RATIFICATION
THE FIGHT IN CONGRESS
THE FIGHT IN PENNSYLVANIA, DELEWARE,
NEW JERSEY, GEORGIA, AND CONNECTICUT
THE FIGHT IN MASSACHUSSETS, NEW
HAMPSHIRE, RHODE ISLAND, MARYLAND, AND
SOUTH CAROLINA
THE FIGHT IN VIRGINIA, NEW HAMPSHIRE,
NEW YORK, AND NORTH CAROLINA
BRINGING THE GOVERNMENT TOGETHER
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THE FIGHT IN CONGRESS
W
hen the Constitution was sent from Philadelphia to New
York for its official presentation to the sitting Congress,
several delegates to the Convention followed in its path (many of
the congressmen had served as Convention delegates). Congress
received the Constitution on September 20 and began debating it a
week later. Madison arrived on the scene not long after Congress
began its debates, and he found that the objections from the
Convention’s three dissenters had already preceded him. Most
of the initial debates in Congress were not about the merits or
defects of the Constitution, itself; instead, the earliest detractors
concentrated on the extraordinary license that the Framers had
taken in devising a new government rather than patching up the old
one. They were also insistent that Congress and the states ought to
be able to insist upon amendments to the plan before ratifying.
The Federalists not only wanted to keep Congress from
recommending amendments, but many wanted Congress to send the
Constitution to the states with their explicit endorsement. Article
VII of the Constitution had been minimalist in its description of
the process: “The Ratification of the Conventions of nine States,
shall be sufficient …” The Convention had outlined its preferred
mode of ratification in greater detail within an accompanying
resolution to Congress, and it had stipulated only: “That the
preceding Constitution be laid before the United States in Congress
assembled; and that it is the opinion of this Convention, that it
should afterwards be submitted” to the states. These instructions
neither required nor forbade Congress from giving the Constitution
its blessing, nor did it say anything about possible amendments.
And even if the resolutions had been more specific, was Congress
beholden to instructions dictated by a Convention that had been
called into existence by Congress?
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The congressmen who were most suspicious of the Constitution
were not at this time trying to defeat it outright; they merely wanted
to amend its perceived defects before sending it forth to the states.
Madison wrote to Washington that Richard Henry Lee (from
Virginia) and Melancton Smith (from New York) “contended, that
Congress had an undoubted right to insert amendments, and that it
was their duty to make use of it in a case where the essential guards
of liberty had been omitted.” On the floor of Congress, Lee had
accused his opponents’ position of being strange and nonsensical; it
was “like presenting a hungry man 50 dishes and insisting he should
eat all or none.” The federal Convention was not the only body of
men with intelligence enough to make worthwhile contributions
toward formulating a good plan of government. Lee proposed a set
of amendments that included an extensive enumeration of rights.
Madison reported that the Constitution’s advocates did not
deny Congress’ right to insert amendments, “but the inexpediency
of exerting it was urged.” There were many reasons for its
inexpediency, but primarily they insisted that, if Congress should
have any agency in the design of government, then the Constitution
would be transformed into “the mere act of Congress.” As such,
it would be subject to the amendment process prescribed by the
Articles of Confederation. Most important, it would mean that the
Constitution would “require the ratification of thirteen instead of
nine states.” If the Constitution meant to supplant the Articles,
rather than being inextricably bound to them, then Congress must
step aside as a lawmaking body in this instance and act simply as a
conduit for conveying the document to the states to ratify.
Congress spent only a few days on the debate, and the members
ultimately decided, “unanimously,” to send the Constitution to the
states as they had received it. But the unanimity applied only to
the decision to send the Constitution; it was not an endorsement
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of the plan. Madison admitted that “a more direct approbation”
from Congress “would have been of advantage in [New York] and
some other states.” Still, he was satisfied with the outcome. He
predicted that “the circumstance of unanimity must be favorable
every where.” Nonetheless, Congress’ decision to send the
Constitution to the states certainly did not resolve the disagreement
about whether the plan should be debated as a fait accompli or
whether the states could insist upon amendments before adopting
it. Lee continued to hope that the states might be able to propose
amendments, even if Congress chose to abstain. This disagreement
over amendments would continue throughout the ratification
process. For the time being, however, the Federalists had scored
their first victory.
THE FIGHT IN PENNSYLVANIA, DELAWARE, NEW JERSEY,
GEORGIA, AND CONNECTICUT
T
he Pennsylvania General Assembly had a head-start over
other state legislatures. The morning after the Constitutional
Convention had vacated the lower floor of the Pennsylvania State
House, the state’s Assembly began occupying the same space, and
they got the first peek at the new Constitution—even before the
Confederation Congress had seen it. Some of the supporters of
the Constitution wanted to take advantage of their situation and call
for a ratifying convention immediately, without even waiting for the
official go-ahead from Congress. As patriotic Pennsylvanians, they
wanted the credit for being the first state to ratify the new plan of
government, and they were already spinning dreams that the nation’s
new capital might be placed in their centrally-located state.
There were two obstacles to Pennsylvania’s schemes to take
short cuts on their race to the finish line. In the first place, the state
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might run into some potential embarrassments if they acted prior
to Congress in this matter. What if Congress refused their assent
to the new Constitution? What if the Constitution they sent to the
states came with congressional amendments or recommendations?
In response to these objections, the defenders of immediate action
argued that the state legislatures had never paid so much deference
to Congress before. Virginia and many other states had selected
delegates for the Constitutional Convention before Congress had
actually called the Convention. But there was a second obstacle to
a hasty ratification: a small but feisty opposition movement taking
shape in Pennsylvania. These naysayers did not have the numbers
to outvote the majority, but they did have the numbers to obstruct.
By refusing to attend the Assembly, the opponents to ratification
denied the Assembly a quorum, so the majority was unable to vote
on this (or any other) question. This tactic became the opposition’s
last resort by September 29, when an express rider from New York
informed them, unofficially, that Congress had voted to send out
the Constitution in the same form in which it had been received.
The Federalists were now determined not to wait for any official
word from Congress before they acted.
The Assembly sent out the sergeant at arms to collect the
absentee members, but they resolutely refused to comply. At
last, a small mob forcibly dragged two members into the State
House, and then barred the exits to compel them to stay. These
maneuvers enabled the majority to vote in favor of a ratification
convention which was slated to convene in late November. But
the strong-arm tactics used to achieve their victory cost the
Federalists some measure of legitimacy in public opinion. The
newspapers in Pennsylvania began publishing accounts of the
outrage perpetrated against the dissenters. They also published the
abused minority’s objections to the Constitution, and these accounts
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and objections began circulating in other states. With a nod to
Virginia—whose Antifederalists were already organizing through
private correspondence—the more public Antifederalist movement
was born in Pennsylvania. It was in this state that the war of
words would begin in the newspapers, and the numerous Federalist
and Antifederalist essays published there would inspire similar
compositions in other states.
Pennsylvania’s ratifying efforts had gotten off to a rough start,
and time would not smooth over hurt feelings. Pennsylvania’s
opponents to the Constitution were never able to shake their
minority status, but they remained a stubborn and fierce minority.
By the time the Convention met on November 21, the battle
lines were sharply drawn. The debates were more of a public
performance than an exercise in deliberation, because none of the
participants were inclined to yield to the persuasions of the other
side. Even worse, neither the speakers nor the onlookers treated
the opposition party with the civility which graces the best examples
of public discourse. Then, as now, such lack of civility was to
come with a price. Nevertheless, since the Philadelphia area was
predominantly pro-Constitution, the public records and newspaper
accounts of Pennsylvania’s ratifying convention tended to suppress
any evidence of dissent. Almost all of the widely published
speeches came from the Federalist members. Even though the
Federalists had the outcome “in the bag” from the outset, however,
the debates dragged on for over three weeks. James Wilson, who
was the only delegate to the ratifying convention who had also
been a member of the Constitutional Convention, defended the
Constitution at length and on numerous occasions.
