The Six Stages of Ratification

Article VII of the proposed Constitution provided for its ratification by three quarters of specially called state ratifying conventions. Once we get the ratification of a minimum of nine popularly elected state conventions, then this proposed Constitution will be "this Constitution" between the nine or more that signed. It will not cover the four or fewer states that might not sign. This mode of adoption is a significant departure from the Articles of Confederation. For the Articles to come into effect, all the state legislatures had to agree. Even if only one state disagreed, the Articles were not operative on any of the states. Under the Articles, moreover, any revision or change to the articles of agreement, had to receive the unanimous consent of the thirteen state legislatures.

There is a low ground and a high ground element to this departure by the Framers of the proposed Constitution from the equal state/unanimity voting requirements of the Articles. The low ground is very practical: Why repeat the Articles mode of ratification when you know Rhode Island is not going to ratify? All this work in Philadelphia will have been in vain and Rhode Island will have prevented what eleven states might very well endorse.

The high ground raises the question of justice: The principle of the Revolution is that legitimate government is based in the consent of the governed and that the people have the right to choose the form of government under which they shall live. The Articles of Confederation, however, are based on the exclusive consent of the states and operates only with their approval. In order to fulfil the revolutionary principle that the consent of the governed is the only legitimate foundation of government, the Framers proposed a popular, rather than exclusively state, based ratification. But as a nod to reality, the voice of the whole people will be the collected through state based popular conventions.

To secure the approval of nine out of thirteen state ratifying conventions looks pretty easy on the surface. It sure looks more promising than securing the unanimous consent of thirteen state legislatures. But let's just change the math a little bit. All the participants know ahead of time that since Rhode Island declined to send delegates to Philadelphia, that the people of that state are unlikely to ratify. Thus, Madison and friends actually need nine out twelve and the Antifederalist opposition need four out of twelve to block adoption of the Constitution. And the word in the street, so to speak, is that North Carolina might not sign despite the various accommodations during the Convention debates. There was some whining in the state about an absence of a Bill of Rights and perhaps not enough had been done to protect "the peculiar institution" of slavery. With respect to the slavery issue, the delegates from South Carolina and Georgia had been particularly demanding at the Constitutional Convention. Would the concessions be sufficient to satisfy the folks back home to support ratification?

Even if we put South Carolina and Georgia to one side, we need to recognize that Madison and friends actually need nine out of eleven state ratifying conventions to approve the proposed Constitution. The Antifederalist opposition need three out of eleven. What looked easy at first—nine out of thirteen, rather than thirteen out of thirteen—turns out to be really nine out of eleven. And the Antifederalist task—five out of thirteen rather than one out of thirteen under the Articles—is not really quite as formidable when we get into the political realties of the day. We need to pay close attention to these realities—even a casual glance at Madison's correspondence during this period demonstrates his close attention to voting patterns and political endorsements—because the manner of adoption is a vital part of the Founding narrative.

But there is even more difficulty facing Madison and friends than these numbers suggest. Governor Randolph from Virginia, George Mason from Virginia, and Elbridge Gerry from Massachusetts refused to sign the Constitution on September 17, 1787. These delegates were in Philadelphia for the entire conversation, but peeled off near the end of the Convention. Now these are not political lightweights. You're not a lightweight if you're the introducer of the Virginia Plan, or the author of the Virginia Bill of Rights, or a signer of the Declaration of Independence. These three heavyweights, from two of the largest and most prominent states in the union, presented a potentially formidable obstacle to the ratification of the Constitution. There is a certain irony here. Randolph introduces the Virginia plan and then does not sign! Here is another irony. Scholars often describe the Convention debates as a battle between the small states and the large states. Yet, here we have three non-signers from two of the largest states!

Randolph declared the state conventions should be at liberty to offer amendments to the plan. These amendments should be bundled up and presented at a second Constitutional Convention for deliberation and decision. Can't you see Madison saying, "We're lucky if we get out of this one. Can you imagine us going to 13 state ratifying conventions, inviting further discussions, bundling up all those suggestions, coming together again, and calmly proposing a revised Committee on Detail and Committee on Style report? No, no, no. One miracle in Philadelphia is enough."

To make matters even worse for the friends of the Constitution—as if the numbers so far aren't a sufficiently formidable challenge—there is trouble brewing in Virginia. Patrick "give me liberty or give me death" Henry, apparently always ready for a screaming match, and Richard Henry Lee, who introduced the Declaration of Independence in the Second Continental Congress, declined their appointments to attend the Constitutional Convention in Philadelphia. Henry is reputed to have said: "I smell a rat." Lee, who was then the current leader of the Confederation Congress, took the more roundabout route: He had a conflict of interest, he remarked, in attending the Philadelphia Convention since the intent was to demolish the Articles under which he was President. These two heroes of the revolution were eager to do battle over the ratification of the Constitution.

But there was even more bad news. Governor George Clinton of New York was also eager for a fight. Add John Lansing and Robert Yates—Philadelphia Convention delegates from New York who left the Convention in early July to join Clinton in an assault on the new plan of government—to the mix and we have the makings of a very difficult campaign in New York for Madison and friends.

