Should This Constitution Be Ratified?
IN PHILADELPHIA DURING THE summer of 1787, George Washington presided over a conclave that fiercely and sometimes frantically debated the new constitution that slowly emerged from James Madison’s Virginia plan. As the delegates edged toward agreement, Madison began to think there was only one way to describe the outcome of their hundreds of hours of often abrasive argument: a miracle. At the center of this unlikely outcome was a large fact that Madison also noted in his voluminous notes of the proceedings—that no one signed the Constitution with more enthusiasm than General Washington.1
After a farewell dinner with the delegates at the Rising Sun Tavern, Washington returned to Robert Morris’s house and wrote a letter to the Marquis de Lafayette about the success of their experiment. His motive was both personal and political. He wanted to get the news of the Constitution and its promise of American stability to their Revolutionary War ally as quickly as possible. At the same time, he was hoping the young man he sometimes called his “adopted son” could use their reconciliation of liberty and power to help him deal with political unrest in France, which showed signs of veering into violence. After describing the Constitution and its hoped-for good effects, he told Lafayette: “I do not believe that providence has done so much for nothing.”2
Although James Madison publicly praised the Constitution that emerged from the Philadelphia convention, privately, he was a disappointed man. Above all, he had wanted to give Congress the power to veto state legislation. Instead, he had to settle for a vaguely worded assertion that the Constitution was the “supreme law” of the nation. States were barred only from specific tasks, such as coining money.
Madison was even more unhappy with the compromise that gave each state two senators. He had wanted the House of Representatives to elect senators and give them the power to veto both state and federal legislation. Madison succeeded in giving the president enough veto power and authority to make him the guardian of federal unity. But he remained troubled by doubts that the Constitution would be adequate for the hopes of unifying federal power that he and George Washington had shared at Mount Vernon.
Madison’s doubts might have become demoralizing, if he had seen Thomas Jefferson’s reaction when the Constitution reached him in distant France. In the three years that had passed since Jefferson left America, he and Madison had remained in touch with a steady stream of letters. But it was hardly a normal correspondence. At least two months elapsed between mailing a letter and its delivery, and it often took another two months for the reply to reach the original sender. Events in both countries frequently intervened, prompting sharply different reactions from the two friends. It soon became apparent that they had begun to disagree about the kind of government the nation needed.
A prime example was Shays’ Rebellion. Influenced by ex-General Washington and the appalling weakness of Congress in the face of this upheaval, Madison called the Shaysites “a diseased part of the body politic,” and suspected that British influence may have been involved. Even after the rebels had been crushed, Madison reported to Jefferson that many of them “remained insolent,” and he worried that the new governor of Massachusetts, John Hancock, was “an idolater of popularity” who might be seduced into “dishonorable compliances” to their demands, which included a redistribution of property.3
Jefferson’s reaction to the Shaysites was almost totally opposite. He saw nothing wrong with “a little rebellion now and then” in a republic. It was a medicine “necessary for the sound health of government.” These were ironic opinions from a former governor who twice tried to resign when his state was confronted with armed men determined to kill or capture him and his supporters. Jefferson was even more tolerant in his comments to other correspondents, such as Colonel William Stephens Smith, John Adams’s son-in-law. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”4
When Madison’s letter reached France, Jefferson made no attempt to reply to his younger friend’s tough-minded view of the Shaysites. The envoy’s experience in France undoubtedly had something to do with this silence. He was dismayed by the extreme poverty and powerlessness of the French peasantry compared to the largely untaxed wealth and authority of the king and his fellow aristocrats. Jefferson called it “a government of wolves over sheep.”5
Madison did not rush a copy of the new constitution to Jefferson. Instead, as the convention drew to a close, he sent him an outline of the document. Meanwhile, the envoy received a copy from John Adams, who was America’s minister to Britain. His Massachusetts friend, Elbridge Gerry, had sent it to him, after refusing to sign the document. Jefferson was not happy with what he read. “How do you like our new Constitution?” he asked Adams. “I must confess there are things in it which stagger all my dispositions to subscribe to what such an assembly has proposed.”