Since the opponents to the Constitution knew that they lacked
the votes to prevail, they tried again to delay and obstruct. They
cast doubt on the elections for delegate members, saying that they
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had failed to achieve enough of a turnout to reflect the genuine
sentiments of the people. They proposed delaying the final vote
for ratification until those sentiments could be better known.
These accusations were summarily dismissed by the majority. A
petition was presented to the convention, urging the convention to
propose amendments to the Constitution, and the minority took
up the challenge by drawing up a list of proposed amendments.
Among its most prominent features was a bill of rights. Once
again, the majority refused. Finally, on December 12, Pennsylvania’s
convention ratified the Constitution on a vote of 46-to-23. But
their victory was a bittersweet one; their shoddy treatment before
and during the convention served only to increase the acrimony of
the opposition. The dissenters had refused to sign the ratification
statement, and their objections and proposed amendments to the
Constitution again began circulating throughout all the states.
To add to Pennsylvania’s woes, it had failed in its bid to be the
first state to ratify the Constitution. Between their convention’s
first day of meeting and their vote to ratify, Delaware’s convention
met, debated for four days, then unanimously voted to adopt the
Constitution. Pennsylvania came in at second place. Just a week
after their vote, New Jersey followed Delaware’s example by voting
quickly and unanimously to ratify. Each of the three states—
Pennsylvania, Delaware, and New Jersey—offered to carve out the
ten-square miles from its own state to serve as the nation’s new
capital. And in the final ratification act of 1787, Georgia likewise
adopted the Constitution unanimously on December 31, after only
a single day’s deliberations. Many of the small states (with the
exception of Rhode Island and New Hampshire) were clearly well
satisfied with the compromise that gave them equal representation
in the Senate, and they now embraced the protections they expected
from the new Constitution. In the case of Georgia, she was no
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doubt anxious to reap the benefits of greater protections on her
western frontier.
The first state to hold a ratifying Convention in 1788 was
Connecticut, and support for the Constitution ran high in this
state. Since Connecticut’s newspapers were dominated by Federalist
editors, the appearance of invulnerability was even stronger. Given
the Federalist monopoly on the news media, Connecticut was
not a model of public debate about the Constitution before its
convention met. Its citizenry could not have even been exposed to
both sides of the debate, unless they received their newspapers from
out of state. The Federalist compositions, however, were frequently
skilled and eloquent. Two of Connecticut’s delegates to the
Constitutional Convention, Roger Sherman and Oliver Ellsworth,
were among the authors contributing their talents to the Federalist
cause. When the Convention began in Hartford on January 3,
the public had been primed to expect and to favor ratification.
Antifederalists were among the delegates elected to the convention,
but their arguments were easily outgunned by the Federalists. After
only a week of deliberations, on January 9, the convention voted to
adopt the constitution on a vote of 128-to-40.
The first five ratifying conventions got the process of adopting
the Constitution off to a deceptively hopeful start. Of the first
states to hold their ratification conventions, four of the five
had adopted the Constitution with such overwhelming support
that optimistic Federalists might have been tempted to describe
Pennsylvania’s pitched battle as the outlier. In fact, the three states
that had voted quickly and unanimously to ratify were the true
outliers, and the tussle in Pennsylvania was merely a warm-up for
the real contests that lay ahead.
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THE FIGHT IN MASSACHUSETTS, NEW HAMPSHIRE,
RHODE ISLAND, MARYLAND, AND SOUTH CAROLINA
M
assachusetts hosted the first ratifying convention in which
there would be a real contest between the Federalists and
Antifederalists—and real uncertainty about its outcome—right
up to the vote to ratify. Massachusetts was home to a large body
of citizens who were politically engaged and fiercely independent.
It would have been a mistake for the Massachusetts Federalists
to attempt the strong-arm tactics that had met with success in
Pennsylvania, even if they could have been sure that they were
in the majority, which was by no means the case. This state, the
epicenter of the townhall meeting and the birthplace of Shays’
Rebellion, had been engaged in a profound, prolonged, and spirited
debate over the merits of the Constitution well before the ratifying
convention even opened. The Federalists could not afford a
misstep. Massachusetts was a large and influential state, and a loss
here would seriously undermine the momentum for ratification.
Despite the bitter winter weather which made travel difficult,
the convention opened promptly on the morning of its scheduled
date, January 9. The attention of all politically interested citizens—
within the state and from many other states—was riveted to its
proceedings. There were so many interested bystanders who wanted
to attend the meetings that the assembly had to move to a large
Boston church in order to accommodate the crowds, and dozens of
newspapers throughout the union reprinted its debates.
This populous and populist state sent the largest number of
delegates to its ratifying convention, 364, and many of them
arrived with instructions from the towns that had elected them.
These instructions, however, were not simply for or against
the Constitution; instead, townships expressed the features in
the Constitution they would like to see changed. Some merely
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instructed their delegates to listen to the debates before deciding.
Indeed, unlike many other states, where established and doctrinaire
parties had been formed well before the ratifying convention,
Massachusetts brought forth many delegates who were genuinely
undecided on the question. The debates would matter in this state.
It was determined in the opening days that the convention would
freely discuss the Constitution by paragraphs, but it would not vote
on any question until the end, when the delegates would decide
whether to adopt or reject the Constitution. This decision to avoid
any substantive votes until the end of the Convention added to the
uncertainty: just what proportion of those 364 men were in favor of
the Constitution and how many were against?
Everyone seemed to agree that the quality and quantity of
the debates were weighted heavily in favor of the Federalists. If
eloquence alone were to decide the contest, then the Federalists
could feel confident. Among the proponents of a stronger federal
government were some of Massachusetts’ wealthiest and besteducated men, as well as its most seasoned politicians. But the
choice would ultimately be decided by the majority of the delegates,
not the well-to-do or the well-connected. And throughout the
convention, many members from both sides were guessing that
the opposition might have the numbers to carry the vote. The
Antifederalists included many poorer and less educated members
from the western and rural parts of the state—even some
Shaysites—and the sophisticated oratory of the Federalists seemed
only to confirm their suspicions that the Constitution would benefit
the wealthy elite over the common folk of Massachusetts.
At the beginning of the ratification process, Federalists had been
adamant that the states must accept the Constitution as an “all or
nothing” proposition. But in light of the formidable opposition
in Massachusetts, proponents began to see that some flexibility on
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the question of amendments might be their only hope of winning
this state. Many opponents to the Constitution had expressed a
willingness to ratify if amendments were a precondition of adoption.
Federalists therefore saw their task as one of shifting that stance,
in at least some of these members, so that a set of proposed
amendments would be no more than a recommendation to the First
Congress for adoption after the Constitution was ratified. In
order to give their plan its best chance for success, they enlisted
the Convention’s president, the popular and cagey governor, John
Hancock, to propose a set of amendments. Until that crucial
moment he had kept away from most of the meetings due to illness,
and he had also until that day kept his cards close to the vest, so
no one could tell where he stood on the all-important question of
ratification.
Hancock joined his colleagues on January 30, and on his
first day’s return from the sickbed he came out in favor of the
Constitution and proposed a series of recommended amendments
to be attached to the state’s ratification statement. The more
hardline Antifederalists now adopted the position that had
previously been staked out by the hardline Federalists: The
Constitution must be adopted or rejected as it was; proposed
amendments were not permissible. But the Federalists’ new strategy
was not designed to win over the hardliners; they only needed to
swell their ranks with a few of the wavering moderates in order to
prevail. But they were not confident that they could accomplish
even that goal. During the ensuing discussion over amendments,
the Federalists were still uncertain whether their stratagem was
winning over enough members. Opponents to ratification argued,
rightly, that there was no way to be certain whether their proposed
amendments would be taken seriously by the First Congress, and it
was a risky gamble to accept ratification with amendments that were
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mere suggestions. But in the end, enough members were swayed.