No wonder that the idea for The Federalist essays was the brain child of Hamilton and that the essays, written primarily by Hamilton and Madison, were addressed initially to the people of New York and then circulated up and down the Atlantic coast. It is also significant that Brutus, a New York Antifederalist, and The Federal Farmer, probably Richard Henry Lee of Virginia, wrote the best Antifederalist essays.

One last piece of bad news. When the Constitution was signed on the 17th of September, the question was, "Shall we take it to Congress?" On September the 17th, Washington and the rest of the Framers went upstairs in the State House and said, "We've signed." The Pennsylvania Assembly was nearing the end of its session, and what they wanted to do was to authorize the calling of a ratifying convention. But they had a problem: "Should the Congress of the United States approve this document before they issued a call for elections to a state ratifying convention?" Remember the mandate. "We the Congress give you the delegates the mandate to revise the Articles, and then come back with your recommendations." So they've got this quandary: do they obey a strict understanding of the rule of law and risk losing the opportunity to take the plan to the people in a timely fashion, or do they take it to the people as soon as possible, and risk being accused of violating the rule of law? The decided to go to Congress.

William Jackson, the recorder at the Constitutional Convention, gets on a horse, and takes the Constitution with him to New York where Congress was still in session. Madison and other Philadelphia delegates go because they are also members of the Confederation Congress. Here is the list: William Samuel Johnson, William Few, William Pierce, Nathaniel Gorham, Rufus King, Nicholas Gilman, John Langdon, William Blount, Pierce Butler, and James Madison. They are present between 20 September and 28 September 1787. And waiting for them there are Richard Henry Lee from Virginia, and Melancton Smith from New York. And Madison says, in effect, "We have a Constitution. We want the Congress to give a unanimous endorsement and send it out right away." And Lee says, "Before I put my signature on this, I want to read it. Very slowly and very carefully. Let's open it up and take a look at it, clause by clause." He wrote to George Mason on October 1, 1787: that the Madisonian forces made the issue, "this or nothing, and this urged with a most extreme intemperance."

Madison wanted the Congress to send the plan forward with a) an unanimous endorsement and b) a rule for the ratifying conventions: the delegates are not at liberty to alter and amend it. Just vote the Constitution up or down. Both sides come to the first of many compromises that define the ratification process. And compromise, while it often leaves both sides dissatisfied, is the obvious path that ultimately must be taken where there are a vast number and variety of interests and opinions that must be accommodated. Congress will neither endorse nor oppose the Constitution. Congress will just say, we send it forth, and let the people decide. That's the best that Madison could get, namely, get it out of Lee's hands. Madison persuades the Congress to release the Constitution, but he doesn't get the endorsement that he wants. Lee releases the Constitution, but he doesn't give an endorsement. That leaves him open to intensifying his opposition efforts in Virginia. He becomes the presumed author of The Federal Farmer Letters.

Jackson makes his way back to Pennsylvania with the Constitution on the very day that the Pennsylvania Assembly is supposed to adjourn. Well, the Pennsylvania politics at that time was divided by those who favored the Constitution, about 46, and those who disliked the Constitution, about 23.

Scholars who are suspicious of the legitimacy of the consent provisions of the Founding like to point out that force took place in the Pennsylvania Assembly in order to secure the necessary votes in favor of calling a ratifying convention before the Assembly adjournment. The Pennsylvania Constitution provides for quorum requirement of two-thirds of the membership. In practice that means that 46 members must be present. Since a few of the Federalist members were indisposed, a handful of Antifederalists were needed to secure a quorum. Knowing this, they hid in churches and taverns only to be forcefully removed and seated in the Assembly to secure the quorum and the vote needed to authorize the calling of the state ratifying convention.

Let's end with some possible good news. Over the last two hundred years, it is clear that the best kind of strategy in an American electoral campaign begins with the notion of declaring. One needs to declare victory as early and as often as one can, win big early and often, declare yourself the front-runner and ride on the bandwagon, declare that the opposition is incoherent and irresponsible, and even declare victory before you have victory. It's important to note that in each situation, except Rhode Island, at least one Signer of the Constitution from that state showed up at the ratifying convention. That person became a critical expositor of what went on in Philadelphia, so that if there are doubts or questions about what the Framers meant or what they did, there was at least one person who signed the document there to declare the meaning of the Constitution.

One of the favorite campaign pieces from the pro-Constitutional side was the publication in Boston of the 1788 "Federal Calendar." On the front of the calendar is a "Federal Chariot," and in the chariot are George Washington and Benjamin Franklin. Talk about name recognition and endorsement. And then there are these thirteen horses (states) pulling the chariot on the ratification road. This became a collector's item as well as enabling Americans to follow the progress toward ratification.

