by Peter Irons
Another three of the smaller states were not equivocal. By a vote of 128 to 40, Connecticut had ratified the Constitution a month before Massachusetts. Maryland held its convention in April 1788. The delegates listened for hours to the vituperative Antifederalist railings of Luther Martin, who had walked out of the Philadelphia convention in disgust. George Washington’s secretary wrote that Martin “is a man whose character is so infamous that anything advanced by him against the Constitution, would where he is known, bias the people in favor of it.” This proved an accurate prediction. After Martin sat down, the delegates voted for ratification by a tally of sixty-three to eleven. South Carolina followed in May by a vote of 149 to 73, although it joined Massachusetts in proposing amendments that would reserve to the states the powers not granted to Congress.
Five days after South Carolina became the eighth state to ratify the Constitution, George Washington wrote to his French friend the Marquis de Lafayette: “The plot thickens fast. A few short weeks will determine the political fate of America for the present generation, and probably no small influence on the happiness of society through a succession of ages to come.” Although his prose was portentous, Washington did not exaggerate. Ratification by any of the remaining five states was far from certain. From New Hampshire to North Carolina, Antifederalists were determined to fight to the finish.
Washington hoped, of course, that Virginia would provide the crucial ninth vote for the Constitution. He remained aloof from the fray, and did not stand for election to the state convention, which opened in Richmond on June 2, 1788. Each county elected two delegates, and the western regions of Kentucky and Trans-Allegheny (then part of Virginia) sent sixteen, for a total of 170. A tally by a Federalist delegate showed eighty-five in his camp, with sixty-six Antifederalists and three “doubtful.” The leanings of the western delegates were unknown, but they were the kind of “backwoods” men who in other states had opposed ratification. One Andfederalist delegate wrote that “both sides are contending” for their votes “by every means in their power.” James Madison confessed to Washington that the outcome in Virginia “may depend on the Kentucky members; who seem to lean more against than in favor of the Constitution.”
The delegates in Richmond included some of the most illustrious men in American political and judicial history. Among the Federalists were James Madison; George Wythe, the state’s chancellor and its most noted lawyer; and John Marshall, a brilliant young lawyer who everyone knew was destined for national prominence. Their opponents were equally distinguished. George Mason had published his objections to the Constitution in a widely read pamphlet, Edmund Randolph was the state’s governor, and Richard Henry Lee was a respected member of the Confederation Congress. These eminent men, however, had little of the luster of Patrick Henry, the golden-tongued orator who stirred the country to revolution in 1775 with his cry, “Give me liberty, or give me death!”
The former revolutionary was now a wealthy man, rich in landholdings, and he no longer spoke for the ordinary people he had spurred to fight the British. Ironically, Henry accused the Federalists of speaking for the people without their consent. The preamble to the Constitution began with the words “We the people of the United States” and spoke of their resolve to “form a more perfect union” of the states. Henry, whose speeches consumed more than fifth of the convention record, vented his anger on Madison and the other Philadelphia delegates. “Who authorized them to speak of We the people, instead of We the states,” he demanded to know. “The people gave them no power to use their name.”
Henry waved a rhetorical copy of the Declaration of Independence before the delegates. The document “which separated us from Great Britain,” he declaimed, had asserted the rights of the people against arbitrary governmental power. But the Constitution protected none of these rights. “The rights of conscience, trial by jury, liberty of the press,” he thundered, “all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change.” Echoing his stirring call to rebellion against the British, Henry urged the delegates to rebel against the Federalists. “Liberty, greatest of all earthly blessings—give us that precious jewel, and you may take everything else!”
Despite his rhetorical excesses, Patrick Henry made a point that appealed to many delegates. Virginia had enshrined in its constitution in 1776 a Declaration of Rights, drafted by George Mason, that protected rights of religion, speech, and press. James Madison, who sat quietly during Henry’s lengthy speeches, listened carefully and decided to take the wind out of his opponent’s bellowing sails. Madison, who had publicly opposed any amendments to the Constitution as a condition of ratification, conferred with Edmund Randolph and proposed a compromise. If Madison agreed to amendments, would Randolph support ratification? The two former adversaries in Philadelphia reached agreement in Richmond. Speaking in quiet tones, Randolph told the convention that he would support the Constitution if the delegates asked Congress to adopt a bill of rights.
Randolph’s defection to the Federalist camp enraged Patrick Henry. “It seems to me very strange and unaccountable,” he said with a glare at Randolph, that the Constitution “which was the object of his execration, should now receive his encomiums. Something extraordinary must have operated to produce so great a change in his opinions.” The soft-spoken Randolph could not contain his outrage. “I disdain his aspersions and his insinuations,” he shot back at Henry. “His asperity is warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship: and if our friendship must fall—let it fall, like Lucifer, never to rise again.” Henry was so incensed by his comparison to the devil that he challenged Randolph to a duel, but tempers soon cooled and the two men never cocked their pistols.