The final vote was taken on February 7, and when the votes
were tallied there were 187 delegates in favor of ratification and 168
opposed. If ten delegates out of 355 voting members had changed
their votes to no—or had refused to be reconciled to the form of
ratification that the Federalists had proposed—then Massachusetts
would have failed to ratify the Constitution. The tactic of adding
proposed amendments to a state’s ratification was enough to win
over this state, however, and it would henceforth be a model for
breaking down resistance in other states as well. Massachusetts’
ratifying statement and amendments circulated throughout the
other states. The suggested amendments included a few that were
designed to better protect individual liberties—a very abbreviated
bill of rights—but most of the amendments named substantive
reforms to the text of the Constitution. The Antifederalists had
been wary of the Constitution’s unlimited taxing power and the
power of Congress to regulate elections, and they wanted to see
these and several other parts of the Constitution changed.
One other successful feature of the Massachusetts ratification
was its ability to raise the tone of the disagreements. Winners and
losers parted graciously, with many mutual expressions of esteem
and good will. The win in Massachusetts put the Federalists in
such a positive frame of mind that for the first time they began to
feel confident that the Constitution would soon be ratified. Those
dreams were dashed, however, when New Hampshire’s convention
met in February, debated for just nine days, and then voted to
adjourn without either ratifying or rejecting the Constitution. That
outcome, it seems, was the very best that the Federalists could
achieve in the Granite State. About one fourth of the towns had
sent their delegates to the convention with instructions to vote
down the Constitution, and several more delegates were committed
13
Antifederalists even without instructions. New Hampshire was
primarily a backcountry state, and these areas tended to oppose
the Constitution. Nonetheless, the debates put forward by the
proponents of the Constitution during the ratifying convention had
weakened the resolve of some of the opponents, and the newly
converted Federalists wanted a chance to return to their districts
to try winning over their constituents before taking the final vote.
New Hampshire therefore adjourned its ratifying convention with
orders to reconvene in June.
Federalists had been certain that New Hampshire would ratify if
Massachusetts did, so this disappointment was an unexpected blow.
They tried to keep their hopes up and put on a brave face, but the
news from New Hampshire was disconcerting, and it was followed
by worse news from Rhode Island. The troublesome state—the
only state to boycott the Constitutional Convention in its entirety—
had been the last state to consider whether or not to call a ratifying
convention. When the state assembly met in February, it voted to
reject the ratifying mode proposed by the Framers and instead hold
a statewide referendum in March. The popular vote was a total
rout: 2,708 against the Constitution and only 237 in favor. Some
Federalists in the state had boycotted the election, but there was
no denying that Rhode Island was dominated by Antifederalist
sentiment. February had been a bleak month for the Federalist
cause.
Spring of 1788 promised fairer prospects for the Federalists.
Two states which were safer pro-Constitution redoubts, Maryland
and South Carolina, had scheduled ratification conventions for April
and May, respectively. The question of ratification had not been as
hotly contested in Maryland as in some surrounding states. Luther
Martin, who had been a thorn in the side of many nationalists
within the Constitutional Convention, graduated to the position of
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firebrand Antifederalist within Maryland’s legislature and in print.
But he was an exception. By all accounts the Marylanders who
were most interested in the question leaned in favor of ratification.
When the convention met, the opposition was so underrepresented
that they did not even try for a vote against the Constitution;
instead, they introduced a proposal for suggested amendments, just
as Massachusetts had done. The proponents to the Constitution
had convened such an overwhelming majority, however, that they
did not feel the need to be magnanimous. They voted to ratify
(without amendments) by a vote of 63-to-11. The Federalists
entertained motions for amendments for a time after this vote, but
when they thought that the opponents were pushing too far, they
voted to adjourn without any suggested amendments at all.
South Carolina had a strong Federalist presence, and, what is
perhaps more important, the districting in that state produced
a lopsided apportionment of voters to the urban areas around
Charleston where more people, both businessmen and workers
involved in trade, were in favor of the Constitution. The
convention met for less than two weeks in mid-May, and there are
scanty records that survive of the debates. The Federalists began
with the upper hand, but when news arrived that Maryland had
ratified, it sealed the fate for the Antifederalists in South Carolina.
Nonetheless, the convention agreed to add a set of recommended
amendments to their ratifying statement. The delegates knew that
there were more opponents to the Constitution in South Carolina
than were represented in the halls of the ratifying convention, and
they hoped that this gesture would help reconcile the opponents
to ratification. After drawing up a short list of amendments,
the convention voted to ratify, 149-to-73. With that vote, South
Carolina became number eight of the nine states needed to ratify.
But June would still be the real test. Three states with powerful
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opposition movements would be meeting that month: Virginia, New
Hampshire, and New York; certainly both Virginia and New York
were needed if the new government was to have a smooth start.
The next state scheduled to meet was the most important prize of
all, and everyone expected that the ratification struggle in Virginia
would be a pitched and evenly-matched battle.
THE FIGHT IN VIRGINIA, NEW HAMPSHIRE, NEW YORK,
AND NORTH CAROLINA
V
irginia already had a powerful, well-established, and wellconnected cadre of Antifederalists long before its ratifying
convention was scheduled to meet in June of 1788. The two
Virginians who had refused to sign the Constitution, George Mason
and Virginia’s Governor, Edmund Randolph, had already published
the reasons for their dissent, and these objections had circulated
widely. Like Massachusetts, Virginia’s opponents to the Constitution
were numerous, and could potentially overpower the Federalists; and
unlike Massachusetts, the Antifederalists also had prestigious and
powerful orators who could ably defend their position in debate. In
addition to the two non-signers, who were elected as delegates to
the Convention, political luminaries such as Patrick Henry (who had
refused to attend the Constitutional Convention, according to some
stories, because he “smelt a rat”) and Richard Henry Lee (a leading
member of the Lee dynasty) were on record as Antifederalists. Lee
did not attend the ratifying convention, but Henry’s thunderous
oratory was destined to make a lasting impression there. Jefferson’s
presence was also felt, even though he was in Paris at the time. In
February of that year, he had sent a private letter to his friend,
Alexander Donald, expressing his wish that nine states would
ratify and the remaining would hold out for a bill of rights. Henry
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somehow got his hands on a copy of Jefferson’s letter and read it at
the ratifying convention, arguing that even Jefferson would approve
of Virginia’s rejection of the Constitution. Jefferson had changed
his mind by the time Virginia’s convention met, but no one in
Virginia could have known that.
The Federalists, however, were not without talent and support,
and they were therefore not without hope. Madison had been in
New York for most of the months prior to Virginia’s convention—
representing his own state in Congress and collaborating with
Hamilton on a series of newspaper articles under the penname of
Publius—the essays now known as “The Federalist Papers.” But he
was called back to Virginia by the earnest entreaties of Washington
and others; his services were indispensable to win over this crucial
state in its ratifying convention. Madison’s presence would not be as conspicuous in Virginia’s
debates as they had been in the Federal Convention, however. He
fell ill and was unable to attend several days of the debates. He also
did not speak as frequently as he had in Philadelphia; and when he
did speak, his words were often too soft-spoken to be caught by the
stenographer. Nonetheless, several members recalled that Madison’s
speeches (when they could be heard) were of a preeminent quality;
they stood out even among this gallery of notables. And the
Federalists had many other gifted speakers who were combatting the
Antifederalists’ attacks. Even Edmund Randolph had come around
to the Federalist cause and was now an outspoken defender of the
Constitution. Since eight states had already ratified, he believed
that acceptance of the Constitution would be inevitable, and he
did not want Virginia to be excluded from the new Union. And
if the Antifederalists could claim the absent Jefferson among their
ranks, the defenders of the Constitution, according to Madison,
could name “a character equally great on our side.” He was
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being understated, since no American was so revered as General
Washington at this time, and his name was being invoked in other
state ratifying conventions as well.
Nonetheless, the Federalists could not afford to be complacent.