The conceptual component of the Fall chronology is this: the Madisonians wanted to win big, win early, and gain momentum, thus making it difficult for subsequent ratifying conventions to vote against adoption of the Constitution. And that's precisely what they accomplish. There is a real fast start in this Federalist-Antifederalist 5-0 sweep. The only objections that occur are in Pennsylvania and Connecticut. Going into the Pennsylvania ratifying convention it's 46 to 23, coming out it is 46 to 23. In Connecticut, going in is 128 to 40 and coming out it is 128 to 40. No one changed his mind. So the objectors went in objecting and nothing happened to change their mind. The 23 members of the Pennsylvania Minority expressed their views in the Pennsylvania Minority Report because the majority refused to include the objections in the official journal. The 40 in Connecticut didn't file a minority report. So by the time we get around to the New Year in January 1788, the Madisonians have five states already ratifying the Constitution. They only need four more states and the Antifederalists need five. The initial bad news had been overcome; it looked like a shoe-in for the Federalists.

The first state to ratify was Delaware. The Delaware legislature began its new session in October 1787 and by early November had called for elections for the state ratifying convention to be held on November 9 and 10. Ten members were to be elected from each of the three counties for a total of 30 delegates, the same number of representatives in the lower house of the Delaware legislature. And what we have called the Madison forces were out there in the electoral districts making sure that the pro-constitutionalist were selected as delegates. No Antifederalists ran for election. Most importantly, Delaware voters selected Bedford and Bassett to the ratifying convention in Dover. Now Bedford and Bassett didn’t play major roles at the Philadelphia Convention; they were always over-shadowed by two other Delaware delegates, namely George Read and John Dickinson. But it turns out that, here, as elsewhere, some Framers whose role in the Constitutional Convention was limited, actually shined in the ratifying conventions.

Unfortunately, there is no record of the proceedings or significant correspondence that might illuminate what took place. It is clear, however, that Bedford and Bassett needed to do very little explaining because the thirty people who were elected were all Federalists, and all were in favor of adopting the Constitution before they even entered the ratifying convention. These thirty people showed up in Dover on December the 4th, and these delegates representing the 60,000 people of Delaware had a momentous decision to make. Shall we or shall we not ratify this Constitution? Three days later, they ratified. There’s not much conversation. They’re all in agreement and they also behaved themselves. Not one deviated from what the voters understood when they were elected—I vote for you and you will vote for ratification. So Delaware, although the second state to convene, was the first to ratify. Now it might strike you as a little odd, given the conventional wisdom, that Delaware, the smallest state in the union, had no objection to ratifying the convention. There are all kinds of self interested, even conspiratorial theories that have circulated over the years to explain away this oddity including that Delaware ratified first in order to be favorably considered for federal grant.

Pennsylvania politics between 1776 and 1787 was divided roughly two to one between those who favored the Constitution and those who disliked the Constitution. This breakdown, however, was not manifested in either the election or the voting of the eight-member delegation to the Philadelphia Convention. All eight resided in Philadelphia and only Ben Franklin and Jarred Ingersoll demonstrated any reservations that the proposed Constitution might deviate from traditional teachings on federalism and republicanism. The division was present in the very sixty-nine member unicameral Pennsylvania legislature that called for the ratifying convention. So it is no surprise that going into the Pennsylvania ratifying convention, there was a 46-23 divide among the elected delegates.

The indoors and out of doors debate was dominated by James Wilson who had set the tone, not only for the Pennsylvania debate but for the whole country, with his State House Speech on October 6, 1787. Wilson responded to the Objections recently published by fellow Philadelphia delegate George Mason who declined to sign the Constitution. There is no doubt that this speech played a major part in the ratification of the Constitution. Professor George Graham has marvelled at Wilson’s dramatic rhetorical brilliance and has gone so far as to call the speech a "kind of pre-emptive strike." On the other hand, Jackson Turner Main, following the path introduced by Libby, points to the intractable differences between the cosmopolitan Federalists and the agrarian Antifederalists.

The ratifying convention met between November 21 and December 12 and, again, Wilson dominated the conversation. According to Wilson, the sole delegate to the Philadelphia Convention who ran for election to the state ratifying convention, there was no need for a Bill of Rights because under the proposed Constitution everything that is not delegated is reserved. Central to this "counter attack" was his contrasting the Preamble of the Constitution to the Bill of Rights attached to state constitutions.

After three weeks of non-debate during which no one changed his mind the Constitution passed by a vote of 46-23. The 23 in the minority—the Pennsylvania Minority—requested that their objections be placed on the record. But the pro-constitution Federalists said, "Absolutely not."

So the minority bought newspaper space and sent their objections out all over the nation. And so that becomes the Pennsylvania Minority Report, the report of these 23 elected delegates who had been refused by the dominant party to have their objections stated. This Report, in turn, was widely circulated up and down the country and while it did nothing to help the cause in Pennsylvania or the fall campaign, it did help in the winter and summer of 1788. Simultaneously, Pennsylvanian Samuel Bryan wrote the first of eighteen Centinel essays criticizing the tendency of the proposed Constitution toward consolidated government. The Centinel essays were also influential in the out of doors pamphlet wars. The Antifederalists lost the battle in Pennsylvania, but they were preparing for the war that lay ahead.

