After some time for debate and argument over the positives and negatives of the proposed Constitution, it was time for each state to determine whether to ratify or reject it. At the end of the day, it was apparent that the state ratifying conventions were not content to unconditionally accept the new Constitution as drafted.
Despite the arguments of Hamilton and other Federalists that the new constitution inherently limited centralized authority, it nevertheless became clear that specific protections were going to be necessary to persuade enough states to ratify the Constitution. Ultimately, these extra protections would become known as the Bill of Rights, which included the Tenth Amendment. But the road to including a Bill of Rights was not easy.
Most delegates to state ratifying conventions agreed protections for such rights including freedom of speech, freedom to exercise religion, the right to bear arms, the right to a jury trial, and right to be free from cruel and unusual punishment were needed. But what about state rights?
Interestingly, the process itself for ratifying the Constitution was connected to the question of the nature of the newly proposed federal government. The mechanism devised for ratifying the new constitution was the constitutional convention that would be called in each individual state. The people, in theory, of each state would elect their own delegates to these conventions for the sole purpose of approving or disapproving of the new Constitution.[1] The approval or rejection by the people of each state was to be transmitted to the Continental Congress.
This process for constitutional ratification was very intentional. Notice it was not the individual state legislatures who were permitted to vote. Rather, it was “the People” of each state organized in ratification conventions. This was quite purposeful because, in theory, the power of the federal government was to act directly on the people as sovereign. This was a significant change from the Articles of Confederation, in which the individual states, as sovereigns, participated in a confederation that could not act directly on the people of each state.[*]
The arguments in favor and opposed to the Constitution contained in the Federalist and Antifederalist writings and debated in meeting houses and taverns throughout the thirteen states came to a head during these state ratifying conventions. As noted, these conventions were not regular meetings of the state legislatures, but special conventions organized for the sole purpose of approving or rejecting the Constitution as proposed and recommended by the delegates to the federal Constitutional convention in Philadelphia. Citizens of each state elected delegates of all backgrounds and professions to thirteen state ratifying conventions to debate, discuss, and make a final decision on whether the Constitution would be adopted.
Not all of the debates and discussions in the state ratifying conventions were recorded. However, from the journals that were kept and newspaper reports documenting events during the conventions, those both in favor and opposed to the Constitution believed and intended that the new federal government would be limited in its scope of authority, and that powers not delegated to the federal government would be reserved to the states. So strong was this contention that ultimate ratification of the new Constitution would likely have been impossible without the agreement to pass a Constitutional amendment reiterating the limited nature of the new federal government.
What became clear as the ratification debates progressed was that a middle ground was being developed between the Federalist and Antifederalist positions. In fact, there was a faction of delegates to state ratifying conventions that approved of the proposed Constitution as written, so long as additional amendments were included that protected individual rights and liberties.
Pennsylvania
This concern over the extent of central government authority first became clear during the Pennsylvania ratifying convention that took place in November and December of 1787. Robert Whitehill, a prominent politician representing the central Pennsylvanian county of Cumberland, was an Antifederalist with significant reservations over the power that the federal government could exercise. Whitehill argued before the convention that “the proposed constitution must eventually annihilate the independent sovereignty of the several states.” Whitehill believed the Constitution was written in such a way that it would progressively expand at the expense of the sovereign authority of the states.
Whitehill eloquently explained that the new Constitution planted the “seeds which will vegitate and strengthen in proportion to the decay of state authority, and which will ultimately spring up and overshadow the thirteen commonwealths of America, with a deadly shade.” Whitehill was particularly concerned with the potential for abuse under the Necessary and Proper clause found in section 8 of Article I.[2]
Not surprisingly, James Wilson took exception to Whitehill’s characterization of the Constitution that Wilson helped to draft. Wilson essentially agreed with Whitehill that a new form of government consolidating all authority into one government and abolishing the states would “be improper for this country, because it could not be proportioned to its extent on the principles of freedom.” Rather, Wilson contended that the new government was founded on the existence of the state governments.[3] Wilson explained that “of all [the Constitution’s] parts, that the objects of this government are such, as extend beyond the bounds of the particular states. This is the line of distinction between this government, and the particular state governments.”[4]
Wilson’s arguments apparently did not convince Whitehill that the new federal government would not constitute a danger to the existence of the states. With a procedural tactic that would be attempted in other subsequent state conventions, Whitehill moved to adjourn the convention to consider possible amendments to the Constitution in effort to ease Antifederalist concerns.