The debates that had raged for months in Virginia had hardened
opinions on the subject, and the voters’ choice of delegates to the
ratifying convention reflected a more doctrinaire approach than had
prevailed in Massachusetts. Many delegates were already known
to be reliably Federalist or Antifederalist when they convened
in Richmond on June 2, and the divide was rather evenly split.
Virginia’s records of the debates in its ratifying convention are
more comprehensive than in any other state, and these records
reveal the rhetorical equivalent of an all-star sporting match. The
Antifederalists would surge forward and make gains, and the
Federalists would regroup and make ground in their own time.
The defenders of the Constitution had this advantage:
they were unified in their advocacy. They all wanted to ratify
the Constitution that was before them; they believed they could
resolve any defects through the ordinary amendment process. The
Antifederalists, however, were hampered by discordant reasons for
objecting to the Constitution and conflicting visions of the political
arrangement that should be put in its place. Patrick Henry thought
that the Articles of Confederation, or something very much like
it, would be the best arrangement for so vast a territory. George
Mason favored a federal government similar to the one proposed
in the Constitution, so long as that document’s fatal flaws were
corrected. But if the Antifederalists disagreed amongst themselves
about what they wanted, they had at least learned, at last, to unify
their strategy. The Antifederalists in Virginia did not even try to
win support for an outright rejection of the Constitution. Instead,
they wanted to follow the example of Massachusetts, but they also
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wanted to go one step further. They wanted their recommended
amendments to be conditional to ratification. Privately,
Antifederalists in Virginia were conspiring with sympathizers
in New York and New Hampshire to stymie the progress of
ratification by collectively adopting this measure. If several of the
most important states held out for amendments before ratifying, the
Federalists would have to yield.
The Federalists in Virginia who knew of these secret interstate
machinations were careful to try to conceal them from public
notice, lest the overtures from other states provide encouragement
and fortify the resolve of the Constitution’s opponents. Proponents
of the Constitution directed all their energy toward winning
ratification for Virginia as quickly as prudence and civility would
permit. They contended that a conditional ratification would not
be valid, especially once the Constitution reached its threshold
of nine other ratifying states. If each of the other states ratified
without conditions, then Virginia’s coy pseudo-ratification would
leave them out of the union, and hence excluded from the ensuing
debates over amendments. It would be better if Virginia ratified
with recommended amendments only, as Massachusetts had done.
Only in this way could Virginia influence the national debates about
amending the new Constitution in the First Congress.
The Federalists finally proposed a set of modest amendments,
which they hoped to see attached to their ratification statement as
a recommendation to the First Congress. Patrick Henry made a
counter-proposal, and he included a much longer set of proposed
amendments, many of which went beyond a statement of rights and
suggested more radical alterations in the text of the Constitution.
The greatest difference between the two proposals, however,
lay in the underlying significance of the suggested amendments.
Should Virginia adopt “previous amendments” (which meant
19
that its ratification would be contingent on the adoption of
those amendments), or should it be satisfied with “subsequent
amendments” (which would be recommendations only, and in no
way binding on Congress or the other states)?
The Convention first voted on Henry’s motion of “previous
amendments.” The Federalists were by this time cautiously
optimistic that they had a majority, but they also knew that it was
a slim and precarious one. The delegates voted down conditional
ratification with a slim 80-to-88 majority. Then they voted on the
Federalists’ motion to ratify with suggested amendments only,
and that motion won by 89-to-79. Out of 168 votes cast, if five
additional delegates had decided against the majority, then Virginia
would have rejected the Constitution. The triumph of Virginia’s
Federalists was restrained and respectful before the defeated
minority. Members from both factions collaborated on the final
draft of amendments to be proposed to the First Congress.
The victors knew that they could not afford to antagonize the
considerable opposition that remained in the state, but privately
they were elated. And their triumph was only slightly impaired
when they learned that they were not, in fact, the crucial ninth state
to ratify. Unbeknownst to them at the time, New Hampshire’s
convention had reconvened and ratified the Constitutions a few days
before Virginia’s vote.
With ratification of the Constitution assured by no less than
ten states, the outcome of the remaining conventions seemed less
important, but they were by no means unimportant. New York
was a wealthy and populous state with a strategic port. And North
Carolina, with its vast territory to the west, would geographically
cut off South Carolina and Georgia from the rest of the union if it
failed to adopt. And both of these states had an imposing number
of Antifederalists in their midst. New York had always been a
20
doubtful case. Two of its three delegates to the Constitutional
Convention, Robert Yates and John Lansing, were part of Governor
Clinton’s political machine, and they had left the Convention early
when they became convinced that the Constitution, as it was
shaping up, was proposing a powerful central government that
would be unacceptable as far as New York was concerned. Without
the minimum two delegates at the Convention necessary to cast
a vote, New York was the only state besides Rhode Island which
did not vote in favor of the Constitution at the conclusion of the
Convention. New York’s remaining delegate, Alexander Hamilton,
signed the Constitution, but he could do no more than witness to
the fact that the other states present had voted in its favor. During
the ratification fight in New York, Hamilton would now have to use
all of his considerable political acumen to bring his state around.
The delegates to New York’s ratifying convention were unique.
In most other ratifying conventions, the Federalists had enjoyed the
advantage of attracting a greater number of delegates, or of having
the most prestigious members, or both. Virginia’s convention
had been the most evenly matched to date. But in New York, the
Antifederalists could boast a significant majority of delegates, and
they also had most of the ruling elites on their side. Having no
need to compromise or capitulate, they were determined either to
reject the Constitution or to accept it only on the condition that
amendments be added first. Hamilton believed that the Federalists’
only hope of success lay in the good tidings that ratification of the
Constitution had already taken place before New York’s convention
voted on the question. He arranged to have the earliest intelligence
from New Hampshire and Virginia, which had begun their
conventions earlier in the same month.
New York’s Convention was small, with only 53 delegates on the
opening day of June 17. And there were only a handful of delegates
21
who were regular contributors to the debates, though the speeches
were not as tilted toward the opposition as Federalists had reason to
fear. The debates in the earliest stages, in fact, were often desultory
and protracted. The Antifederalists, with votes to spare, may have
been content to allow the proponents of ratification talk themselves
out before going in for the kill. The Federalists may have been
content just to kill time with talk until they heard news from the
other states. That news finally came on June 24, when an express
arrived from New Hampshire informing the convention that the
Constitution was now ratified. The Federalists hoped that this news
would be a game-changer, but the Antifederalists insisted that the
circumstances changed nothing for them. The opponents to the
Constitution assumed that same air of insouciance on July 2, when
news arrived that Virginia had also ratified.
The truth, however, was that the Antifederalists’ resolve was
shaken. With the Constitution now ratified, and the single most
important state committed to adopting it without amendments, the
remaining question for New York was whether it would be a part
of the new government or not. It was unlikely that Congress would
now accept a conditional ratification. And if New York remained
on the outside, its citizens could not hope to have any influence
in the First Congress, where the vital debates over amendments
would likely take place. New York was in an especially ticklish
position, since it had previously hosted the Confederation Congress.
New York would be a serious contender for the seat of the new
government, but only if it was a part of it. Some even feared that
the all-important port city of New York (which strongly favored
the Constitution) might secede from the rest of the state and unite
with the ratifying states. If this happened, the remaining remnants
of New York—holding out against the rest of the union with only
Rhode Island for company—would be in a deplorable condition.
22
The debates throughout the convention mirrored Virginia’s:
focusing on the perceived defects of the Constitution and the
amendments that were deemed necessary to fix it. As in Virginia,
the only significant question to be decided was whether New York
would ratify merely with recommended amendments or conditional
ones. For a time, the opponents held firm, refusing to consider
anything but a ratification which was contingent on amendments.