On October 29, 1787, the New Jersey legislature unanimously called for a state ratifying convention. There were thirteen counties in New Jersey and each chose three delegates to attend the ratifying convention. Elections were held between November 27 and December 1 and only Federalist delegates were elected. The little information about what took place has been compiled from local newspaper sources. They met on December 11 at Francis Witt’s Tavern and ratified the Constitution on December 20. One question seems to call for an explanation. Why did New Jersey, the state that gave us the New Jersey plan at the Constitutional Convention in the summer of 1787 and whose delegates fought with the Madison forces in Philadelphia, ratify so quickly and easily? Richard McCormick and Jackson Turner Main have a ready made economic answer: "It had a very large debt and had been obliged to levy heavy taxes on land. Were the Constitution adopted, the burden of much of this debt would be assumed by the central government." But there is also a political answer: potential Antifederalist objections had been accommodated in the very Constitution itself as a result of the debates in Philadelphia during the summer of 1787.

In October 1787, the Constitution was published in a Savannah newspaper and the Georgia Assembly called for the election of delegates to the ratifying Convention to take place in early December. It is unclear from the record whether eleven counties each elected three delegates, but only 29—all pro-constitutional—participated. What is known is that on January 2, 1788, 26 delegates from 10 counties voted to ratify the Constitution. There was, not unsurprisingly, virtually no opposition to the Constitution in Georgia. What is surprising is that other than the reproduction of Wilson’s State House Speech and Centinel I, there was very little reporting of the robust pamphlet exchanges taking place elsewhere. Very little is known of the in-house discussion other than that the delegates gathered on December 25, 1787, got down to business on December 28, ended their deliberations on December 31, and signed on January 2, 1788. Presumably, this ratifying convention did what all the other ratifying conventions did, namely, go through the Constitution paragraph by paragraph. A piece written by Joseph Habersham for a Savannah newspaper says that the "Constitution was read over Paragraph by Paragraph." But there is no official record available of what took place.

But, and this will become a recurring question given what took place at the Constitutional Convention in Philadelphia during the summer of 1787, why did Georgia ratify so quickly and overwhelmingly? George Washington and Samuel Bryan, author of the Centinel Antifederalist essays, at least agreed on one thing: the overriding critical nature of "the Indian Question."

The Connecticut Assembly, on October 19, 1787, called for town meetings to take place on November 12 for the purpose of electing state ratifying delegates. The vote in favor of ratification in Connecticut on January 9, 1788 was 128-40. To some scholars—Christopher Collier and Jackson Turner Main come to mind—this overwhelming support in favor of the adoption of the Constitution is a great surprise and suggests that the Antifederalists didn’t have "a fair chance." After all, in February 1787, Connecticut was the only state in the Confederation Congress to vote against endorsing the call for a Grand Convention in Philadelphia. Perhaps, Collier suggests, this rapid turnaround is due to deceit, propaganda, and suppression of information. There is a good possibility, he concludes, that the majority of Connecticut voters were Antifederalists and that they were hoodwinked to adopt a government as restrictive as they had endured under British rule. Similarly, Main remarks that "the prejudice of the newspapers which greatly injured the Antifederalists."

But one should not underestimate the extent to which the Connecticut delegates to the Philadelphia Convention had been genuinely accommodated. They are the authors of the Connecticut Compromise which they consider to be actually a Connecticut Principle. And if they can't persuade the delegates meeting in New Haven to go along with the Connecticut Compromise, and thus the Constitution itself, they aren't very good at all. In fact, Sherman, Ellsworth and Johnson are right there in the Connecticut ratifying convention defending the Constitution just as they have been defending it in the out-of-doors pamphlet war.

Despite overwhelming success in doors, the Madisonians were well aware of the difficulties that lay ahead. You've got Massachusetts, New Hampshire, Virginia, New York, still to go and you know that North Carolina and Rhode Island aren't going to sign. And the Antifederalists were effective in the out-of-door pamphlet war. Agrippa from Massachusetts published eleven Letters "to the people," and five Essays "to the Massachusetts Convention by February 5. Similarly, Brutus from New York published eleven of his sixteen Essays, Cato from New York published all of his seven Essays, Centinel from Pennsylvania published fourteen of his eighteen Letters, and Federal Farmer from Virginia published all of his eighteen Letters between October 1787 and the start of the Massachusetts ratifying convention. The Antifederalists had lost the fall in-door debate but they were mounting a formidable out-of-doors campaign that would spill over into the subsequent in house debates. I think that it is more than coincidental that it's right around January when the 36 opinion pieces written by Publius between October and December are bundled up and put in book form and called The Federalist.

In other words, the difficult journey still lies ahead because 1) in-doors, six states are in doubt and 2) out-of-doors, there is flood of Antifederalist essays that were starting to have their impact on the electorate and on the election of delegates. The early optimism of The Federalist that maybe we don't need to do much more than write twenty essays defending the Constitution from Antifederalist criticism had faded by early 1788. In Federalist 37, Madison says, "We really need to have a more copious investigation of all of this." And it's at that time that Madison invites readers to take a look at the miracle that occurred in Philadelphia during the 1787 Constitutional Convention. Madison realized that ratification had entered a new and crucial phase.

The Massachusetts Ratifying Convention met in Boston from January 9, 1788 to February 5, 1788 to discuss "the adoption of the federal Constitution." 370 delegates had been elected on October 25, 1787, and when the final vote was taken on February 3, 355 registered their vote. One of the leading authorities on the Massachusetts Convention, John J. Fox, deems the entire experience to be undemocratic: "If the people of the commonwealth had been allowed to vote directly, they would have determined against ratification; so would a majority of delegates if they had been asked to cast their votes in the early days of the convention." He sees the Federalists as "cunning." Similarly, Jackson Turner Main notes that "The Federalists employed unethical means."

