A three-year process of adopting a new constitution, violent rhetoric and violent mobs, fears of a dictatorial central government, threats to secede, multiple factions and diverse interests are coming in chaotic conflict. No, I’m not describing Egypt or other countries where the Arab Spring has opened opportunities to make a new beginning; I’m talking about the United States.
It’s worth reminding ourselves about the actual history of how our constitution came to be adopted for two reasons. First, that story is too often painted as a pious and unanimous process conducted by eminent gentlemen who held elevated discussions of philosophy and logic while being swathed in mellow light and stirring music. The truth is much messier, more dramatic and (therefore) much more interesting. Secondly, we have completely unrealistic expectations about countries like Egypt when we demand they instantly invent, organize and implement a functioning near-perfect democracy that everyone accepts as legitimate – and do so in a month or two.
Ratification
My source for this article is the book “Ratification: The People Debate the Constitution, 1787-1788” by Pauline Maier. This well-received effort by an eminent historian (who has also written about the Declaration of Independence) gives the blow-by-blow account of the contentious process of ratification. I won’t provide specific footnotes, but most of the detail here is drawn from this excellent book.
It’s forgotten now, but the United States has had two constitutions. The first was the Articles of Confederation. From 1781 to March of 1789, this was our governing document, and it was a flop. Each state had one vote in the national legislature; the central government could only ask states for taxes and it was easy for one state to veto actions. On the other hand, it did introduce term limits for legislators and invited Canada to join the new “confederation” of the United States.
By common agreement this was just too weak a constitution. The national government couldn’t do anything, and in particular, it couldn’t manage the finances, debt and credit of the United States in relation to other countries.
I won’t go into the details of the Constitutional Convention that met in Philadelphia from May to September of 1787 save to note that it took several months, it met in secret and that it exceeded its authority both in what it proposed and in how it proposed it should be adopted.
Once the convention had finished its work, each state had to decide if it would ratify the new document. When nine states of the 13 did so, it would come into effect – but only for the states that had ratified it. And then the fun began.
13 debates
The ratification process was not a single national campaign leading to a vote on a single day – like a presidential election. Instead each state separately decided and did so with processes and schedules that varied. In general, each state selected delegates to a statewide convention and then that state convention debated the proposed constitution and voted to ratify it or not.
So it was a highly fragmented process with fights at the local level to pick delegates and then fights at each state. Some local gatherings instructed their delegates how to vote, some did not. There was more than one riot. Some states were looking to see how others voted and so hung back. It is worth remembering the state of transportation and communication in those days. It took more than a week for either a letter or a traveler to get from one end of the nation to the other. And there was no way of communicating faster than you could travel.
In some states, ratification was not contentious. By early January of 1788, four states had ratified, three by unanimous vote. But success was not guaranteed. New York and Rhode Island were suspicious of increased federal power. Virginia, considered the most powerful state at the time, had delayed its convention till June.
What were the issues?
The power of the government
Much concern and outright opposition to the new constitution concerned a fear that the central government was going to be all-powerful, dictatorial in fact. The ability to levy direct taxes caused alarm. Perhaps it would act to impose ruinous taxation or maybe even abolish the states entirely. Since a particular state would be bound by actions of other states, there was a fear that a group of states would act to ruin other states. And why did the new Constitution say that sovereignty came from “we the people” not “we the states”? That was a suspicious change, some thought.
The problem in defending against these concerns is that proponents of the constitution, now being called Federalists, clearly did want a strong national government and wanted a republic (not a pure democracy) to limit control to serious people, to those who had enough money and land that they would behave responsibly. They wanted the United States to take its place on the world stage and negotiate and deal with other countries, and in order to do that, the central government had to have more power.
Opponents were worried about there being too few representatives in the House – and proposed rules about the size of congressional districts that, were they still in effect, would lead the current House of Representatives to have thousands of members. They also thought the terms of office for representatives, senators and the president to be too long (at least one state had elections for governor every six months). That the Congress could control aspects of local elections seemed an invitation to tyranny. It was also common to demand that there should be a formal executive council to advise the president.
The new Constitution did nothing to protect navigation on the Mississippi, a concern to those in Kentucky (then still a part of Virginia). Maybe one of the larger states, such as Virginia, might be better off by itself, so failing to join the new nation was a distinct possibility.
The media
While we think of media manipulation as a new phenomena, proponents of the constitution were shameless in managing the press to get a favorable hearing for the constitution. Mobs stormed newspaper offices to protest coverage they disagreed with.
We’ve been led to think that the series of articles by Hamilton, Madison and Jay now known as the Federalist Papers was a sort of bible for proponents and semi-official commentary on the Constitution, but Maier argues they had little impact outside of New York. There were, in fact, many other pamphlets, articles and essays published by various advocates and opponents.
Bias certainly extended to how the state convention debates were reported with some scribes giving massive, approving coverage to one side but barely reporting the speeches of the other.
To nine and beyond
Ratification proceeded slowly through the spring and summer of 1788 and not until Virginia (by 89-79) and New York (30-27) ratified in June were there the states needed to put the Constitution into effect and start the process of setting up a new national government. Rhode Island had actually voted down the new constitution in a state-wide referendum.
George Washington had to borrow money to finance his trip to New York City to be sworn in as president in April of 1789. He took the presidency of a nation with only 11 states. North Carolina came in later that year, but 1790 found Rhode Island still holding out due to concerns about slavery and various financial matters. When that state’s ratifying convention again failed to even vote on the Constitution, Congress had enough. In May of 1790 the United States Congress voted an economic embargo, prohibiting all trade with Rhode Island and promising fines and jail time to anyone who tried to break the law.
That caused the coastal cities of Rhode Island, facing financial ruin, to start to organize to secede from the state and join the union on their own. Finally, grudgingly, nearly two and a half years after the Constitution was drafted, Rhode Island became the 13th state, but even then only by a vote of 34 to 32.
The Bill of Rights
It is commonly asserted that some states ratified the constitution only with the promise that a bill of rights would be added to it. That’s more or less true, but the amendments proposed by the states during the ratification process – New York alone proposed 32 of them – generally bore little relationship to the ones Madison drafted for Congress to consider. Madison actually wrote them as edits to the text rather than being added at the end. Madison’s draft got drastically rewritten by the House which passed 17 amendments that the Senate rejected. The Senate then sent a revised package of 12 to the House and those got sent to the states.
Ten of the 12 were approved in 1791 (an 11th was not ratified until 1992). However, the term “Bill of Rights” was not used by anyone at that time; the name was adopted later.
Ironically, one of the amendments Madison wrote would have protected citizens against the states violating some of the fundamental rights named in the Bill of Rights. It took years of Supreme Court decisions interpreting the Civil War era 14th amendment to do that.
Politics: the art of the possible
I think we’d be better served by our histories if we acknowledged the conflicts involved. We line all the founding fathers up as if they were a unified group without realizing that, for example, Patrick Henry of “give me liberty or give me death” fame was the leading, and very vocal, opponent of the new constitution or that George Washington took almost no part in the ratification process.
Out of the chaotic process of deliberation came an enduring document. That isn’t so much an accident, but a reality: When there is open deliberation, and all ideas and groups knock together, the process may be messy and not always very edifying, but the end result is better than having a few decide in secret.
That’s democracy.