RATIFICATION
The ratification of the Constitution began on
September 17, 1787, when the Constitutional
Convention adjourned.
The Resolution forwarding the Constitution
to the Confederation Congress on September
17th, signed by George Washington as the
Convention’s President, began “New
Hampshire, Massachusetts, Connecticut, Mr.
Hamilton from New York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina and Georgia.
Resolved…” There is a hint as to the
difficulties that lay ahead for ratification in
this statement. The reference to “Mr.
Hamilton of New York,” and not just the state,
suggests that due to the absence of the other
New York state delegates at the Convention
there was going to be serious opposition to
the proposed Constitution in New York.
1
The Convention opined in its transmittal that
the Confederation Congress should submit
the Constitution to a “Convention of
Delegates, chosen in each state by the People
thereof, under the recommendation of its
legislature, for their assent and ratification….”
The Convention further opined that Congress
should require that “as soon as nine states
shall have ratified the Constitution,” then
Congress should implement its provisions
and set the dates for the election of the
President, the Senators and Representatives,
and “that after he [the President] shall be
chosen, the Congress, together with the
President, should without delay, proceed to
execute the Constitution.”
On September 20, 1787, the Confederation
Congress read the instrument, debated it on
September 26th, 27th, and 28th and conveyed it
to the states for their consideration on the
28th. The debate within Congress was hearty,
and concentrated on the need for
amendments to protect the liberties of the
people. Those in support of the new
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Constitution, the Federalists, argued that
amendments to protect certain basic rights
were not necessary because the states, in
their own constitutions, had adopted those
protections. Because the proposed federal
powers were limited and enumerated, no
additional protection was necessary. The
group that came to be known collectively as
the Anti-Federalists opposed the new
Constitution, objecting not only to the
structure and powers of the proposed
Constitution but also its lack of protection of
the liberties of the people.
During the Confederation Congress’ debate
Richard Henry Lee asserted that the new
Constitution should be grounded “’upon a
declaration, or Bill of Rights, clearly and
precisely stating the principles upon which
the Social Compact is founded.’ It should
protect the rights of Conscience, freedom of
the press, and the right to trial by jury in both
criminal and civil proceedings and that
standing Armies in times of peace are
dangerous of liberty and ought not to be
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allowed without a two-thirds vote in both
houses of Congress. The Bill of Rights should
also state that elections for members of
Congress should be ‘free and frequent,’ that
the right administration of justice required
the ‘freedom and independency’ of judges,
that people had a right to assemble peacefully
to petition their legislatures, that citizens
‘shall not be exposed to unreasonable
searches’ and seizures of their papers and
possessions, and that ‘excessive Bail,
excessive fines, or cruel and unusual
punishments should not be demanded or
inflicted.” [Maier, Ratification, page 56] Lee
proposed amendments consistent with these
ideas, but they were NOT adopted.
Like the Constitutional Convention, the
Confederation Congress’ debates on the
Constitution were kept secret. The fact that
amendments dealing with the protection of
liberties were proposed was not disclosed
and the official records did not include the
amendments proposed during the debate. In
the end Congress unanimously agreed to send
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the Constitution to the states for their
consideration but remained silent in the
transmittal as to amendments.
Historian Pauline Maier notes the national
debate surrounding the Constitution “marked
the beginning of American national
politics….” It became a “war of printed
words.” In Massachusetts an observer noted
“that newspapers which were filled with
news and commentary on the Constitution,
were ‘read more than the bible at this time.’”
Within four months of the end of the
Convention, each of the states, except Rhode
Island, called for a state convention to debate
and determine whether it would ratify it.
Rhode Island, which had sent no delegates to
the Convention, called for a statewide
referendum on the Constitution rather than a
convention.
On December 7, 1787 Delaware became the
first state to ratify the Constitution by a vote
of 30 to 0.
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Pennsylvania followed on December 12th by a
vote of 46 to 23.
New Jersey ratified it on December 18th by a
vote of 38 to 0.
Georgia ended 1787 by ratifying it with a vote
26 to 0.