In attendance from the Philadelphia Convention were Caleb Strong, Rufus King, and Nathaniel Gorham. Fisher Ames, James Bowdoin, Francis Dana, and Theophilus Parsons in joined them defending and urging the ratification of the Constitution. The fourth Philadelphia Convention delegate, Elbridge Gerry—who declined to sign the Constitution on 17 September 1787—was not in attendance. Within the first week of the Convention, however, "a motion was made and passed, that the Hon. Elbridge Gerry be requested to take a seat in the Convention, to answer any questions of fact, from time to time, that the Convention may ask, respecting the passing of the Constitution." Gerry agreed to the invitation the very next day. But Gerry never makes it to the floor of the convention and after January 19, he disappears completely from view. Absent Gerry, people with less prestige and experience led the opposition.

Over the first two weeks, the delegates discussed Article I, section 2 and 4. On Monday, January 21, the start of the third week, they turned their attention to Article 1, Section 8, namely, the powers of Congress clause and concluded on Saturday, January 26 with a discussion of Section 9. During the first four days of the fourth week—Monday, January 28 to Thursday, January 31—the delegates covered the remainder of the Constitution although there is no record of any discussion of Article IV! Some of the most interesting discussion takes place over the last week. There was an attempt by previously quiet Samuel Adams and John Hancock (he didn't attend until January 30 because of gout and had not announced his stance on the Constitution) to accommodate the opposition by suggesting that amendment proposals be annexed to the ratification.

No one was really sure where John Hancock stood. I put him down as entering with a no vote. Hancock, although his signature is large on the Declaration of Independence, was viewed with suspicion by both sides. Either way, with that close an anticipated vote, something had to give. If it were 300 to 55, nobody has to budge. And, fortunately, Hancock was absent for the first three weeks of the conversation because of gout.

The low road explanation is that a bunch of Federalists went up to John Hancock and said something like this, "John, you know that George Washington is going to be President. The question is, who's going to be Vice President? John Adams is a possibility. But how about John Hancock? Does that name sound good? We like that ticket: Washington-Hancock." And the story goes that Hancock said, "What's in it for you?" The deal was that in exchange for the Vice-Presidency, Hancock wouldn't run an opponent against the Federalists in the next governor election. That's the low road explanation. Rufus King's correspondence with Madison gives some credence to this low road explanation: "Hancock's character is not free from caprice." Madison, in turn wrote to Washington: "the decision of Massachusetts either way will involve the result in this State."

The high road explanation is that responsible leaders from both parties, including Adams and Hancock, convened and said, "Look, we've been at this now for nearly a month. We're not making any progress whatsoever. The country is in crisis and if Massachusetts doesn't sign, then we're down the tubes. Is there some way we can come on a common ground on this?" And the common ground was that Massachusetts would ratify now with an expectation that in the First Congress amendments would be proposed to alter the Constitution. That is called the Massachusetts Compromise. And enough people bought into it because Hancock bought into it, that it swayed enough people over to say yes. So the high ground is the sense of crisis, the sense of duty, the sense of Hamilton's remark in Federalist 85 that we are probably better off signing now and working within the system, and that sense that Massachusetts has a responsibility to step up and take the lead.

But in the name of what authority can a ratification convention propose amendments? And what is the difference between proposing recommendation amendments and conditional amendments? Proponents of the Constitution urged the former and hoped that the Massachusetts Compromise—ratify now, amend later—proposed by Hancock and supported by Adams and Ames would become the model for the remainder of the ratification campaign across the country. There is some disagreement about what the likely vote in favor and against was gong into the convention, but it was at least even and may have been tilted toward the Antifederalists. What is clear is that the Massachusetts Compromise secured the victory for the proponents of the Constitution because roughly ten delegates changed their mind to secure ratification by a 187-168 vote. Rev. Isaac Bachus, Nathaniel Barrell, William Symmes Jr. and Charles Turner, the leader of the Antifederalists, were four of those delegates. Orin Grant Libby identifies Barrell of York County as a delegate who defied the instructions of his constituents, and Jackson Turner Main identifies fourteen defectors from the Antifederalist cause.

It would be remiss not to note that after the vote was taken, no fewer than eight of the delegates who voted to reject the Constitution—including vociferous opponents Samuel Nason, Benjamin Randall, John Taylor, and William Widgery of the independent Maine movement—promised to work with their constituents to support the Constitution. And Gerry? "Crest-fallen but acquiesces."

This is first time that the newspapers showed the five pillars supporting, and then you have the Massachusetts pillar going up. They were now six federal pillars rising as the structure holding up the Constitution. So this is primitive campaigning, but at the same time, it shows "consent of the governed" at work. It shows the origin of party politics, of precincts, of campaigning, of debating, of campaign literature, newspapers involved.