Just before the Virginia convention voted to ratify the Constitution, by the close vote of eighty-nine to seventy-nine, Patrick Henry conceded defeat in a gracious speech. “If I shall be in the minority,” he said, “I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen.” Henry spoke wistfully of his revolutionary efforts. He expressed the hope “that the spirit which predominated in the revolution is not yet gone, nor the cause of those who are attached to the revolution yet lost. I shall therefore patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness, of the people.”
Patrick Henry lost the battle in Virginia, but he won the war he waged against the Federalists. James Madison agreed, as a condition for ratification, to press the new Congress to adopt a bill of rights. With that concession, the debate over the Constitution shifted from the “positive” powers of Congress to the “negative” limitations that would protect “the people” from their federal lawmakers.
As it turned out, Virginia was not the ninth state to ratify. That honor went to New Hampshire, whose convention first met in February 1788. When the state’s Federalists realized they had been outvoted in the town meetings that elected delegates, they pulled all their parliamentary strings and succeeded in postponing the convention until June 17, two weeks after Virginia began its sessions. By that time, the New Hampshire Federalists had flexed their political muscles—promising federal offices to their opponents—and they prevailed on June 21 by the narrow margin of fifty-seven to forty-seven. New Hampshire bested Virginia by four days in the race for ratification, but neither side in this political battle could claim victory until New York decided to adopt or reject the Constitution.
Without New York, there could be no United States. Not only in population but in commerce and finance, this was the largest state, the linchpin of the union. Alexander Hamilton, New York’s sole delegate in Philadelphia after Robert Yates and John Lansing departed, turned his immense talents and energy to the ratification campaign. He had founded the Federalist Party in New York before the Constitutional Convention, and its members represented the state’s land
owning, mercantile, banking, and legal interests. Governor George Clinton headed the Antifederalist forces, which drew support—as in most states—from farmers and “upstate” voters.
Hamilton turned the momentum for ratification to his advantage, maneuvering to delay the state convention until adoption of the Constitution seemed assured. This put the burden on his opponents to either accept or destroy the union. He also waged a masterful propaganda campaign, through the eighty-five essays that were published in the New York press under the name “Publius.” Hamilton recruited John Jay, who became the first Chief Justice of the United States, and James Madison to help write the essays, which the authors churned out every two or three days between October 1787 and May 1788. The Publius essays gained later fame, and wide circulation, as The Federalist Papers, but they had little circulation or influence outside New York at the time.
The men who wrote the Publius essays were actually responding to “Brutus,” a pseudonymous Antifederalist who was never identified but may have been Robert Yates. Brutus wrote sixteen essays during the same months as the Publius letters. His attack on the Constitution stressed the country’s size—“it now contains near three millions of souls”—and its diverse and discordant interests, from north to south. “Now, in a large, extended country,” Brutus wrote, “it is impossible to have a representation, possessing the sentiments, and of integrity, to declare the minds of the people, without having it so numerous and unwieldy, as to be subject in great measure to the inconveniency of a democratic government.” A national legislature, Brutus concluded, “would be composed of such heterogenous and discordant principles, as would constantly be contending with each other.”
In a brilliant essay, later known as “Federalist No. 10,” Madison—disguised as Publius—answered Brutus by accepting his premise and turning his logic around. “A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations,” Madison wrote, listing the groups that dominated Hamilton’s Federalist Party, “and divide them into different classes, actuated by different sentiments and views.” However, the existence of these “factions” was not a vice but a virtue in a national government. In a large and diverse country, Madison argued, no single faction was likely to control a legislative majority. “If a faction controls less than a majority,” he wrote, “relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. ”The more ”factions“ the better, he claimed. The “increased number of parties comprised within the Union” would better protect the people from “local prejudices. ” Madison concluded, and “make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”
The essays of Publius and Brutus, which powerfully and persuasively stated the arguments for and against a strong national government, probably changed few votes in the New York convention. What did change votes was the defection of a prominent Antifederalist to Hamilton’s side. Sam Adams in Massachusetts and Edmund Randolph in Virginia had switched sides and swayed votes in their conventions. Melancton Smith—an upstate merchant—played this role in New York, although he had secretly changed sides before the convention began, convinced that his state’s interests could not be protected outside the Union. Without revealing his true feelings, Smith debated the Constitution with Hamilton. He pointed out that a majority of a quorum in Congress would be twenty-four. “Can the liberties of three millions of people be securely trusted in the hands of twenty-four men,” Smith asked. He charged Hamilton with proposing an “aristocratic” government. Hamilton, in fact, hardly concealed his admiration for an aristocracy of the wellborn and wealthy.