Jefferson had expected only three or four new enlargements to be added to “the good, old, and venerable fabrick” of the Articles of Confederation.” He added an even nastier line about the office Washington and Madison valued most. “Their president seems a bad edition of a Polish king.”6
In 1783–84, Congressman Jefferson had writhed for six months in the grip of the feckless legislature that the “venerable” Articles of Confederation had created. But his fear of power was so intense, he preferred this ordeal to a government designed to reach decisions and enforce them with the help of this new office, the presidency. Jefferson told Colonel William Stephens Smith he thought the new charter was an overreaction to Shays’ rebellion. The Constitutional Convention had “sent up a kite [a predatory bird] to keep the hen yard in order.”
The metaphor is revealing. Apparently, Jefferson regarded the people in the yard (the nation) as amiable as clucking hens. Shays’ Rebellion was anything but a chorus of innocent fowls. Jefferson also blamed the British for exaggerating American instability in their newspapers. London had repeated this slander for so long, the envoy was convinced that even the Americans had come to believe it—and had constructed a much too powerful response to the problem.
In 1786, Jefferson had visited John Adams in London. His friend had taken him to the royal palace and introduced him to George III. The king had been more than cordial to Adams when he presented himself as the American ambassador. But His Majesty pointedly turned his back on the drafter of the Declaration of Independence, which was filled with insults to his royal person. The thin-skinned Jefferson was deeply offended. A year later he was telling people that the English would have to be “kicked into common good manners.”7
Not until October 24, 1787, five weeks after the Philadelphia convention adjourned, did Madison send Jefferson a copy of the Constitution. It was accompanied by an extraordinary seventeen-page letter. In this virtual treatise, Madison simultaneously confessed his disappointment with the new charter’s shortcomings and defended its value as a practical replacement for the unworkable Articles of Confederation. The delay suggests Madison feared Jefferson would not agree with the outcome of the Philadelphia convention. In particular, the younger man was eager to refute the widely held belief—which Jefferson subscribed to - that only small nations could or would support a republic. Larger countries naturally gravitated to rule by kings or emperors.
In this long letter, Jefferson became the first man to read Madison’s breakthrough argument that a large republic would be less likely to degenerate into tyranny. Why? A large republic contained so many varied groups, each pursuing their own interests, they would be unlikely to blend into a majority that would engage in “unjust pursuits,” such as violating property rights or individual liberties. This was especially true of a republic divided into large states, most of them geographically distant from each other.
Events also played a part in Madison’s delay. The campaign to win ratification for the Constitution had begun almost the day the convention adjourned. Madison had hurried to New York to take his seat in the old Congress, where he worked hard to persuade the members to pass the document on to the state legislatures without any negative comments. This was not an easy task. From September 17 to September 28, a heated debate about what to do with the new charter raged virtually nonstop. Virginians such as Richard Henry Lee, one of the earliest supporters of the Revolution, voiced severe criticisms. Soon there was an alarming number of congressmen who wanted to reject the Constitution on the spot. They had authorized the convention only to revise the Articles of Confederation. Instead, the Philadelphia conclave had produced an entirely new government. This was disobedience, and deserved to be punished.
Madison led the fight for a compromise, repeatedly telling people how General Washington had signed the new Constitution with great “cordiality.” With both sides weighing each word, the compromise was hammered out. Congress sent the Constitution to the states by a unanimous vote, with neither criticism nor praise. Madison immediately informed General Washington, who replied with evident pleasure—and political sophistication: “This apparent unanimity will have its effect.”
The effect was slow to appear. Madison soon discovered considerable opposition outside Congress. Essays written by New Yorkers under pseudonyms such as Cato began appearing in the city’s papers, deploring the Constitution as an assault on the nation’s peace and prosperity, and a threat to everyone’s civil liberties. New York’s Governor George Clinton remained hostile to the change in government. He liked the way the Articles of Confederation had allowed him to become a virtual dictator of the so-called “Empire State.”
Thomas Jefferson did not even mention the durability of a large republic in his reply to Madison’s long letter. Instead, the envoy told the Congressman what he liked and did not like about the new constitution. He liked the way it sidetracked the state legislatures. He also liked Congress’s power to levy taxes and the organization of the government into three branches. He especially liked the compromise between the large and small states, which gave every state two senators and based membership in the House of Representatives on a state’s population.8
Then the envoy told Madison what “I do not like.” First and most troubling was the omission of a bill of rights, which would guarantee freedom of religion, habeas corpus, trial by juries, freedom of the press and protection against standing armies. “The people are entitled to a bill of rights against every government on earth,” Jefferson insisted.