As part of his motion, Whitehill proposed fifteen amendments to be considered. Among these was an amendment stating, “That the sovereignty, freedom and independency of the several states shall be retained, and every power, jurisdiction and right which is not by this constitution expressly delegated to the United States in Congress assembled.”[5]
Whitehill’s motion to adjourn to consider his proposed amendments was defeated. Opposition to the motion was based on his request to adjourn, rather than the amendments themselves. If Whitehill had proposed to simply recommend the passage of his amendments upon ratification, his motion may have prevailed. Nevertheless, the Pennsylvania convention voted and approved of the Constitution as written.
Connecticut
The next battleground over the extent of federal authority took place in Connecticut. Oliver Ellsworth, a delegate to the Constitutional Convention and future Supreme Court justice, supported the new Constitution and directly attacked the notion that dual sovereignties could not exist over the same territory. In response to Antifederalist arguments that two legislative bodies could not operate in the same jurisdictional space, Ellsworth responded,
“why can they not? It is not enough to say they cannot. I wish for some reason. I grant that both cannot legislate upon the same object, at the same time, and carry into effect Laws which are contrary to each other. But the constitution excludes everything of this kind. Each legislature has its own province; their limits may be distinguished.”
Here, Ellsworth was arguing for the imperium in imperio concept that wrought so much consternation to the British government and loyalists during the Revolution. Ellsworth acknowledged that the new federal government would act on individuals directly but noted “This constitution does not attempt to coerce sovereign bodies, States in their political capacity.”[7] Under the influence of Ellsworth and others, the Connecticut convention would proceed to ratify the Constitution as proposed.
Massachusetts
As the home of some of the most vocal revolutionaries, the Massachusetts ratifying convention was crucial if the Constitution was ultimately going to be accepted. But ratification was no easy task in Massachusetts.
Charles Turner, a retired minister and politician, was a critic of the Constitution as proposed. As someone who challenged royal governor Thomas Hutchinson in 1773 by questioning whether colonists were subject to the absolute authority of Parliament, Turner was very much concerned with preserving liberties for the people of Massachusetts. Turner also understood the need to reform the Articles of Confederation to provide for a more “energetick government”. Yet, Turner explained,
“Relinquishing an hair’s breadth in a constitution is a great deal; for by small degrees has liberty in all nations, been wrested from the hands of the people. I know great powers are necessary to be given to Congress, but I wish they may be well guarded.”[8]
Amos Singletary, a former gristmill owner from Worcester County, also had concerns with the Constitution as proposed. Singletary was concerned with the learned elites taking advantage of the poor and illiterate. For Singletary, the new Constitution provided the opportunity for the “lawyers and men of learning” to institute a new government that would “swallow up all us little folks, like the great Leviathan…just as the whale swallowed up Jonah.”[9]
Having been silent throughout most of the debates, John Hancock moved to approve the ratification of the Constitution, but with recommended amendments. Hancock was elected the presiding officer of the Massachusetts ratifying convention and would certainly have been considered one of the wealthy elite that Amos Singletary was referring to. In order to “Quiet the Apprehensions of Gentlemen” who had grave concerns over the new Constitution, Hancock proposed that the convention ratify the Constitution while recommending the passage of amendments to the Constitution upon ratification.[10] Among the amendments Hancock proposed, the very first was that “it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.”[11]
Hancock’s efforts were sufficient to persuade enough Massachusetts delegates to vote in favor of ratification along with the recommended amendments that were included in the official form of the Ratification of Massachusetts submitted to the Continental Congress. This device of adding recommended amendments to the official ratification of the Constitution would prove useful and was often replicated in other states in order to convince skeptical convention delegates. Like the amendments proposed by Robert Whitehill in Pennsylvania and John Hancock in Massachusetts, these amendments would inevitably contain an amendment that replicated or closely followed the language in Article II of the Articles of Confederation.