Connecticut did so as well on January 9, 1788
by a vote of 128 to 40.
On February 6th, Massachusetts ratified it
with a 19-vote majority, 187 to 168.
On March 24th, Rhode Island voters rejected it
by a vote of 2,711 to 239.
On April 26th, Maryland ratified it by a vote of
63 to 11.
South Carolina became the eighth state to
ratify it on May 23rd by a vote of 149 to 73.
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Virginia’s convention ratified it on June 25th
by a vote of 89 to 79. But it followed its
ratification with a request to Congress to call
a second constitutional convention to
consider amendments. As the ninth ratifying
state, Virginia made the Constitution an
operational government under the terms of
its submission to the states.
New Hampshire followed Virginia on July 2nd,
1788 with an affirmative vote of 57 to 47.
On August 2nd, 1788, North Carolina refused
to ratify the Constitution without
amendments to it. But on August 21 and 22,
1788 North Carolina selected delegates to a
second state convention and ratified it on
November 21, 1789 by a vote of 194 to 77.
Rhode Island, as the outlier, held a ratification
convention in March and May 1790, and
ratified it by a vote of 34 to 32.
New York’s ratification on July 26, 1788 came
after the requisite nine states’ ratification
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had made the Constitution an adopted
government. But, because of the state’s
critical role in the trade and commerce of the
proposed United States, its ratification was
essential, as a practical matter, to make the
new government work.
The first Federal Congress met on March 4,
1789 and the House obtained a quorum on
April 1st and the Senate on April 6th, 1789.
Washington was inaugurated on April 30th,
1789.
THE NUMBERS
Each state had its own political context
surrounding their ratification of the
Constitution. If you view the ratification
process as a national election or referendum,
and as we shall see next week in Madison’s
Essay #39, this was not how he saw it, the
aggregate numbers tell us that it passed
easily: when you include Rhode Island, 1071
delegates in the thirteen state conventions
voted for ratification while 696 delegates
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voted against it. But like national polling
today, the national total vote of delegates was
irrelevant to the process of the Constitution’s
ratification.
The fate of the practical success of the new
Constitution lay in the ratification
conventions of Massachusetts, Virginia and
New York. Without these states success under
the new form of government would have
been difficult.
Our interest in The Federalist Papers requires
us to concentrate on New York. Except for
“the state of New York, [The Federalist
Papers] [were] less influential in 1787 and
1788 than in later times, when it was too
often read as if it were a dispassionate,
objective analysis of the Constitution, not a
partisan statement written in the midst of a
desperate fight in a critical state.” [Maier,
page xi]
THE PUBLICATION OF THE CONSTITUTION
AND THE ESSAYS IN NEW YORK
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The Constitutional Convention did not skimp
on the dissemination of the Constitution for
the states’ consideration. The publishers of
the Pennsylvania Packet, upon the
adjournment of the Constitutional
Convention, printed 500 official copies of a
six-page broadside of it’s report with the
Constitution, two resolutions of September
17th, and the letter dated September 17th from
George Washington to the President of
Congress. Each convention delegate received
several copies of this broadside, which were
also sent to state executives, families and
friends.
By the end of 1787 the Constitution was
printed in New York:
--In all nine New York State newspapers
--In three pamphlet editions in New York City
--In three broadside editions in New York City
10
--In perhaps a broadside edition in
Poughkeepsie
--In a Dutch-language broadside in Albany
--In two almanacs in New York City
During 1788, it was printed:
--In a Dutch-language and a German language
pamphlet in Albany
--In the Hudson Weekly Gazette for the
election campaign for the state Convention
--In an official pamphlet by a Poughkeepsie
printer for the state Convention’s delegates
The Federalist Papers were also published in
two volumes of collected works between
October 27th, 1787 and May 28, 1788.
Essays numbers 1 through 77 were first
published in various New York newspapers
prior to the election of the state’s delegates
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to the Ratification Convention. The last 8
essays first appeared after the delegate
election but before the Convention in the
second of the two volumes of collected
essays.