At the Philadelphia convention, Madison had argued that he thought a bill of rights was superfluous. But he was not opposed to the idea in principle. He had already led an historic struggle in Virginia to pass Jefferson’s proposal to discard the Episcopal Church as the state’s established religion, and make religious freedom the prevailing policy.
The second feature Jefferson disliked was the abandonment of rotation in office—especially in the case of the president. He was sure that a “first magistrate” would always be reelected if he were permitted to succeed himself. This meant he would become president for life. “The power of removing him every fourth year by a vote of the people is a power that will not be exercised,” Jefferson predicted.9
Then came words that would echo through the rest of Jefferson’s life: “I own I am not a friend to a very energetic government. It is always oppressive…I think our governments will remain virtuous for many centuries, as long as they remain chiefly agricultural, and this will be as long as there are vacant lands in America. When they get piled upon one another in large cities, as in Europe, they will become as corrupt as in Europe.”10
There was nothing new about most of Jefferson’s ideas. They were standard Whig (the eighteenth century word for liberal) doctrine. Central to them was the conviction that power was a threat to liberty. Washington and Madison, on the other hand, had moved beyond this fear to the belief that power could be used positively to control—and even to enlarge—individual liberty. This was one of the central ideas in a series of essays that Madison began writing, in partnership with Alexander Hamilton and John Jay, defending the Constitution against its critics. They kept their identities secret by writing under the pen name Publius, in honor of one of the founders of the Roman Republic, Publius Valerius Publicola.
The trio produced three or four essays a week, which were published in three New York newspapers. Madison wrote twenty-six and Hamilton fifty-one; Jay contributed only six before an attack of rheumatism laid him low. Early in 1788, the essays were collected into a book, The Federalist, that became a powerful weapon in the ongoing debate about whether the Constitution should become the law of the land.
George Washington was an enthusiastic admirer of The Federalist. He called it one of the most important discussions of government ever written. “When the transient circumstances and fugitive performances which have attended the crisis will have disappeared, this work will have merited the notice of posterity,” he told Alexander Hamilton. For a man whose education had ended in the fourth grade, this comment revealed remarkably good judgment. The Federalist remains an admired document to this day.11
Washington made it clear that this praise was not mere flattery. “I have read every performance which has been printed on one side or another of the great question,” he told his ex-aide. None could have more impact on an unbiased mind “as the production of your triumvirate.” The ex-general asked Madison to send him a “neatly bound” copy for his library.12
Washington’s remark about reading every pamphlet or news story written about the Constitution is a glimpse of how intensely he was involved in the fight for ratification. At one point, his secretary at Mount Vernon, his former military aide-de-camp, Colonel David Humphreys, called him “the focus of political intelligence for the New World.” The ex-general repeatedly urged the friends of the Constitution to take up their pens to answer the critics.
Speaking as one Virginian to another, Madison remarked that their home state needed these essays as much as New York did. Some of the leaders of the Revolution in the Old Dominion had become strident opponents of the new Constitution—most notably, Patrick Henry. The orator had been joined by another prominent political leader, George Mason, who had published an angry essay condemning the document. Madison suggested that Washington might put the Federalist essays “into the hands of some of your confidential correspondents in Richmond who would have them reprinted there.”13
Washington sent the essays to Dr. David Stuart, who represented Fairfax County in the state legislature. Stuart had married the widow of Martha Washington’s son, John Parke Custis, and was a trusted friend. Washington urged him to find a Richmond printer who would give the essays “a place in his paper.” He was not at liberty to disclose the names of the writers, and he was even more emphatic about keeping his role in forwarding the essays a total secret. This powerful political medicine was soon appearing weekly in the Virginia Independent Chronicle.
Washington had decided his influence would be strongest if he maintained a detached image. But he remained at the white hot center of the contest. Madison all but deluged him with letters from New York, reporting on the ratification contest in various states, and its prospects of success. By early 1788, Washington knew that Pennsylvania, Delaware, New Jersey, Georgia, and Connecticut had approved the new government by comfortable margins. But Massachusetts was a large and ominous worry.
Elbridge Gerry, a close friend of John Adams, had been attacking the charter since he returned from the Constitutional Convention. He had aroused serious doubts in Samuel Adams and Governor John Hancock, whose friendship went back to the heady days of 1776. Neither man had any great affection for George Washington, who had outshone the wildly ambitious Hancock during the Revolution, and worsted Adams in contests over control of the Continental Army. Hancock had become governor by placating the Shaysites and their sympathizers with promises of tax relief. He reportedly controlled fifty votes in the Massachusetts ratifying convention.