Virginia
Among those states, and perhaps one of the most important considering its size and influence, was Virginia. George Mason, a delegate to the Constitutional Convention, was convinced the Constitution as drafted resulted in a consolidated federal government, which he believed “is one of the worst curses that that can possibly befall a nation.” Mason insisted that a line needed to be drawn between the federal and state governments to “prevent that dangerous clashing of interest and power, which must, as it now stands, terminate in the destruction of one or the other.” Mason was also convinced that the power of the federal judiciary would result in the “annihilation” of the state governments. Mason made it clear that he would only support to ratify the Constitution if amendments were introduced to address his concerns.[12]
Patrick Henry proposed a set of amendments to the Constitution that he insisted should be included before Virginia ratified the Constitution. An amendment that reserved to the states powers not delegated to the federal government was among those amendments.[13] James Madison, repeating arguments he made in the Federalist Papers, responded that the new government was not entirely consolidated, or entirely federal. Madison continued to rely on the assertion that the states would be able to protect their own authority by electing senators to Congress and that the powers of the federal government were specifically enumerated.[14]
The delegates to the Virginia ratifying convention ultimately agreed to ratify the Constitution along with a recommendation for amendments attached to its ratification. Henry objected to not including a bill of rights as a required condition of ratification, but a majority of delegates agreed it was important to ratify the Constitution without additional delay and included only recommended amendments. The amendments took the form of a bill of rights (appended to the end of the Constitution), but others were changes to the body of the Constitution itself. The first of those amendments that Virginia recommended to be included in the body of the original Constitution stated, “That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.”[15]
Other States
Other states during the ratification process also offered their recommendations for an amendment that made it clear the powers of the new federal government were to be limited. These amendments were clearly drawn from Article II of the Articles of Confederation, although the language was modified.
South Carolina delegates did not provide a list of recommended amendments but did find it sufficiently important enough to declare in its ratification statement that “no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”[16]
In New Hampshire, the delegates recommended an amendment declaring that “all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.”[17]
New York set out a detailed proclamation stating, “that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same[.]”[18]
North Carolina with a more simple statement recommended an amendment stating “that each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”[19]
The last state to ratify the Constitution, Rhode Island, proclaimed in its ratification statement “That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”[20]
The intention of most delegates to state ratifying conventions was clear: the authority of the federal government was to be significantly limited, while all remaining authority would remain with the individual states. The Antifederalists were adamant about it and the Federalists appeared to be willing to go along with it if meant ratification of the new Constitution. Even Madison, who insisted a Bill of Rights was superfluous, recognized the practical reality that to secure ratification of the Constitution, amendments would be needed.
[*] In this chapter, the approval of individual states will be referenced with the understanding that references to individual states refers to the people of each state’s ratification convention, and not their legislatures.
[1] U.S. Const, Art. VII.
[2] Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and letters During the Struggle over Ratification, Part One (New York: The Library of America, 1993), 811-12.
[3] Ibid, 841.
[4] Ibid, 845.
[5] Ibid, 871-75.
[6] Ibid, 882.
[7] Ibid, 884.
[8] Ibid, 897-98. –
[9] Ibid, 906.
[10] Ibid, 921-22.
[11] “Ratification of the Constitution by the State of Massachusetts; February 6, 1788”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratma.asp.
[12]Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and letters During the Struggle over Ratification, Part Two (New York: The Library of America, 1993), 609.
[13] The text Henry’s proposed amendments was not recorded in the records of the convention. The nature of the proposed amendments can be gathered from those who responded to their proposals. See Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 294-96.
[14] Bernard Bailyn, The Debate on the Constitution, Part Two, 619-20.
[15] “Ratification of the Constitution by the State of Virginia; June 26, 1788”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratva.asp.
[16] “Ratification of the Constitution by the State of South Carolina; May 23, 1788”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratsc.asp.
[17] “Ratification of the Constitution by the State of New Hampshire; June 21, 1788”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratnh.asp.
[18] “Ratification of the Constitution by the State of New York; July 26, 1788”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratny.asp.
[19] “Ratification of the Constitution by the State of North Carolina; November 21, 1789”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratnc.asp.
[20] “Ratification of the Constitution by the State of Rhode Island; May 29, 1790”, The Avalon Project, http://avalon.law.yale.edu/18th_century/ratri.asp.