Their compromise position seemed to be ratification with an
escape clause: New York would join the union, but it could back
out of the compact if their amendments were not adopted by
a specified period. But the Federalists insisted that either mode
would be rejected by Congress, and the experiment would therefore
exclude New York from the important first years of the new
government. Melancton Smith, the most eloquent spokesman for
the Antifederalists, was key to the ultimate resolution. He retreated
from his earlier stance and ultimately accepted that New York must
ratify the Constitution without conditions. His retreat transformed
the outcome of the convention and earned him many enemies from
among the Antifederalists. The Federalists, for their part, were
doing all they could to be accommodating toward the opposition.
After a labyrinthine succession of motions and countermotions
by the two factions, a slim majority finally voted to ratify the
Constitution. New York’s ratification came with a strongly-worded
recommendation for calling a second general convention to consider
adopting the amendments—more than 30 in all—that New York
had proposed. The convention’s final vote came on July 26: New
York had decided to ratify with a vote of 30-to-27. The Federalists,
who were mostly concentrated in the city of New York, were
jubilant. Federalists throughout the other states had reason to be
highly pleased.
The mood of the nation was only slightly dampened by North
23
Carolina’s surprise decision to reject the Constitution. The
dynamics of their convention had looked similar to New York—
with a 2-to-1 Antifederalist majority—but the opponents in this
state saw little reason to compromise. After allowing the Federalists
to dominate the debates for almost two weeks, the delegates
voted on August 2 to reject the Constitution by a vote of 184-to83. North Carolina also supplied its own list of recommended
amendments, which was mostly an augmented copy of Virginia’s
list. A government under the new Constitution was now inevitable,
but it would have to be formed, for now, without Rhode Island or
North Carolina.
BRINGING THE GOVERNMENT TOGETHER
W
hile New York was still debating whether or not to ratify,
the Confederation Congress was receiving the official notice
of ratification from the crucial ninth and tenth states, and it was
establishing the dates for the first elections which would choose
the members of the new government bodies that would displace
the outmoded legislature. The Constitution’s ratification was not
formally acknowledged until September 13. Congress called for
elections in the first two months of 1789, and established the first
Wednesday in March as the time when the new government would
convene. After much wrangling and politicking, it was determined
that the new capital, for the time being, would be in the same city
as the old capital. New York had been well-rewarded for its final
capitulation.
After the ratification was certain, many of the leading
Antifederalists were peaceably reconciled to their fate. Others were
still waiting to see what would become of the numerous lists of
proposed amendments supplied by the state ratifying conventions
24
(and, in the case of Pennsylvania, by a separate committee of
opponents to ratification). Although many states had requested
that individual rights or liberties be better secured under the new
Constitution, only Virginia and North Carolina had specified
that they wished to see a separate bill of rights added. Most of
the suggested amendments had sought to change fundamental
parts of the existing Constitution. The Antifederalists had been
especially fearful of broad Congressional power over taxation, the
military, and elections. Having lost the ratification fight, the most
ardent Antifederalists now placed their hopes in a second general
convention for the purpose of adopting substantive amendments to
the Constitution. They had more confidence in that prospect than
the other mode for proposing amendments named in Article V of
the Constitution: a two-thirds vote in the two houses of Congress.
Whichever mode was adopted for proposing amendments, it would
have to be followed by a ratification of three-fourths of the states.
Many Federalists agreed with the Antifederalists’ assessment of
the circumstances: a general convention would be more likely to
propose radical amendments than the First Congress. They also
feared that such a convention, were it to terminate in acrimonious
and unresolvable disputes between the states, would undermine
fatally the authority of the new government. For that reason, some
of the most far-sighted were already strategizing to outmaneuver
the Antifederalists by beating them to the punch. New York, in
a circular letter drafted by its ratification convention, had already
initiated the call for a general convention to consider amendments.
James Madison hoped to forestall this attempt and defuse the
lingering animosities toward the Constitution by proposing a set of
amendments within the First Congress. His proposal focused more
on individual rights and included only minor structural changes
to the constitutional system. He hoped that a proposed bill of
25
rights would mollify some of the more moderate critics of the
Constitution. He hoped, at the very least, that it would be enough
to bring North Carolina and Rhode Island in from the cold.
The above account borrowed heavily from Pauline Maier’s masterful, Ratification: The People
Debate the Constitution, 1787-1788. This book is the premier one-volume history for anyone
wishing to learn more about the gripping story of the Constitution’s adoption.
26
THE BILL OF RIGHTS CONTROVERSY
THE DEBATES AT THE CONSTITUTIONAL AND
RATIFYING CONVENTIONS
MADISON, A CONVERT TO A BILL OF RIGHTS,
CHAMPIONS THE CAUSE
RATIFYING THE 10 AMENDMENTS THAT BECAME THE BILL OF RIGHTS
28
THE DEBATES AT THE CONSTITUTIONAL AND RATIFYING
CONVENTIONS
A
dding a bill of rights to the U.S. Constitution became a
serious bone of contention during the ratifying debates, and
its subsequent adoption has since become, for many Americans,
the most important part of the Constitution. Yet there was no
foreshadowing of the looming importance of this question in the
Constitutional Convention. The subject of a bill of rights did not
even come up in the Convention until September 12, less than
a week before the summer-long Convention adjourned. George
Mason, who had been the primary author of Virginia’s Declaration
of Rights, admitted that he “wished the plan had been prefaced
with a bill of rights, and would second a motion, if made for
the purpose.” Mason’s idea did win over a few adherents, but the
motion lost on a tied vote following a very short and tepid debate.
After a grueling summer of divisive wrangling, the delegates were
exhausted. They were loath to open up any new business that would
detain them in Philadelphia any longer than necessary. That decision
would prove fateful during the ratification period.
Pennsylvania was the second state (after Delaware) to ratify
the Constitution, but it was the first to encounter any strenuous
opposition to it. Several Antifederalists objected that the new
Constitution lacked a bill of rights. In response, James Wilson
launched into the first and most comprehensive justification for
the Convention’s decision to omit one. Wilson urged his opponents
to consider how much the American Constitution differed from
the British constitution. The proposed Constitution was to be
established by “the people of the United States.” In Magna Carta, it
is the King who grants liberties to his subjects, but his powers are
otherwise presumed to be without limit. In America, it is the people
who grant power to the government, but their liberties are otherwise
29
presumed to be without limit. Therefore, a bill of rights was
unnecessary in a democratic government, one in which all powers
remain in the hands of the people.
In the second place, the United States Constitution differs from
both the British constitution and the various state constitutions in
being a government of enumerated powers. And “in a government
possessed of enumerated powers, [a bill of rights] would be not
only unnecessary, but preposterous and dangerous.” The liberties
named in a bill of rights (such as the freedom of speech, or the
right to a jury trial, etc.) are meant to designate certain powers that
government may not exercise (it is forbidden to regulate speech, or
try a suspect without the benefit of a jury, etc.). But the brand-new
United States government would not be like its predecessors: its
powers were already limited by being enumerated. Adding a bill of
rights, therefore, would explicitly deny to Congress powers it had
never been granted in the first place. Such a proscription made no
sense, and, even more ominously, it might open the door to the
dangerous doctrine of implied powers in Congress. Therefore, this
misguided attempt to further limit the powers of the new national
government through a bill of rights would have the perverse effect
of implicitly expanding national powers beyond the ones named
in the Constitution. Federalists elsewhere also argued that most
issues that would be addressed in a bill of rights would primarily
be regulated by the states, such as criminal cases and regulation of
religion. Since each of the states would continue to be bound by its
own bill of rights, a federal bill of rights was unnecessary.
It is unlikely that many of the Antifederalists were persuaded by
Wilson’s arguments explaining why a bill of rights was unnecessary
and dangerous, and the objections of Pennsylvania’s Antifederalists
were repeated throughout many other states. In Virginia, Patrick
Henry was the premier champion for a bill of rights. The
30
Constitution had already named some protections for rights, such
as habeas corpus; the problem was that the present Constitution did
not go far enough: “The restraints in this congressional bill of
rights are so feeble and few, that it would have been infinitely better
to have said nothing about it.” In other words, Wilson’s argument
that no bill of rights was needed because the government was
limited to enumerated powers was undermined by the small list of
specific rights that were listed in Article I. But the small list that
the Constitution provided omitted many of the most important
rights enjoyed by Americans. Henry said that his own mind would
“not be quieted” without a bill of rights, and he hoped his fellow
delegates would agree to “see the great objects of religion, liberty
of the press, trial by jury, interdiction of cruel punishments, and
every other sacred right, secured, before they agree to that paper.”