The federalists, as the proponents of the Constitution began to call themselves, had learned from the earlier contests. In Pennsylvania, they had pushed for immediate ratification. Though they had won a majority, their haste left the anti-federalists infuriated, and the antis took to the newspapers, hurling nasty accusations and dark predictions that soon circulated around the nation. Taking a different tack in Massachusetts, the federalists let the antis talk for weeks and tried to be agreeable. Nor did they object when Samuel Adams and his followers asked if they could recommend amendments, especially a bill of rights.
An anxious Madison, in close touch with the debate, urged Washington to send a Bay State friend “an explicit communication of your good wishes” for the Constitution. The general wrote a strong letter to former Major General Benjamin Lincoln, the man who had crushed Shays’ Rebellion. By the time it arrived, Massachusetts had voted to ratify. But Washington’s warm words may have helped prevent second thoughts and angry counterattacks a la Pennsylvania from the Adams-Hancock faction.
The delegates that Virginia’s voters sent to the ratifying convention had a worrisome tilt toward the constitution’s chief opponents, Patrick Henry and George Mason. Now it was Washington’s turn to give some crucial advice to James Madison. The Congressman was reluctant to appear in public as the document’s defender. Perhaps his early doubts about its defects resurfaced when he pictured himself in that role. More probably, Madison knew his limitations as a speaker and hesitated to take on Patrick Henry, an acknowledged champion in that department. Washington banished Madison’s hesitation with no-nonsense bluntness. “Explanations will be wanting” at the convention, and “none can give them with more precision and accuracy than yourself.”14
Early in March, Madison left New York and made Mount Vernon his first stop in Virginia. He and Washington spent a full day (March 19, 1788) discussing the political situation in their home state. They apparently agreed that the Massachusetts strategy of tolerating future amendments might work well in Virginia.
At home in Montpelier, Madison learned that in Maryland and South Carolina, anti-federalists had come up with a new strategy. They planned to persuade their ratifying conventions to adjourn without a vote. Madison rushed a letter to one of Maryland’s leaders, warning him that such a move could have fatal consequences. He did not know the man’s address, and he sent the letter to Washington, leaving it open, inviting him to read it before forwarding it. The general sent it along with a letter of his own, warning that the idea was “tantamount to rejection of the Constitution.” At the convention, the Marylander circulated Washington’s letter, and ratification won by a comfortable majority.
The Virginia convention was a challenge that could not be solved so easily. George Washington had made a point of sending Patrick Henry a copy of the Constitution as soon as he returned to Mount Vernon. Washington said he wished it “had been made more perfect,” but “sincerely believed” it was the best agreement that could be obtained at this time. Perhaps the chief reason to accept it, he added, was his sense that “the political concerns of this country are, in a manner, suspended by a thread.”
These sincere and serious words had made no impression on the headstrong orator. He became even more determined to destroy a document that he considered a threat to Virginia’s welfare—and his power in the nation’s largest state. It was no accident that Henry and George Clinton of New York had similar attitudes. New York was not yet a large state from a population point of view, but its empty northern acres left no doubt that it would eventually join this exclusive club.15
By this time, Madison realized he and Washington had another opponent in this looming clash: Thomas Jefferson. The ex-governor’s friendly tone in his letter to his former councillor was very different from the note of anger and even contempt that he struck in letters to other men. He told one correspondent that he doubted if Madison could “bear the weight” of contending with Patrick Henry and his eloquent allies in the Virginia ratifying convention. He informed Alexander Donald, a tobacco broker and old friend, that he wished “with all my soul” nine states would endorse the Constitution and the remaining four would reject it until it had a bill of rights.
Such a tactic would have led inevitably to a call for a second convention. Madison—and Washington—knew this was tantamount to a death sentence for the government they had worked so hard and long to create. The anti-federalists would go all out to pack this second convention with their adherents.
