratify the Constitution. Madison ended on a loftier note: “The people were in fact,” he proclaimed, “the fountain of all power, and by resorting to them, all difficulties were got over.”

  The difficulties of securing ratification by conventions of at least nine states would not easily be “got over,” as Madison well knew. The day after they adjourned, the Philadelphia delegates sent the Constitution to New York, on a stagecoach with Major Jackson, for submission to the Confederation Congress. Considering that the delegates had voted to bypass that body, this step was largely, as Madison confessed to George Washington, “a matter of form and respect.” Along with eight other signers, Madison was a member of Congress, and he hoped that it would send the Constitution to the states without delay. He also hoped to secure a resolution from Congress that endorsed the ratification of the Constitution by the state conventions.

  Madison accomplished his first goal, but only after his fellow Virginian Richard Henry Lee—who listened to George Mason’s objections after the convention’s veil of secrecy had been lifted—urged that the Congress amend the Constitution to add a bill of rights. Ironically, Madison, the man we now honor as “the Father of the Bill of Rights,” argued strenuously against Lee’s motion and prevailed. On September 28, 1787, the Confederation Congress-with eleven states voting—unanimously agreed that the Constitution “be transmitted to the several legislatures, in order to be submitted to a convention of delegates chosen in each state by the people thereof.” His fellow congressmen, however, frustrated Madison’s second goal, withholding any endorsement of the Constitution. After all, the document they sent to the states would replace their body with another, more powerful Congress, one that would wield enormous powers over the states they had been chosen to represent

  Two days after this vote, Madison wrote from New York to George Washington, who had returned to his Mount Vernon estate. The refusal of Congress to endorse the Constitution pained Madison. “A more direct approbation would have been of advantage” in securing ratification, he lamented. The man who accepted many compromises in Philadelphia was now afraid that too many compromises might doom his ultimate goal of a strong national government. “The country must finally decide,” he wrote to Washington, “the sense of which is as yet wholly unknown.”

  6

  “The Plot Thickens Fast”

  James Madison and other Framers of the Constitution feared that the document they had labored so hard to create might be ripped to shreds in the state conventions to which it was sent—without endorsement—by the Confederation Congress. Their deliberations in Philadelphia had been conducted behind closed doors and sealed windows, raising suspicions that the delegates had cornspired to impose an executive “monarchy” or a legislative “tyranny” on the people. Many delegates were regarded—quite rightly—as representatives of the old colonial aristocracy or the newer economic elite. The “Federalists” who dominated the Constitutional Convention were largely from the cities of the Eastern Seaboard, spread from Boston in Massachusetts to Charleston in South Carolina. More than half of the Framers were lawyers or had legal training, which raised more suspicions among those who distrusted “pettifoggers” in the courts. Only a handful worked the land as farmers, although many of the southern delegates owned or lived on plantations, where the land was plowed, planted, and harvested by slaves. In short, the Framers had little in common with the backcountry farmers, small-town tradesmen, and urban “mechanics” who made up a majority of the American population in 1787. To be more correct, the white, male population that owned enough property or paid enough taxes to vote in most states.

  Factors that might seem to hobble the Framers and their supporters in the ratification debate also became sources of political strength. First—and very important in their campaign for the Constitution—the Framers took the inititive and adopted the “Federalist” name for themselves. This left their apponents with the weak and negative label “Antifederalist,” despite the efforts of some to call themselves “Federal Republicans” or some more appealing name. Second, the Federalists enjoyed the support of most of the country’s newspapers, which were largely published in cities like Boston, New York, and Philadelphia. Access to the media has always been a crucial factor in political success. Third, the Federalists had the advantage of having a concrete proposal—a detailed Constitution-—while their opponents had nothing to offer except criticism. The text of the Constitution was widely published and avidly read by those who voted for delegates to the state ratifying conventions. The Antifederalists, among them men of great oratorical and rhetorical skill, made speeches and wrote pamphlets that presented their case with logic and polish. But their only alternatives to the Constitution were amendment and delay.