The first volume of the collected Papers, with
thirty-six essays, was published in New York
on March 22nd, 1788. The second after the
delegate election, with 48 essays, was
published on May 28th, 1788. With the two
published volumes, the delegates to the
Convention had access to all of the essays…if
they choose to read them! The New York
Ratification Convention met June 17th to July
26th, 1788.
The Federalist Papers consist of eighty-five
essays written by Alexander Hamilton, James
Madison and John Jay.
Each of the eighty-five essays was signed
“Publius,” a reference to Publius Valerius
Publicola, the “savior” of Roman
Republicanism. He is one of the characters in
12
Plutarch’s Lives of the Noble Grecians and
Romans. One scholar [PhD Thesis, Rein
JanHenrick Staal, “A Dangerous Greatness:
Publius and the National Founding” 1985, UC,
Berkeley] noted Plutarch describes Publius as
“one of the greatest of the founders of the
Roman Republic.” He “assisted in the
expulsion of the tyrannical king Tarquinius
Superbus….and won his deathless name by
securing republican institutions for the city
through domestic reforms as well as warding
off attempts by Tarquins to resestablish their
tyranny.” As “anonymous” letters, they were
designed to convince by the substance of
their arguments, not by any influence
associated with the author. For Hamilton,
anonymity also gave him some cover from his
New York political enemies.
Hamilton had been a, and as Washington
noted, THE, New York delegate to the
Constitutional Convention and represented
the City and County of New York at the state
Ratification Convention.
13
Madison was a Virginia delegate to the
Constitutional Convention and represented
Virginia’s Orange County at the Virginia
Ratification Convention.
John Jay was not a delegate to the
Constitutional Convention but joined
Hamilton with six other delegates from the
City and County of New York at its state
Ratification Convention. Jay had helped draft
the 1777 New York State Constitution
following its declaration of independence
from Great Britain. In 1779 he was appointed
Minister to Spain, then served in Paris as a
part of the team negotiating the treaty that
ended the war with Great Britain. Jay then
served as Secretary of Foreign Affairs under
the Confederation from 1784 until 1789.
Hamilton wrote fifty-one of the essays,
Madison twenty-nine and Jay five (#s 2-5 and
6, principally discussing foreign affairs).
THE NEW YORK POLITICAL CONTEXT FOR
THE RATIFICATION FIGHT
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When the Constitution formally arrived in
New York for ratification, there was one
person seen by Hamilton as it’s principal
enemy: Governor George Clinton. Hamilton
made a preemptive attack against the
Governor in July 1787 by asserting in New
York’s Daily Advertiser that Clinton “had
publically attacked the Federal Convention
‘without reserve’ and had predicted it would
have a ‘mischievous outcome’. According to
Hamilton, Clinton said the Confederation was
adequate for the ‘purposes of the Union’ and
that the Convention would frighten people
over evils that did not exist…” Hamilton
summarized this early attack on Clinton’s
anticipated opposition to ratification by
noting it “showed that Clinton was more
attached ‘to his own power than the public
good.’ A ‘free and enlightened people’ should
watch such a man ‘with a jealous eye,’ and,
when he ‘sounds the alarm of danger from
another quarter,’ ask whether they ‘have not
more to apprehend from himself.’”[Maier,
Ratification, page 320]
15
What must not be forgotten in our analysis of
the creation and ratification of the
Constitution is that each of the 13 States,
within the 11 years preceding its proposal,
had created their own constitution for their
governance as well as dealt with the adoption
of the Articles of Confederation. Constitutionmaking was not a new experience to the
people in the original 13 colonies. And that
means that proponents of the Constitution
faced in each State office holders and
influential citizens familiar with governmentmaking whose power base, commerce, and
taxation powers would be directly affected
with adoption of the new Federal
government.
State sovereignty, obtained by each state
upon it declaration of independence from
Great Britain, was absolute. By adopting
written constitutions the people of each state
effectively created their new government
AND limited that absolute power with its
provisions. New York’s 1777 Constitution has
been characterized as one of the most
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conservative of those adopted by the various
states after their declaration of independence.