Indeed, Henry could see only one solution to the perceived defect in
the Constitution. Virginia’s Ratifying Convention must draft a bill of
rights (and other necessary amendments), and Virginia’s ratification
must be made conditional on the passage of those amendments.
Virginia’s Federalists had tried to argue, like Wilson, that a bill
of rights was dangerous or unnecessary in a federal constitution
of limited powers. They also defended the small list of rights
named in the Constitution, which Henry had accused of being
a woefully inadequate bill of rights. Rights such as habeas corpus
and jury trials in criminal cases were named exceptions to the new
government’s enumerated powers, since the new government would
be empowered to prosecute criminal cases. It was unnecessary
to explicitly protect the rights of speech and religion, however,
because the new government was never granted any power to
regulate these subjects. But the demands for a bill of rights from
the opposition were too strong for these subtleties. Finally, the
Federalists proposed a compromise. They urged that Virginia’s
31
convention should submit a proposal for a bill of rights along
with its ratification, to be considered by the First Congress and
the rest of the states after the Constitution was in force. By a slim
majority, Virginia ratified the Constitution with a list of proposed
amendments, among which was a bill of rights modelled after
Virginia’s own Declaration of Rights.
While these debates over a bill of rights were raging in the state
ratifying conventions, a similar war of words was being waged in
the press. The Antifederalist “Centinel” (No. 2) explicitly took on
Wilson’s arguments against a bill of rights. This Constitution may
be intended to be one of limited powers, he said, but “the lust
of power is so universal, that a speculative unascertained rule of
construction would be a poor security for the liberties of the people.”
Publius responded to the Antifederalist hew and cry in the Federalist
Papers by objecting that this dogged insistence that liberties could
not be safe without a bill of rights was a wholly new doctrine in
America. Madison pointed out in Federalist No. 38 that the Articles
of Confederation had contained no bill of rights, and no one had
thought their rights any less secure for it. Hamilton pointed out
that the people of New York (to whom the Federalist essays were
addressed) had no bill of rights in their own state constitution. The
greatest protection for rights, he continued, was a reliance on a rule
by the people. The whole of the Constitution, Hamilton insisted,
was a bill of rights.
While all of this noisy squabbling was taking place publicly—
in the state ratifying conventions and in the papers—a more
erudite and dispassionate debate was taking place in the private
correspondence between two close friends: James Madison and
Thomas Jefferson. Jefferson, who was in Paris at the time, had let
it be known to more than one correspondent that he believed the
absence of a bill of rights was a dangerous omission in the new
32
Constitution (and his sentiments were leaked by Henry during the
debates in Virginia’s Ratifying Convention). Jefferson wrote that
he was thoroughly unconvinced by the arguments from James
Wilson, that a bill of rights was unnecessary in a government whose
powers were already limited through enumeration. The doctrine of
limited powers, he said, was “opposed by strong inferences from the
body of the instrument.” He meant, along with Patrick Henry and
“Centinel,” that certain clauses in the Constitution seemed to imply
that Congress had broader powers than those specifically named
in the Constitution. Jefferson concluded “that a bill of rights is
what the people are entitled to against every government on earth,
general or particular, & what no just government should refuse, or
rest on inferences.”
In his reply, Madison admitted that he had never believed
the omission of a bill of rights was a “material defect” in the
Constitution. Nonetheless, he claimed that his “own opinion has
always been in favor of a bill of rights, provided it be so framed as
not to imply powers not meant to be included in the enumeration.”
The only reason that made him “anxious” to add a bill of rights
now, however, was because “it is anxiously desired by others.” There
was such a popular demand for the addition of a bill of rights that
Madison believed it must be respected in spite of any individual’s
personal opinion about the matter. He also hoped that including
a bill of rights, even if unnecessary, would tend to reconcile many
of the remaining opponents to the new Constitution. Nonetheless,
he gave his reasons why he personally didn’t think the question
was intrinsically important. His most interesting reason arose
from his understanding of the way democracies work. He claimed
that “experience proves the inefficacy of a bill of rights on those
occasions when its controul is most needed.” State governments had
been guilty of “repeated violations of these parchment barriers.”
33
Bills of rights were ineffectual in American states for a reason,
Madison thought: because democratic majorities always ignored
them at their convenience.
For each of Madison’s objections to a bill of rights, Jefferson
supplied a rebuttal. Jefferson admitted the truth of what Madison
had observed about democracies, but he thought Madison’s
conclusions were too absolute. He thought that, although a bill of
rights may not be “absolutely efficacious under all circumstances,
it is of great potency always, and rarely inefficacious.” More to the
point, all the evils that could be anticipated from having a bill of
rights were much less fearsome than the evils that might arise from
not having one. If the country were without a bill of rights when
one was needed, it would face evils that are “permanent, afflicting
and irreparable: they are in constant progression from bad to
worse.”
In addition to Madison’s supply of reasons against a bill of
rights, he had also included in his letter to Jefferson a couple of
reasons in their favor, one of which was unique and intriguing: “The
political truths declared in that solemn manner acquire by degrees
the character of fundamental maxims of free Government, and as
they become incorporated with the National sentiment, counteract
the impulses of interest and passion.” Madison saw the Bill of
Rights as a form of civic education; its solemn declarations could
be useful for teaching the citizenry the proper relationship between
them and their government. In this way it could help shape their
character and make tyrannical majorities less likely. This point was
repeated when Madison initiated the debates in favor of a bill of
rights in the First Congress. He said that, since these rights “have a
tendency to impress some degree of respect for them, to establish
the public opinion in their favor, and rouse the attention of the
whole community, it may be one means to control the majority from
34
those acts to which they might be otherwise inclined.” A bill of
rights might not always be useful as a weapon against overweening
government officials. But even a parchment barrier, if it becomes
part of the public consciousness, might make such abuses less likely.
What is perhaps most interesting about Madison’s list of the
benefits to be expected from a bill of rights was what he left out.
He appears to have overlooked the possibility that, if the executive
or legislature did abuse its power and violate one of the individual
rights traditionally protected by a bill of rights, aggrieved citizens
could find redress in the courts. Indeed, Madison had written to
Jefferson that, in such cases when the majority of people exercised
their will in a tyrannical manner, the popular will could not be
controlled by “an appeal to any other force within the community”
(emphasis added). It was Jefferson who supplied the missing
consideration: “In the arguments in favor of a declaration of rights,
you omit one which has great weight with me, the legal check which
it puts into the hands of the judiciary.” If the judiciary were made
sufficiently independent, thought Jefferson, then its most eminent
members would be able to withstand the popular current whenever
it abused the rights of some hapless minority. Madison must have
been convinced by this argument, because he included it among his
reasons for a bill of rights when he proposed his amendments to
the First Congress. And Jefferson knew when he wrote his letter
that he could relax and enjoy this verbal parry and thrust with his
good friend, because Madison had already decided in favor of a bill
of rights.
35
MADISON, A CONVERT TO A BILL OF RIGHTS, CHAMPIONS
THE CAUSE
B
y the time James Madison was running for Congress in 1789,
his conversion to the cause of a bill of rights was complete.
His change of heart may have come about in part because of
the persuasions of his good friend, Thomas Jefferson. It was
undoubtedly influenced by the debates in state ratifying conventions
and the assurances that the Federalists had made there. Madison and
others had all but promised skeptical Antifederalists that the First
Congress would propose amendments to the Constitution on those
points where they thought it had seemed most defective.