Sensing defeat on an up-or-down ratification vote, the New York Antifederalists—unaware of Smith’s secret defection—adopted the strategy of their Massachusetts and Virginia compatriots and pressed for amendments to the Constitution. John Lansing proposed adding a bill of rights, including an amendment providing that “no person” could be deprived of “life, liberty, or property but by due process of law.” With only minor changes in wording, Lansing’s proposal later formed the basis of the Fifth Amendment to the Constitution, which has protected Americans from arbitrary governmental power since the Supreme Court “rescued” the Liberty Clause from corporations—which had used it as a weapon against workers—in the 1930s.
Lansing also proposed an amendment providing that all powers not expressly granted to Congress “shall be reserved to the respective states, to be by them exercised.” This proposal, which echoed the words of Governor Hancock in Massachusetts, later formed the basis of the Tenth Amendment to the Constitution. That last—but certainly not least—article in the Bill of Rights provided that all powers not delegated to Congress “are reserved to the states respectively, or to the people.” The nature and extent of these “unenumerated” powers have caused much debate in the Supreme Court’s chambers over the past two centuries.
Lansing’s move, endorsed by the Federalists, paved the way for Melanecton Smith’s motion that the Constitution be ratified with “confidence” that the proposed amendments would be adopted by Congress. Smith brought several wavering delegates with him to the Federalist side. On July 26, 1788, the convention voted thirty to twenty-seven to ratify the Constitution.
The New York vote sealed the victory of the Federalists, even though North Carolina and Rhode Island stubbornly refused to join the ratification parade. North Carolina, in fact, initially voted in August 1788 to reject the Constitution by a decisive vote of 184 to 84. The delegates to this first convention heatedly denounced the failure of the Framers to include a bill of rights. In November 1789, a month after the first Congress sent twelve proposed amendments to the states for ratification, North Carolina held a second convention and ratified the Constitution by the more decisive vote of 194 to 77. And the stubborn Rhode Islanders—who boycotted the Philadelphia convention—finally and grudgingly joined the Union in May 1790 by the closest vote of any state, thirty-four to thirty-two. Ironically, the only state with no constitution of its own was now subject to one it played no role in framing.
7
“The Nauseous Project of Amendments”
James Madison and his fellow Federalists rejoiced at the final ratification of the Constitution they had labored to produce in Philadelphia and later guided through the state conventions. Their efforts had come perilously close to disaster ; the switch of two votes in New York, six in Virginia and New Hampshire, or ten in Massachusetts could have doomed the Constitution. And the jubilation of the victorious Federalists was tempered by political reality. They had promised, as a campaign strategy during the ratification debates, to propose a bill of rights to the First Congress. Madison and other leading Federalists, who had opposed adding a bill of rights in Philadelphia, now found themselves under pressure to fulfill their campaign promise.
Despite the slowness of the mails in the age of sailing ships—it took weeks, sometimes months, for a letter to cross the Atlantic—one keen observer kept up a voluminous correspondence from his diplomatic post in Paris. Before and after ratification, Thomas Jefferson send dozens of letters to America, all with the same message: the Constitution must contain a bill of rights. “I do not like,” he wrote to Madison in December 1787, “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press,” and other guarantees against governmental oppression. Jefferson pounded his drum for more than a year. Writing in March 1789, just before the First Congress began its first session, Jefferson replied to Madison’s letter of the previous October: “How it happened to be four months on the way,” he wrote, “I cannot tell, as I never knew by what hand it came.”
Madison had raised in this letter—reporting, he said, the sentiments of others—several objections to a bill of rights. Jefferson answered them point by point. “I.
That the rights in question are reserved [to the states] by the manner in which the federal powers are granted. Answer. A constitutive act . . . which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal constitution.” Jefferson moved on. “2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.” Jefferson reminded Madison of the “tyranny of the legislatures” and of executives. “In the arguments in favor of a declaration of rights,” he noted, “you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.” The third objection Madison raised—whether for himself or others—was that the “limited powers of the federal government” could not compel the states to protect their citizens’ rights. Although Jefferson did not mention the Supremacy Clause of Article VI, his answer reflected its premise. “The declaration of rights will be the text whereby they will try all the acts of the federal government,” he wrote. “In this view it is necessary to the federal government also: as by the same text they may try the opposition of the subordinate governments.” In other words, state and federal governments alike would be bound to enforce the Constitution as “the supreme law of the land,”