  The Federalists moved quickly to capitalize on their advantages. Most important, they only needed the support of nine states, the number proposed for ratification by Edmund Randolph. In the first three months after the Confederation Congress sent the document to the states, conventions in three of the smaller states voted unanimously for ratification. Delaware took first place in the race (its license plates now boast “The First State”) on December 7, 1787. John Dickinson and George Read, two of the most active and articulate delegates in Philadelphia, persuaded the Delaware convention to ratify by a vote of thirty to zero. Led by James Paterson, who swallowed his states’ rights objections nd signed the Constitution, the New Jersey convention ratified by a vote of thirty-eight to zero on December 18. Georgia, the most southern state and probably the most in need of national protection to fend off Indian attacks and predatory land speculators, ratified on the last day of 1787 by a vote of twenty-six to zero. George Washington said of Georgia that “if a weak state with the Indians on its back and the Spaniards on its flank does not see the necessity of a general government, there must I think be wickedness or insanity in the way.”

  The victories in these small states produced a welcome momentum for ratification. But the larger st
ates posed greater problems for the Federalists. The first major obstacle was Pennsylvania, which seemed on the surface an easy state to persuade. After all, the state’s most eminent citizen, Benjamin Franklin, had signed the Constitution and urged its adoption before the state legislature. Another of the Framers, James Wilson, helped to draft the Pennsylvania constitution and was widely respected around the state. But the Constitution’s supporters faced two serious problems in Pennsylvania. First, although Federalists controlled the one-house state legislature, the Antifederalist bloc—mostly from the western and rural areas—held more than a third of the sixty-nine seats. If the Federalists could not muster a quorum of forty-six members, their opponents could block a vote to send the Constitution to a state convention. Second, the ratification debate, waged primarily in the state’s newspapers, had become ferocious and fevered.

  The Federalists solved the first problem with strongarm tactics. When the roll call in the legislative session, called to propose a ratification convention, turned up only forty-four members, the Pennsylvania Assembly sent its setgeant at arms to round up at least two of the Antifederalist members, who had boycotted the meeting to prevent a vote they knew they would lose. Surrounded by a self-appointed posse, the sergeant canvassed the taverns and lodging houses near the State House and finally located two of the boycotters, James M’Calmont and Jacob Miley. A later report by the dissenting members described their treatment by the Federalist posse: “Their lodgings were violently broken open, their clothes torn, and after much abuse and insult, they were forcibly dragged through the streets of Philadelphia to the State House, and there detained by force.” Federalist members held M’Calmont and Miley in their seats while the Assembly—with its press-gang quorum—voted forty-six to twenty-three to hold selections for a ratification convention. This was hardly a victory for democracy, but neither side in the ratification debate played by the rules of genteel debate. For them, the stakes were too high.

  The rhetoric of the debaters reached equally violent levels. Many of those who penned essays in the newspapers employed pseudonyms to conceal their identity, perhaps fearing the wrath of another partisan mob. Writing under the name “Centinel,” one Pennsylvania Antifederalist argued in the Independent Gazetteer of Philadelphia that the “most perfect system of local government in the world” would be replaced under the Constitution by “the supremacy of the lordly and profligate few.” Centinel could see “no alternative between adoption and absolute ruin.” He even insinuated that “the weakness and indecision attendant on old age” had influenced Benjamin Franklin to sign the Constitution.

  These charges against his dear friend, and the publication in the Pennsylvania Packet of George Mason’s objections to the Constitution, prompted James Wilson to fight back. He was particularly stung by criticism that the Constitution did not include a bill of rights, which the Pennsylvania charter provided in detail. Wilson argued in the state ratification debate that “such an idea never entered the mind” of the Framers. “To every suggestion concerning a Bill of Rights, the citizens of the United States may always say, ‘We reserve the right to o what we please.’ ”

  Remarks like these did not please those who agitated for a constitution that would provide a federal bill of rights. Wilson upset his “democratic” critics by arguing that it was “the nature of man to pursue his own interests in preference to the public good.” However accurate, this statement enraged one writer, who claimed that Wilson “has always been tainted with the spirit of high aristocracy; he has never been known to join in a truly popular measure, and his talents have ever been devoted to the patrician interest.”

  Despite these attacks on his character, Wilson prevailed in the Pennsylvania convention, which ratified the Constitution by a vote of forty-six to twenty-three on December 12, 1787. By the end of that fateful year, four of the nine states required for final ratification had given their assent to the Constitution. But ratification by three of the larger states—Massachusetts, Virginia, and New York—lay ahead. Without the approval of all three, the Constitution had little chance of success. It would be possible, of course, to secure final ratification with the votes of smaller states. But the ultimate goal of the Federalists—the creation of a powerful national government—would be frustrated if even one of these crucial states rejected the Constitution. Political reality, far more than principle, dictated the Federalist strategy of securing unanimous support in the state conventions.