It’s first article, consistent with the effort to
limit the state’s absolute powers of
sovereignty, provided that “[N]o authority
shall on any pretence[sic] whatever be
exercised over the people or members of this
State, but such as shall be derived from and
granted by them.” It did not have a separate
Bill of Rights to protect the people’s liberties;
provisions doing so were a part of the body of
the Constitution.
The New York Constitution granted powers to
the Governor who could wield substantial
influence if he had political skills. The first
Governor elected was George Clinton, a
surprise winner over the “landed” candidate.
By 1786 Clinton had won three consecutive
terms as Governor and was a very effective
politician.
Under the New York Constitution, The
Council of Appointments appointed many
state officers and employees. The appointees
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generally served at the pleasure of the
Council. Governor Clinton, as chair of the
Council, held substantial influence over its
members and thereby the men appointed by
the Council. This influence would flow over
into the Ratification Convention. As one
commentator noted, “Much of the politics of
New York during and after the Revolution
centered around the disagreements between
the Clintonians and Anti-Clintonians over
both state and continental matters.”
One of the principal objections to the
Constitution in New York, like the other
twelve states, was the absence of a Bill of
Rights. But unlike the other states, New York
had the port of New York, and the potential
loss of the cash flow generated for the state’s
funding of its government from that
advantage was an additional reason to
oppose ratification.
New York had suffered greatly during the
Revolution. The occupation of New York City
by the British army had substantially affected
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the state’s tax cash flow. Its economy had
been wrecked by the Occupation. After the
British army departed, the politics of the state
evolved into two general factions: those, like
Governor Clinton, who wanted to deal with
the state’s economic problems (and became
Anti-Federalists), and those that were
oriented to Continental problems (the
Federalists).
In 1881 New York had approved the
Confederation Congress’ Impost Duty (the tax
paid on imported goods, i.e. tariffs) imposed
on the states to pay for the war. It never
became effective since all of the states did not
approve it. While initially accepting the
Impost duty, New York repealed its
acceptance in 1783 and adopted its own
impost duties. One of the benefits of these
duties was that consumers in Connecticut and
New Jersey (the estimate was that over half of
all foreign goods imported into those states
came through the port of New York) directly
supported New York’s tax cash flow. New
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Yorkers benefited with lower real estate and
personal property taxes.
The New York impost “was to be the
cornerstone of the new financial system” for
placing New York back on a solid financial
footing after the war. As a result, Clinton no
longer supported a Continental impost as he
had in 1781.
The Confederation Congress continued to
push New York to adopt its impost duties
(5% for twenty-five years) to pay for the
costs of the war but New York refused to do
so in 1785, 1786 and in 1787. New York’s loss
of this revenue to the Articles of
Confederation government as well as the new
Federal government under the proposed
Constitution was a material reason it’s state
officials, and the people of New York, whose
taxes would go up, opposed ratification.
There were other reasons New Yorkers were
wary of the new Constitution. New York had
its share of disagreements and
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disappointments with the Confederation
Congress (and potentially any national
government) during the 1780s. These
included disputes over land that became a
part of Vermont, the treatment of and
payment for the confiscated Loyalist
properties, claims and a dispute with
Massachusetts over New York’s western
lands, and the garrisoning and control over
the Northwestern forts on land claimed by
New York (and which the Confederation also
claimed). While these were side issues for
New Yorkers in the debate over ratification,
they had generated residual bad feelings
towards any national government.
Hamilton’s “big picture” solution to the
problems facing the 13 states was “granting
Congress the impost, [and] vesting it with
power to regulate commerce….” For
Hamilton, the national power to levy tariffs
was critical to the success for the new
national government.
