Tuesday, June 21, 2016

How the Constitution was almost not ratified

"The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same."

- Article 7 of the United States Constitution

The Constitutional Convention

Our national debate over the Constitution is as old as the Constitution itself, with origins to be found in the events of the Constitutional Convention (where its particulars were first debated by the men present at the convention). The framers of the Constitution disagreed with each other vehemently on exactly what the document should say and do (and how it should say and do it); and a number of the men present at the convention refused to even sign the document after the debates at the convention. As many of them well knew, though, the national debate over what they had written was just beginning; since with the strict secrecy of the convention's proceedings at the time it was still going on, the nation didn't know what was in the document until after the finished product of the convention was presented to the nation; and many of them weren't all that happy over the things they found in it (to put it mildly).

A replica of Independence Hall, which is not surrounded by
high-rise buildings (that don't belong in the period) the way the real one is today

Why did so many people suspect the Constitution was "dangerous"?

Part of this may have been that they got all their surprises about the document at virtually the same time; since they had not been witness to the deals and compromises that had taken place so gradually during the events of the convention; and a gradual revelation of the document's contents was simply not possible after the nation's curiosity had been whetted by the "secrecy rule." (Which is not a criticism of the "secrecy rule," I should make clear; but it was natural for the people to wonder about it; and many of them assumed that the convention had something to hide in this regard, after the secret proceedings had been continuing for some four months without news.) The supporters of the Constitution all knew that they faced an uphill battle when they presented the final document to the people, and this uphill battle is today known as the debates over ratification (or the ratification debates) - arguably the most important debates in the nation's history, because of the sheer number of issues that it affected (then and now). If I might point this out, it affected the very democratic process by which all future political issues would be debated in America - and by extension, in a number of other places as well.

Newspaper advertisement for the Federalist Papers, 1787 (a part of the ratification debates)

The alternative: Depending on "accident and force"

Alexander Hamilton asks rhetorically in the first of the Federalist Papers "whether societies of men are really capable or not of establishing good government from reflection and choice" (as they were called upon to do in the ratification debates), or "whether they are forever destined to depend for their political constitutions on accident and force" - a frightening alternative that was a real possibility at that point (Source: Federalist No. 1). "Reflection and choice" is a good description of how the country acted next, in deciding whether or not to ratify the document; and even the most zealous of the Constitution's supporters did not expect this to be accomplished overnight. The Constitution was a revolutionary document with many far-reaching effects on the future history of the United States, and so the country had good reason to think about it carefully - and examine every aspect of it in painstaking detail - before deciding whether or not to adopt it as the "supreme law of the land" on a permanent basis (as they were called upon to do). They'd only known about the Constitution for a comparatively short while, after all; and they needed some time to get used to this new idea before giving their permanent stamp of approval to it (which could be perpetual).

The Constitution

The charge that the Constitution was "illegal"

The part of the Constitution that may have had the greatest influence on these debates was the one that actually broke some prior laws, which was Article 7. Specifically, it said that "The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same," with the significance of this passage coming from its only requiring "nine" states (rather than all thirteen) to put the document into effect. The reason that this broke some prior laws was because the document it replaced - the "Articles of Confederation," to be specific - had a part of it saying that "nor shall any alteration at any time hereafter be made" to the existing system of government, "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every state" (Source: Article XIII). Thus, total unanimity was required under the prior laws to do anything like pass a new Constitution; and the instructions to the delegates of the Constitutional Convention specifically forbade many of them from doing so. This not only affected the rules of the game for what was needed to pass the Constitution, but also ignited a fierce procedural debate over whether the country as a whole had a right to adopt this Constitution, without the unanimity required by these prior laws - a debate that was more than merely theoretical, given that the state of Rhode Island had refused even to send delegates to the Constitutional Convention, and was sure to try and boycott the debates over ratification as well. This made the unanimity required by these prior laws virtually impossible to get in practice (perhaps absolutely impossible); and the Constitution simply wasn't going to get passed, if the "unanimity rule" was followed here.

James Madison

John Trumbull's Declaration of Independence

Responses to the illegality charge

James Madison later responded to the charge of illegality in the Federalist Papers, by quoting - or rather, paraphrasing - from the Declaration of Independence itself; which said that the people could "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness" - something which would not have been possible under a strict adherence to prior laws. (Source: Madison's paraphrase in Federalist No. 40) He thus compared violating prior laws to pass the Constitution, to the colonies' decision to break the laws of the mother country (Great Britain) in declaring their independence from it to begin with - a claim so loaded, and so revolutionary, that it's almost impossible to overstate just how significant it was at that time; given the dire straits that the colonies were in, from having a government so weak as the one of that time. The Constitution, in other words, was a Second American Revolution; and the situation was so desperate - and so similar to the one faced by the colonists, when rebelling against King George III - that the states were justified in breaking the laws to pass this Constitution, just as they had been in rebelling against the British and establishing their own country to begin with. (And lest this point not be understood, let me say explicitly that this was all true - I think it really was that desperate. The union was about ready to fracture if the new Constitution was not passed; and the thirteen states were in very real danger of anarchy, bankruptcy, and even civil war - hence the impetus for a Constitutional Convention to begin with.)