But Madison’s change of heart was also politically motivated
and politically astute. Many voters in the congressional district
surrounding his home county of Orange were anxious to see a
bill of rights in the new Constitution. Some of his constituency
were skeptical that this candidate, who had once expressed doubts
about the necessity of a bill of rights, was the right man to get the
job done. To them, Madison’s rival for the same House seat, the
erstwhile Antifederalist James Monroe, may have seemed like a safer
bet. During his candidacy, Madison wrote a few carefully worded
letters—directed to men who would be sure to leak the information
to the proper public channels—assuring them that his devotion to
a bill of rights was sincere. With his district heavily populated by
people who had been religious dissenters before the Revolution,
Madison’s commitment to the protection of religious freedom was
particularly important to his election. And once Madison had been
elected to Congress, he remained faithful to his campaign pledges.
He crafted his own proposal for a bill of rights and then worked
tirelessly to push it through the First Congress, at a time when many
Federalist representatives still thought a bill of rights an unnecessary
waste of time.
36
Considering how volatile the topic of a bill of rights was during
the Ratifying period, and what a cherished document our Bill of
Rights has become since its adoption, it was a surprising ordeal
for Madison to persuade Congress even to take up the matter in
the first place. But Madison was convinced that Congress must
make the business a top priority. Many states had ratified the
Constitution with the expectation that crafting amendments would
be the first order of business for Congress. Madison believed that
the circumstances under which some of the states agreed to the
ratification of the Constitution formed a “tacit compact” that
amendments would subsequently be added, and he felt it his duty
to see the business through personally. He was also concerned
about those states that had not yet ratified the Constitution, and
he believed that a few well-chosen amendments would bring them
into the fold. And Madison had one even more pressing concern.
He worried that the Constitution’s enemies were looking for an
opportunity to reformulate the government altogether, and that they
would act if Congress dithered too long. Madison accused some
of the most stalwart Antifederalists of clinging to “the insidious
hope of throwing all things into confusion, and of subverting the
[Constitution], if not the Union itself.”
The best defense against such enemies would be a good offense.
He wanted Congress to propose modest but popular amendments
as soon as possible “in order to extinguish opposition to the system,
or at least break the force of it, by detaching the deluded opponents
from their designing leaders.” Until that were done, Congress could
not even embark on other necessary business with confidence. But a
successful consummation of their efforts to amend the Constitution
would “kill the opposition every where,” and thereby “enable the
administration to venture on measures not otherwise safe.”
Not long after the nation’s First Congress achieved its first
37
quorum in the House of Representatives on April 1, 1789, James
Madison tried to arrange an early date to address the subject of
a bill of rights. On May 4 he gave the House notice that, while
he understood that many other pressing matters needed to take
precedence, he intended to bring the matter forward on May 25.
Other business made that date impossible, and his proposal was
postponed. Madison’s attempt to command the attention of the
House on June 8 again met with resistance, but he persevered.
Among the most strenuous objections to Madison’s timing was that
Congress had more urgent business: it first needed to establish a
reliable stream of revenue. Others pointed out that the clamor for
amending the Constitution was hardly universal. Only five of the
eleven states that had ratified the Constitution had requested that
amendments be added.
Navigating between the Scylla and Charybdis of apathy and
antagonism, Madison sought to achieve immediate support for
what he considered the most popular amendments. Plunging ahead
in spite of almost uniform opposition in the House, he formally
proposed his bill of rights. In the lengthy speech he delivered to a
mostly hostile House, he gave closely reasoned arguments why a bill
of rights was appropriate to this Constitution and why the Congress
should take up the matter without delay. Many of these arguments
were similar to the ones that were given in his correspondence
with Jefferson. In addition, Madison asserted—on four separate
occasions that day—that he considered that it was his duty to bring
forward these amendments at an early date.
Nearly every member who rose to reply to Madison’s proposal
spoke against it. Either it was wrong in itself, or brought forward
at the wrong time, or brought about in the wrong way. Those who
wanted to hurry the business or sweep it aside suggested submitting
Madison’s proposal to a special committee. The committee would
38
consider the matter separately and then make a report to the whole
House. Several members intimated to Madison that, by merely
bringing the matter forward, or passing it off to a select committee,
he had discharged his duty. Now he could give it a rest.
Those who were most in favor of amendments, including
Madison, were least inclined to see the matter relegated to a special
committee. Elbridge Gerry of Massachusetts—the first state to
include recommended amendments with its ratification—claimed
that a special committee would be “disrespectful to those States
which have proposed amendments.” Although he too thought
the question should be postponed, he wanted the House to take
it seriously when it was brought forward. Congress finally agreed
to discuss Madison’s proposal in a Committee of the Whole, but
the discussion would have to wait until July 21. When that date
finally arrived, Madison was disappointed again. After more lengthy
protestations that the House did not have time to take up the
question, it again changed course. The House ultimately decided
that Madison’s proposal, as well as the proposals submitted by the
states, would be shunted to a select committee composed of a
member from every state.
At least Madison was named as one of the members of that
committee. And, perhaps to his surprise, the select committee was
in fact extremely deferential to Madison’s proposal. The committee
reworded many of his suggested amendments, and considerably
abridged his preamble, but it neither added nor subtracted anything
substantive. In order to compile his list of proposed amendments,
Madison had pored over a confused and sometimes contradictory
multitude of recommended amendments proposed by the state
ratifying conventions. He collected, collated, and abridged these
proposals into a coherent body of suggested amendments.
Madison’s personal influence on our Bill of Rights, therefore, can
39
perhaps be seen most clearly when examining what he chose to
leave out states’ proposals for amendments, not what he included.
And during the debates in the House, the real bone of contention
was the amendments that had been proposed by the states but had
not been included in Madison’s proposal.
Chief among the excluded amendments were those that sought
to curtail congressional power over taxes, the military, and elections.
Madison believed that some of the requests from the states would
strike at the heart of important federal powers, so he abandoned
them altogether. He also defanged another suggested amendment
by carefully rewording it. Many Antifederalists had insisted that
the Constitution should adopt the same language as the Articles
of Confederation: that the states retain all powers not “expressly
delegated to the United States.” Madison had always believed that
Congress possessed only those powers that were enumerated in
the Constitution, but he had likewise always believed that it was
impossible to “expressly” state those powers. In Federalist No. 44
he had argued that the “expressly delegated” clause in the Articles
of Confederation was one of its defects, one that the Constitution
had remedied. The Constitution’s Framers had deliberately adopted
an alternative course by naming the most important powers of
Congress expressly, but then also adding that Congress possessed
the power “to make all Laws which shall be necessary and proper
for carrying into Execution” those expressly named powers.
Madison happily suggested an alternative amendment: that states
possessed all “reserved” powers not “delegated to the United
States.” Madison’s suggestion would ultimately become our Tenth
Amendment.
To many members in Congress, Madison’s proposal for a bill
of rights was most conspicuous for what it lacked. There were
so many amendments popular among Antifederalists that were
40
missing from the proposal debated by Congress that Aedanus
Burke accused the House of trying to pull a fast one. He said it
was offering something “like a tub thrown out to a whale” (a decoy
meant to keep a whaling ship safe). The disagreements over the
amendments that were actually proposed by Madison—as opposed
to the debates over amendments that some thought should have been
proposed—were relatively short and free from partisan squabbles.
Part of the amicable and expeditious quality of the debates may
have been attributable to the pressing business that Congress
was postponing in order to take up the Bill of Rights. Even more
important, however, was the familiarity of the rights themselves.
Most members of Congress already accepted the rights that were
proposed as being longstanding safeguards of liberty. The most
frequent remaining disagreements were over the specific wording
of some of these guarantees. Madison’s proposal went through
numerous alterations and abridgments in the House, first in a
select committee and then a Committee of the Whole. Beginning
on August 19, the House debated the amendments anew sitting
formally as the House of Representatives. By this time, Madison
was privately calling the whole process “nauseous.”