We turn to winter in New Hampshire, and many a campaign has fallen on hard times in New Hampshire in February, and as New Hampshire goes, so some pundits have stated, so goes the rest of the nation. Well, they have these two ratifying conventions taking place in the northeast. The New Hampshire convention met on February 13. To the surprise of the pro-Constitution forces, it was discovered that a majority of the delegates were actually opposed to ratification! Of the 108 delegates in attendance, fewer than 50 were in favor of adoption. According to Jackson Turner Main, "only thirty favored ratification." And the going was so tough that the Madisonian forces proposed a strategy that they implemented on February 22. And the strategy in New Hampshire was, why don't we adjourn in order to avoid what was beginning to look like the first ratification defeat? Why don't we postpone and come back another day? That's the low ground. The high ground was why don't you folks who are going to vote against ratification, and who were elected, perhaps even instructed by your constituents to oppose ratification, before we knew that five states would ratify before we even met, why don't you go back to your district and make sure that your constituency feels the same way about rejecting the Constitution?

Philadelphia Constitutional Convention delegate John Langdon moved for a postponement. It passed 56-51 on February 24, the site was moved to Concord, and the next ratifying convention was scheduled to meet in June. Well, whether they were stupid, or they were persuaded to take the high ground, the Antifederalist forces agreed to postpone the conversation. The question is this: who would benefit from the postponement in New Hampshire?

Would springtime add momentum to the emerging Antifederalist challenge fueled in large part by the out-of-doors pamphlet literature and the impressive showings in New Hampshire and Massachusetts? Or were their days in the snow of New England merely a "one-off" success in terms of electoral politics?

Given the concerns expressed by the delegates from Maryland and South Carolina at the Philadelphia Convention, one might anticipate that there would be quite a confrontation in Maryland and South Carolina. But the delegates from these two states adopted the Constitution very easily: 63 to 11, and 149 to 73 respectively. And, more importantly, these "exit votes" were virtually the same as the "entrance votes" going in to the ratifying conventions. Moreover, there wasn't much of a debate despite the official declarations that the proposed Constitution had been "fully considered." The problem is that we will never know why Maryland and South Carolina didn't put up much of an opposition. The official records are very sparse. We can only speculate as to why the Antifederalists failed to mount a credible challenge at this stage of ratification. Jackson Turner Main puts it down to a biased press and the location of the state ratifying conventions.

Of considerable interest—and this has not been effectively addressed—is the question: why didn't the Antifederalists put up much of a fight in Maryland, the last state to ratify the Articles of Confederation and the home of Luther Martin and John Mercer who left the Philadelphia Convention early in order to mount a formidable challenge to ratification. James McHenry, one of three Maryland delegates to sign the Constitution on September 17, 1787, informed his Federalist allies across the country that he was concerned about the ratification struggle because Martin and Mercer had been elected to the ratifying convention. And ratifying convention delegates William Paca and Samuel Clark—who had expressed concern about the absence of a Bill of Rights in the proposed Constitution—were powerful politicians.

A leading commentator on the Maryland ratifying convention—Gregory Stiverson—argues that less than a quarter of the electorate voted, that there were some suspicious electoral recordings, Paca cut a deal with the Federalists, and Luther Martin had a sore throat. That is why the Antifederalists were ineffective in Maryland, namely, some sort of undemocratic political activity took place by the aristocratic Federalists.

South Carolina met on Monday, May 19 and, according to the official recorder, "continued by divers adjournments to Friday, the 23rd of May." Thomas Pinckney, the President of the convention, declared the Constitution ratified in South Carolina after the delegates had "maturely considered the Constitution." Now Pinckney did go on to assert the need to recognize a Bill of Rights. An historian of the South Carolina state ratifying convention, Jerome Nadelhaft, suggests that there was inappropriate electoral behavior by Federalists in South Carolina. According to Nadelhaft, the Federalists wined, dined, flattered, and cajoled the delegates. More importantly, he suggests that the whole process was possibly undemocratic. "The delegates opposed to the Constitution, however, probably represented a majority of the state population, and Antifederalism was stronger in the state at large than the ratification vote indicated."

The fate of the Constitution virtually hung in the balance during the summer of 1788. It is true that Madison only needed the affirmative vote of one of those three state ratifying conventions and the Antifederalists needed all three. But if you take a look at the predicted vote going in, then Madison has some very real problems. New Hampshire was 52-52, Virginia was 84-84, and New York was 19 in favor and 46 against by what today we might call "entrance polls." That seems to me to be an extremely close call.

I suggest that the agreement in Massachusetts laid the foundation for the resolution of this dramatic and vital summer stage. The "ratify now, amend later," compromise overcame the immediate crisis in Massachusetts, but more importantly the agreement provided the nation with a model for breaking subsequent crises. So, in New Hampshire, what broke the crisis? The Massachusetts Compromise. Five people changed their minds and twelve amendments were proposed. In Virginia, what broke the crisis? The Massachusetts Compromise. Five delegates changed their minds. Twenty amendments were proposed and also twenty items constituting a Bill of Rights.