Interior of Independence Hall

Pro-Constitution strategy of speed

Perhaps partly because of this, the supporters of the Constitution decided on a strategy of speed in getting the Constitution passed; so that the opponents of ratification might not kill it through excessive delay and prolonged debates. Some amount of debate was reasonable (and even necessary) for a plan as extensive and far-reaching as the "proposed Constitution," and the people needed time to inspect it thoroughly. Nonetheless, too much would have been a catastrophe, as it would have made the public standards of acceptability so unreasonable as to be impossible to meet; and at some point, the people needed to make up their minds. So the debate was fought in one state after another, as each state debated the merits of the Constitution piece-by-piece, and (in some cases) clause-by-clause. Some issues were unique to particular states, while others were debated in virtually every state; but the consistent thing about these debates is that they were prolonged, and that they were intense - with both sides growing tired of hearing the others' arguments, after this had been going on for some time. The debates actually dragged on for months (and even years); which was the degree of "reflection and choice" that the people were willing to give it. They did indeed "establish good government" by reflection and choice, as Alexander Hamilton had predicted.

Alexander Hamilton

The issues they debated about

Time does not permit anything but a brief overview of the issues they debated about, but suffice it to mention a few examples which would be difficult to leave out of this post. One was the taxing power of the Congress, which the Constitution's opponents believed dangerously unlimited. Another was the issue of slavery, which was addressed in the Constitution in a way that the Southern slaveholders found satisfactory, but which drew the ire of many Northern states (and understandably so), as it gave constitutional power to the institution of slavery. Another was the power of the "executive branch" (or the presidency), with the very idea of executive power being so strongly suspected in eighteenth-century America (as "royal" and "monarchical") that the Constitution's predecessor had not included an executive branch at all - just a Congress with limited power. Still another was the "necessary and proper" clause, which gave the Congress the power to make all laws which shall be "necessary and proper" for putting the Constitution's passages into effect (Source: Article 1, Section 8, Paragraph 18) - something that the Constitution's opponents saw as dangerously vague about how much power was granted. (Even some notable Founding Fathers - notably, Patrick Henry - made arguments of this kind against the Constitution.)

Patrick Henry

The "bill of rights": The most important issue

But the issue which drew its opponents' fire the most - and the one that those opponents would eventually win on - is the Constitution's lack of a "bill of rights", the only real concession that the Constitution's opponents actually got (and a very important one, I should mention). Some states actually considered refusing to ratify the Constitution, unless they first came up with a bill of rights that was sufficiently satisfactory; and many states that did ratify the Constitution sent recommendations about what to include in it, along with the completed documents for ratification - a tactic that drew the ire of the Constitution's opponents, because they advocated making ratification conditional upon getting the needed concessions up front - a delaying tactic which might have succeeded in stopping the Constitution, if it had been allowed to be implemented. (But that's a topic for another post.) They essentially made the argument that ratifying the Constitution before these changes were made, on the strength of political promises to "do so later," was inherently dangerous (and thus unacceptable). There may have been some truth in this, depending on your point of view; but fortunately, the pro-Constitution side lived up to its reluctant promises to include one afterward, and so the country was better off as a result. All things considered, things worked out as they should have; and the country was spared from the kind of tyrannical government that might have followed a Constitution without a bill of rights - a danger that the Constitution's opponents can accurately say they prevented through their steadfast efforts on this issue. (Not all of the opposition to the Constitution was misguided, I should make clear; as the document's critics of that time had some real points to make - much more, I think, than the document's critics have today.)

United States Bill of Rights

Conclusion: We actually owe our freedom to both sides (and here's why)

In the end, the country got both an improved constitution and a national bill of rights; and so each side could claim some accomplishments in the victories it had gained. Even their defeats were actually victories for the American people in the long run, and we can well be glad that the ratification debates turned out as they did; as we live in a society with a free system of government created by the one side, and basic human rights protected by the other - with the compromises actually turning out better than total victory for either side would have done. In a very real sense, it can be said that we owe our freedoms to them both; and that each side had much of value to contribute to the democracy we live in today.

Footnote to this blog post:

In the very opening lines of the Federalist Papers, Alexander Hamilton wrote that "After an unequivocal experience of the insufficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world." (Source: Federalist No. 1)

If you liked this post, you might also like:

The Constitutional Convention: A notable movie about these events

So what exactly are the "Federalist Papers," anyway?

The Bill of Rights: Historical context and strict construction

Part of a series about
The Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
The Second Amendment: Constitutional debates on the people's right to bear arms
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

← Previous page: Miscellaneous (Amendment Process etc.) - Next page: The "Federalist Papers" →

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