Although Madison won many battles, he lost others. Madison’s
greatest disappointment was probably the loss of what was
undoubtedly the most original contribution that he had made in his
initial proposal. Madison had suggested a clause that would have
forbidden states from violating “the equal rights of conscience, or
the freedom of the press, or the trial by jury in criminal cases.” No
state had requested that amendment. Indeed, the state ratification
conventions had been exclusively worried about erecting safeguards
against abuses of federal power; they did not want to give additional
powers to the federal government to act as guardian against the
states’ abuses of individual rights. This proposal was reminiscent
41
of Madison’s suggestion for a federal veto over state laws at the
Philadelphia Convention. Madison managed to save this clause from
being cut by the House, but he could not prevent the Senate from
giving it the ax.
Indeed, the Senate cut even further the amendments that
the House had already pared down. The House had submitted
seventeen amendments to the Senate on August 24, 1789, but
the Senate returned a draft of only twelve amendments a couple
of weeks later. After just a little more tinkering in a conference
committee, a final draft of twelve amendments was submitted to the
states. This draft included all of the amendments we recognize as
the Bill of Rights, but the first two—failing to gain the support of
three-fourths of the states—are unfamiliar to many people today.
What would have become the First Amendment was a complicated
rule of proportioning representation for the House, taking into
account the expected growth in population. What was submitted as
the Second Amendment specified that no law raising the salaries of
Senators and Representatives would “take effect, until an election
of Representatives shall have intervened.” This amendment likewise
failed to win enough immediate support. Nonetheless, unlike the
first amendment that had been proposed, it did not wither away.
RATIFYING THE 10 AMENDMENTS THAT BECAME THE
BILL OF RIGHTS
T
he United States Bill of Rights was adopted on December 15,
1791, when Virginia became the eleventh state to ratify all but
the first two amendments proposed by Congress. As late as 1799,
since the first two proposed amendments were considered to be still
in play, Madison and others were still referring to the freedom of
the press as the “third amendment.” What had originally been listed
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as the first amendment—relating to apportionment—was ratified
by several states, but not enough. In the end, it was Congress that
decided how to adjust representation in light of the changing
demographics in the United States. The amendment relating to
congressional salaries languished for two centuries, but was it
eventually resurrected. What had been submitted to the states as
the second amendment in 1789 was adopted as the Twenty-Seventh
Amendment in 1992. Were it not for that lag in state support, the
Twenty-Seventh Amendment would today be considered as part of
our Bill of Rights.
The amendments proposed by Congress were largely
welcomed by the states, but they did have many detractors. Once
again, the severest criticism of the amendments pertained to what
was missing. Virginia’s two Senators had both been Antifederalist
supporters of substantial changes in the Constitution. When they
submitted the proposed amendments to Virginia’s Governor, they
acknowledged that “it is with grief that we now send forward
propositions inadequate to the purpose of real and substantial
Amendments, and so far short” of Virginia’s wishes. They likewise
assured Virginia’s Speaker of the House “that nothing on our
part has been omitted to procure the success of those Radical
Amendments” that had been recommended by their state. Having
failed in their exertions, they could only anticipate with dread “the
necessary tendency to consolidated Empire” if the Constitution
were not “further Amended.” In response, the opponents in
Virginia’s legislature managed to delay approval of the Bill of
Rights, but the tide had definitely turned against the Antifederalists.
By and large, the United States had learned to embrace its new
Constitution, and the proposed amendments were warmly received
by the states. James Madison wrote to President Washington
that, “as far as I can gather, the great bulk of the late opponents
43
are entirely at rest.” He predicted that, if the delaying tactics of
Virginia’s Antifederalists were construed by the public as a way
to reignite “the war against the General Government, I am of
opinion the experiment will recoil on the authors.” On November
21, 1789—the day after Madison wrote these reassurances about
Virginia to Washington—North Carolina voted to ratify the
Constitution. The other recalcitrant state, Rhode Island, had been
seen as the problem child in the Union throughout the entire
Founding period, and it still did not seem in a hurry to ratify. But
its initial reaction to the amendments was promising. Even before
Congress’ proposed amendments had been officially submitted to
the states, Rhode Island’s governor had written to Congress and
President Washington: “These amendments, we believe, have already
afforded some relief and satisfaction to the minds of the people of
this state.” It did not afford sufficient satisfaction, however, for an
immediate ratification.
What is perhaps most interesting about the history of America’s
Bill of Rights is that, for a long time, no one called it a bill of rights.
That appellation wasn’t in wide circulation until after the Civil War.
There were qualities about these first Ten Amendments that made
them different from what Americans had come to expect in a bill
of rights. For one thing, they were appended to the back of the
Constitution, instead of being prefixed to the beginning. Second,
they had no hortatory statements about the rights of man and the
purpose of government (something that was a part of Madison’s
original proposal but which the House rejected). And finally, some
of the provisions in these Ten Amendments—particularly the Ninth
and Tenth—were entirely new, and did not seem to match people’s
conceptions of what a bill of rights ought to be. Be that as it may,
these Ten Amendments have since become the gold standard for
bills of rights in American states ever since. Indeed, they have
44
served as a model for the entire world. With the addition of the Bill
of Rights, the Creation of the Constitution was complete. What
remained for “We the People” was to perfect it.
CENTER FOR THE CONSTITUTION
MONTPELIER SEMINARS
CONTEXT—CROWDSOURCED DOCUMENTS
BILL OF RIGHTS—ONLINE
CONSTITUTIONAL FOUNDATIONS—ONLINE
46
AMERICA’S PREMIER CONSTITUTIONAL TRAINING CENTER
T
he Robert H. Smith Center for the Constitution at
James Madison’s Montpelier offers world-class on-site and
Web-enalbed educational programming. The Center’s goal is
to inspire participation in civic dialogue, improve the public’s
understanding of the founding principles of the United States, and
enable citizens to deepen their understanding and participation in
our democracy.
MONTPELIER SEMINARS
M
ontpelier Seminars are a unique professional development
opportunity for anyone interested in the U.S. Constitution,
the Bill of Rights, or learning about the rights and responsibilities
of citizens. Participants in a Montpelier Seminar will live and study
of the grounds of James Madison’s Montpelier, one of the central
sites of the American constitutional founding.
Each of the Montpelier Seminars encompasses a consisten core
of knowledge about the pricniples of American constitutionalism—
popular sovereignty, fundamental law, good government, full
citizenship, and human liberty. They also highlight the systematic
and persisting contrast between Federalist and Antifederalist
approaches to the Constitution.
Participants will receive a collection of primary documents in
advance of the seminar, specific to the content of each program,
which will be the basis of most discussions. They include writings
by James Madison, sections of the The Federalist, selections from
Antifederalist writers, and other fundamental documents.
montpelier.org/seminars
47
C
onText is a groundbreaking tool developed by the Robert
H. Smith Center for the Constitution at James Madison’s
Montpelier in partnership with the Brookings Insitution. Working
with an interdisciplinary group of historians, political theorists,
lawyers, technological innovators, educators, and you, we are all
together crowdsourcing the most important documents in history.
With ConText you can:
• explore documents by browsing text
• read annotations by our scholars
• add your own observations and commentary.
In the process, you will delve into each document’s historical
context and discover its relevance to the contemporary world.
Montpelier’s Center for the Constitution continues to innovate
and explore new ways of illuminating Madison’s contributions to
America’s experiment in constitutional self-government, and in
Madison’s words, the “cause of Liberty throughout the world.”
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THE BILL OF RIGHTS
The Bill of Rights is one of the most cherished parts of
the Constitution—it is a touchstone for the protection of the
most basic and important rights that Americans can enjoy and a
crucial vehicle by which citizens can assert protections against the
government.
CONSTITUTIONAL FOUNDATIONS
The United States Constitution is the longest operating written
charter of government in the world. Explore each of the articles of
this foundational document, explore such concepts as Congress, the
Executive, the Judiciary, the States, Ratification and Amendment,
and the People.
montpelier.org/courses