By the end of May 1788, proponents of the Constitution had secured the approval of eight state ratifying conventions. Along the way, however, they made a critical tactical decision and an important, albeit non-binding, concession in order to deny the Antifederalists their first victory. In New Hampshire, facing sure defeat, the proponents secured an agreement at the ratifying convention to postpone a final decision, consult with the voters, hold a second election, and reconvene four months later. In Massachusetts, also in February, ten delegates abandoned their opposition to ratification in exchange for the proposition that "subsequent amendments" would be considered in the First Congress. This Massachusetts Compromise proposal—"ratify now, amend later"—moved an equally divided Convention to adopt the Constitution.

Securing the ninth state was not going to be an easy task. In fact, North Carolina and Rhode Island did not ratify the Constitution until November 1789 and May 1790 respectively. They did so only after the First Congress sent twelve amendment proposals to the states for ratification. Everything rested on the three remaining states: New Hampshire, Virginia, and New York. The best evidence suggests that going into the three ratifying conventions, the Federalist-Antifederalist delegate split was 52-52 in New Hampshire, 84-84 in Virginia, and 19-46 in New York. And all were scheduled to meet in June: Virginia on the 2nd, New York on the 17th, and New Hampshire on the 18th.

In preparation for the June New Hampshire ratifying convention, the Federalist leaders were far more active in their campaigning than in February. Even then, it turned out that the vote was virtually even going into the convention. It turns out, furthermore, that five delegates adopted the Massachusetts Compromise in New Hampshire after three days of debate. Thus the Constitution was officially ratified on June 21, 1788 by a vote of 57-47. According to Jere Daniell, only calculated and manipulative political maneuvering by Sullivan and Langdon carried the day.

Governor Edmund Randolph presented the proposed Constitution to the Virginia Assembly in mid-October 1787 and the legislative branch provided for the election of delegates to a state ratifying convention. Virginia delegates—two delegates were selected from each of the 84 counties—debated the merits of the Constitution from June 2 through June 25, 1788 unaware of the speedy New Hampshire ratification. Five delegates changed their mind and accepted the "ratify now, amend later" proposition on June 25. The Recorder, David Robertson, except when he was ill, provided a full account of the proceedings.

Among those delegates who defended the Constitution at the Virginia Ratifying Convention were James Madison, "father of the Constitution;" John Marshall, future Chief Justice of the Supreme Court; and Governor Randolph who nearly a year earlier introduced the Virginia Plan and was one of two Virginia delegates to the Constitutional Convention who refused to sign on September 17, 1787. Opposing adoption of the Constitution were such heavyweights as George Mason, author of the Virginia Bill of Rights and the other non-signer in Philadelphia; Patrick Henry, renowned for his inflammatory, dominating, and passionate speeches; William Grayson, delegate to the Confederation Congress, and James Monroe, future President of the United States and author of the Monroe Doctrine. Summing up the calibre of the delegates, John Marshall said later: "if I were called upon to say who of all men I have known had the greatest power to convince, I should perhaps say Mr. Madison; while Mr. Henry had without doubt the greatest power to persuade."

The delegates agreed to discuss the Constitution in a "systematic manner." But the agreement to proceed "clause by clause" was broken early because Henry, starting with the Preamble and Article I, insisted on talking about the "big picture" rather than particular clauses. Delegate Nicholas summarized the early deliberations in this way: "Although we have sat eight days, so little has been done, that we have hardly begun to discuss the question regularly. The rule of the house to proceed clause by clause has been violated." Henry ignored the requests to address the particular clauses in an orderly manner. On June 15, however, the delegates began a more regular coverage of the Constitution, and engage in a discussion of the powers of Congress in Article I, Section 8. They are particularly concerned about the militia clause and the "sweepings clause" officially known as the necessary and proper clause or the "implied powers" of Congress.

The delegates discussed Article III, the judiciary article, on June 19, 20, 21, and 23. The Convention Recorder, not for the first or last time, notes that Madison said a lot of things "but spoke too low to be understood." Of considerable interest are Marshall's extensive commentary on the jurisdiction of the federal judiciary and Henry's personal exchange with George Nicholas over the latter's comment that Henry has "objected to the whole; and that no part, if he had his way, would be agreed to." The President of the ratifying convention "hoped gentlemen would not be personal, that they would proceed to investigate the subject calmly, and in a peaceable manner." On the 23rd and 24th, the delegates discussed Article IV. The issue of ratification then became the focus of attention. Should "previous amendments" be secured before ratification or should ratification occur with the promise to introduce "subsequent amendments?"

The delegates voted 80-88 to reject twenty items in a Bill of rights and twenty Amendment proposals as a condition for ratification. The delegates then voted 89-79 to ratify the Constitution with a recommendation that "subsequent amendments" be sent to the First Congress for their consideration. The obvious question is who were the Antifederalists who changed their mind? According to Jackson Turner Main, "some delegates from Kentucky and West Virginia were open to persuasion; arguments of local interest were important in influencing them. The rest probably came from among the following: William Roland, David Patterson, George Parker, and Paul Carrington. W.O. Callis, Cole Digges, Miles King, Burwell Bassett, Willis Riddick, and Solomon Shepherd."