21
THE PROSPECTS OF SUCCESS AS ANALYZED
BY HAMILTON AT THE END OF THE
CONSTITUTIONAL CONVENTION
In the final weeks of the Constitutional
Convention, Hamilton put on paper, but never
published “Conjectures about the new
Constitution,” analyzing the chances for the
new Constitution. Hamilton listed the
conditions that favored its adoption and as
well as those against it. Those in favor
included: the “universal popularity of General
Washington and the prestige of others who
framed the document; the good will of the
persons engaged in commerce, creditors and
men of property, who wanted a government
capable of protecting them against domestic
violence and the ‘depredations which the
democratic spirit is apt to make on property,’
and who wished ‘for the respectability of the
nation;’ a widespread understanding among
the people that the Confederation was
inadequate to preserve the union or to
protect their safety and promote posterity. On
the other hand, several forces worked against
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the Constitution, including the opposition of a
few dissenting members of the Convention, of
debtors, of state office holders and others
who would lose influence or power or might
hope to gain it by fighting the adoption of the
new government….[he also noted] the strong
popular opposition to taxes and to
institutions that ‘may seem calculated to
place the power of the community in few
hands and to raise a few individuals to
stations of great prominence…and [foreign
powers ‘will not wish to see an energetic
government established throughout the
states.’” [Maier, Ratification, pages 68-69]
The writings that surrounded the ratification
process in all thirteen states are enormous in
volume. The Federalist Papers are only a tip
of the iceberg of writings generated in New
York. Those writings, consisting of private
correspondence and publications in the form
of pamphlets and newspaper articles, take up
four volumes of the twenty-six volumes in
“The Documentary History of the
Ratification of the Constitution.”
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THE NEW YORK RATIFICATION
CONVENTION:
The New York Ratification Convention
convened in Poughkeepsie on June 17, 1788
and George Clinton was elected President of
the Convention.
On June 24, 1788 news of New Hampshire’s
ratification arrived in Poughkeepsie, followed
on July 2, 1787 with news of Virginia’s
ratification. The New York delegates
understood during their Convention debates
that the new Constitution had met the
minimum requirements to become an
operational government amongst nine of the
thirteen states. Only New York, North
Carolina, and Rhode Island remained
uncommitted to the proposed Constitution
during New York’s Convention.
Sixty-five delegates were elected to the New
York Ratification Convention at the end of
April and beginning of May 1788. The votes
were actually counted on May 27, 1788. Each
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candidate ran as a Federalist or as an AntiFederalist.
Not all of the delegates attended: upon
convening, there were 43 Anti-Federalist
delegates and only 18 Federalist delegates in
attendance. All of the Federalist delegates
came from the City and County of New York,
Richmond County, Westchester County and
Kings County. These counties are
geographically concentrated around New
York City. The remainder of the state’s
counties, those going north up the Hudson
River, all elected Anti-Federalist delegates. No
county elected a mixture of delegates.
What about the Anti-Federalist opposition?
The big picture analysis of the Federalist
argument shows that the Federalists, like
Hamilton, Madison and Jay, all favored a
government like that constructed in the
Constitution. As for the Anti-Federalists “All
that necessarily connected the opponents of
the Constitution was the opposition itself;
there was no readily apparent system of
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government that” can be ascribed to them.
“Some believed that the Constitution could
work with some major revisions while others
found the Articles of Confederation suitable
even without major revisions.” It was and
remains a complex set of objections scholars
find difficult to place in a cohesive political
theory of government.
For us, this is where the story temporarily
ends. I close today’s observations with
Madison’s thoughts on the “Founder’s Intent.”
In a speech in Congress in 1796 Madison
suggested that “whatever veneration might
be entertained for the body of men who
formed our constitution, the sense of that
body could never be regarded as the oracular
guide in expounding the constitution. As the
instrument came from them, it was nothing
more than the draft of a plan, nothing but a
dead letter, until life and validity were
breathed into it, by the voice of the people,
speaking through the several state
conventions….” To find the meaning of the
instrument Madison noted “we must look for
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it not in the general convention which
proposed, but in the state conventions, which
accepted and ratified the constitution.” [April
6, 1796]
As we read the Essays, let’s remember our
goal for this group, which is, I hope, to view
them with the same purpose as the delegates
to the New York Ratification Convention:
What type of government did the Constitution
create and how would it work?
Next week we start the process by examining
Essays # 1, 14 and 39.
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