  The Massachusetts convention posed more problems for the Federalists. The town meetings that elected delegates sent a large number of farmers to Boston, and the western part of the state still harbored resentment at the politicians—many of them Federalists—whose tax laws had fueled Shays’ Rebellion. And, in contrast to Pennsylvania, the Massachusetts Antifederalists were well organized, boasting the leadership of Elbridge Gerry, the renowned patriot and pamphleteer Sam Adams, and men like James Winthrop, James Warren, and Benjamin Austin, whose family roots went deep in the state’s rocky soil. The Antifederalists also offered their own proposal: if the convention did ratify the Constitution, it should attach amendments to secure a federal bill of rights.

  Passions ran high as the Massachusetts convention began on January 9, 1788. The delegates first elected Governor John Hancock as president, but Hancock—who looked at the political weathervane and saw it swinging wildly—pled an attack of gout and stayed home until the convention’s final days. The debate in Massachusetts, which the public followed avidly in the state’s newspapers, revolved around Antifederalist calls for a bill of rights. Writing under the name “Agrippa,” one opponent published sixteen essays against the Constitution in the Massachusetts Gazette. “There is no bill of rights, and consequently a continental law may control any of those sacred principles” the state’s constitution provided its citizens, Agrippa complained. The Federalist answer to this argument, made at the convention by Joseph Varnum, did little to mollify the opponents. The powers granted to Congress in the Constitution, Varnum claimed, were the sole extent of federal power; therefore, a bill of rights as a check on these powers would be superfluous. The problem with this response, as Antifederalists quickly noted, lay in the provision which gave to Congress the additional power “to make all laws which shall be necessary and proper” to implement the specified powers, which included a broad authority to provide for the “general welfare of the United States.”

  Antifederalists voiced their fears that Congress could use these clauses to ride roughshod over the states. Amos Singletary, a farmer from Worcester County, spoke bluntly: “These lawyers and men of learning, and moneyed men that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pill, expect to get into Congress themselves. They expect to be the managers of the Constitution, and get all the power and all the money into their own hands. And then they will swallow up us little fellows.”

  This poor-mouthing by a longtime member of the state legislature provoked a fellow farmer, Jonathan Smith of western Berkshire County. “I am a plain man,” he replied to Singletary, “and get my living by the plough. I am not used to speak in public, but I beg your leave to say a few words to my brother ploughjoggers in this house.” Smith alluded to the “anarchy” of Shays’ Rebellion, and the “cure” he found in the Constitution. “l got a copy and read it over and over,” he continued. “I formed my own opinion, and was pleased with this constitution.” Smith gestured toward Singletary. “My honorable old daddy there won’t think that I expect to be a congressman and swallow up the liberties of the people. I never had any post, nor do I want one. But I don’t think the worse of the constitution because lawyers and men of learning and monied men are fond of it.”

  Exchangers like these may not have swayed votes, but they revealed the views that each side in the ratification debates had of the other. Those in the middle recognized that compromise was necessary to avoid a bitter conflict. William Heath, a moderate Federalist,
suggested that the convention “ratify the Constitution, and instruct our first Members of Congress, to exert their utmost endeavors to have such checks, and guards provided as appears to be necessary” to the delegates. Talk of compromise brought Governor Hancock from his sickbed to the convention, where he asked to “hazard a proposition” that would bridge the differences. Hancock quickly drafted nine proposed amendments—he probably had them ready—and put them before the convention. The first, and most important, provided “that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.”

  The response to Hancock’s move exceeded his expectations. Sam Adams, perhaps the most respected Antifederalist, rose to announce that he now supported ratification. The delegates then voted by the narrow margin of 187 to 168 to ratify the Constitution, directing the state’s future congressmen to “exert all their influence” in pressing for the amendments Hancock had drafted. As a reward, the Federalists promised to support Hancock’s reelection as governor. Watching from Mount Vernon, George Washington expressed his qualified relief. “The decision of Massachusetts would have been more influential had the majority been greater,” he wrote, “and the ratification unaccompanied by the recommendatory Act. As it stands, however, the blow is severely felt by antifederalists in the equivocal states.”