New York, in many ways, was at the center of the ratification controversy. Robert Yates and John Lansing left the Constitutional Convention in Philadelphia in early July to launch an attack on the proposed plan. Alexander Hamilton, in turn, launched The Federalist. In October, the New York Journal published the Antifederalist Cato and Brutus essays and The Federal Farmer essays were published in November. According to John Kaminski, "no where else were the people as well informed about the Constitution as in New York." The newspaper and pamphlet exchanges were extensive during fall 1787. In February 1788, the New York House and Senate narrowly agreed to the calling of a ratifying convention the elections for which took place in late April. The results were made available in late May: 19 Federalists and 46 Antifederalists were going to the ratifying convention. (This is the breakdown offered by Jackson Turner Main.)

Starting June 17, the delegates proceeded to go paragraph by paragraph through the Constitution during the first week of the Convention. Early in the second week—June 24—the delegates received news that New Hampshire, the critical ninth state, had ratified. But the debate continued. Then news that Virginia had ratified reached New York at the end of June. Although the delegates continued their discussion through July 7, there were various moves taking place to seek a compromise solution. Between July 7 and July 14 Antifederalist attempts to secure conditional amendments as well as secession guarantees were defeated. On July 26, New York, by a vote of 30-27—on the promise of recommended amendments—ratified the Constitution and proposed 25 items in a Bill of Rights and 31 amendments.

In New York, then, the shift is rather huge. From 19 in favor to 46 against, going in, it shifts to 30 in favor to 27 against. There are various possible reasons for this shift. First, is the Massachusetts Compromise and second a strong dose of political realism and statesmanlike prudence. The New York delegates knew that New Hampshire, number nine, and Virginia, number ten, had ratified the Constitution. So Melancton Smith, who was in charge of the Antifederalist opposition, said to the Federalist majority, "I'll tell you what we'll do. We'll favor the Constitution, but we expect you to follow through with your word to do everything you can to accommodate our objections in the First Congress." Five of the Antifederalists said, "I'm not going with that. I'm going home." So they left and went home. But most followed Smith's lead. Third, there was the threat that if New York failed to ratify, then the southern part of the state would secede.

In New York, as in Virginia and New Hampshire and Massachusetts, the overwhelming majority of Antifederalists turned out in the end to be decent. For all the bluster of Patrick Henry, when they lost in Virginia by that close vote, someone is reputed to have asked Henry, "Well Mr. Henry, what do we do now?" Henry says, "Go home and sleep, and turn up at the next election." He would obey the outcome and then work within the system. Similarly, given the information that Virginia and New Hampshire had ratified, Melancton Smith, the leader of the Antifederalist opposition in New York, said, "Better to work within the system than outside the system." He joined fellow delegates Nathaniel Lawrence and Samuel Jones in voting in favor of the Constitution AND tried to work for change within the system. This is important stuff.

Historians tell us that the importance of the 1800 election is that it's the first peaceful exchange of power from one party to another. Yes, that is extremely important. Here is another thing that's important. What other country prior to the United States is informed that its government doesn't work, sits for four months in convention, comes back for an entire year and debates and debates, and not a drop of blood was spilled? A lot of sweat and tears, but no blood. The legacy here from the Federalist-Antifederalist campaign is fight full and free and fair and then be magnanimous in victory and accepting in defeat. The Federalists promised to introduce amendments. But there's no conditions being made. The Antifederalists decided to become part of the American order.

Congressional and Presidential elections took place in November 1788, and the First Congress met in March 1789. During the first session of the First Congress, among other things, Madison urged that the Congress endorse the incorporation of a bill of rights into the Constitution. When Madison argues in the First Congress for a bill of rights, he says, "We owe it to these people. We didn't make it conditional. But we did make an honorable promise. We did agree to consider this issue in order to quell the fears of those who would otherwise support the Constitution. It is an important part of the democratic process to seek unity if possible. So I'm bringing it to you."

Madison proposed changes that would constitute a bill of rights, but that would not challenge the integrity of the Constitution. He wanted to open up the document and go to Article 1, Section 9, where the rights of individuals are listed currently, like habeas corpus, the bill of attainder, and no titles of nobility… And then add these: rights of conscience, freedom of press etc.… Roger Sherman said, "No, we're not going to open up the document and put in a bill of rights. We want to keep the work of the Framers pristine. If we are going to have a bill of rights, we'll attach it at the end, so that we all know the work of the Framers is this original document, and that we, the members of First Congress altered it, here." And thus the bill of rights became amendments. But what happened to these twenty other amendment proposals that were floating around from New York and Virginia? Madison just turned his back on those because those were unfriendly.

Learning that Congress endorsed a version of Madison's Bill of Rights proposal, North Carolina held a second ratifying convention. This time, on November 21, 1789, the delegates ratified the Constitution. And then there is Rhode Island. Between February 1788 and January 1790, the Assembly refused eleven times to call a ratifying convention. And at the end of the second session of the First Congress, the Senate sent Rhode Island a message which, in effect, said: "Join or die." And Rhode Island finally held a convention, having rejected earlier attempts to hold a ratifying convention, and they joined the union. The delegates ratified the Constitution by a vote of 34 to 32 on May 29, 1790. They also had the nerve to propose that the First Congress recommend the adoption of a bill of rights as well as amendments to the Philadelphia Constitution.