Jefferson had written equally critical letters to friends in Maryland as their convention approached, knowing his name had influence there. A federalist delegate saw one of these letters and wrote to Madison, asking: “Can this possibly be Jefferson?” But Washington’s name had trumped the man from Monticello there. The Maryland ratification vote had been an anti-federalist rout.16
The Virginia convention was a terrific ordeal for Madison. The conclave lasted twenty-three long, hot June days and Patrick Henry orated almost continuously. Several of his speeches lasted an entire day. His assault was as shrewd as it was savage. His goal was to arouse fear of the Constitution in every listener. He portrayed it as a conspiracy of the rich against the poor. He warned people who owed money to British merchants that federal marshals would drag them before federal judges and bankrupt them. He told slaveholders the new federal government would have the power to free their slaves by taxing them out of existence. Above all, the new government would eventually destroy everyone’s liberty. Henry dwelt on this threat so graphically, one listener later recalled feeling his wrists to make sure fetters were not already pressing his flesh.17
George Mason seconded Henry’s arguments with his own less eloquent brand of righteousness. He could testify that he had sat in the Philadelphia convention and listened to the arguments, and came away unconvinced. He joined Henry in preaching fear and suspicion of the North because of their hostility to slavery. He agreed with Henry that it was folly to entrust Virginia’s safety and prosperity to such self-righteous neighbors.
Madison tried to deploy a strategy of his own. He called on the delegates to debate the Constitution clause by clause. No one could match the arguments he planned to muster with this approach. But Henry and Mason paid no attention to this proposal. Day after day, they assaulted the document from all points of the rhetorical compass, forcing Madison to deal with their slanders and exaggeration. The strain brought on an attack of “bilious fever”—an ailment that had troubled Madison since his college days, when he had often studied to the limits of his physical strength. He missed three days of debate, and when he returned, his voice was so weak, oratory was out of the question.
The gap was temporarily filled by Virginia’s current governor, Edmund Randolph, probably the only speaker in the chamber who could match Henry’s bravura style. Although Randolph had refused to sign the constitution in Philadelphia, he now declared himself in favor of full ratification with no demands for amendments or a second convention. Without Virginia, there would be no union. Raising his right arm, Randolph said he would “assent to lopping off this limb before I assent to the dissolution of the union.” Henry, the self-styled people’s spokesman, had no ready reply to these vivid words.
Randolph also performed another crucial service. As governor, he had received a letter from George Clinton, proposing that Virginia form an alliance with New York to force a second convention. Instead of reporting it to the ratifying convention, Randolph sent this explosive missive to the Virginia legislature, where it lay untouched and unread, while all its members were absent, listening to the arguments at the ratifying convention.
Madison soon told Washington the good news about Randolph. He kept his silent partner in touch with the drama in terse letters every three or four days, even when his illness left him “extremely feeble.” Washington’s hopes and fears rose and fell with every message. The thought that his home state might sabotage the Constitution was almost enough to give him an attack of bilious fever. But his nerves had been conditioned to deal with suspense by eight years of wartime uncertainty.18
In the last week of the convention, Madison regained his strength and style. Speaking from a bevy of notes he held in his hat, he answered Henry’s attacks with steady, irrefutable facts. Another tactic did even more damage to Henry’s case. Madison reminded the convention that General Washington had severely criticized the Articles of Confederation in the circular letter he had sent to the governors of the states shortly before he resigned his commission in 1783.
Henry had an answer that momentarily flustered Madison. The orator wondered why Madison was disagreeing with his good friend, Thomas Jefferson, who had advised numerous men, including Henry, to “reject this government till it be amended” at a second convention. Madison regained his equilibrium and met Henry with a semi-denial that had some—but not much—basis in fact. He declared Mr. Jefferson’s generally positive view of the Constitution was being misrepresented by these words.
Finally came Madison’s climactic appeal to the relative handful of delegates who were still making up their minds. He urged them to help the United States excite the astonishment and admiration of the world by “peacefully, freely and satisfactorily” establishing a government capable of ruling a large and complex continental nation. Was there a better way to fulfill the promise of the American Revolution?19
Henry replied in his florid style, and he was joined by younger anti-federalists, notably Jefferson’s new disciple, James Monroe. Future Supreme Court Justice John Marshall and several other speakers answered them. When Henry launched into a disquisition about slavery, George Wythe, the distinguished professor of law at the College of William and Mary, and one of Thomas Jefferson’s early mentors, interrupted him and proposed a vote.
First came a tally on Henry’s call for amendments. Back and forth the counties seesawed, with the anti-federalists seeming to pull ahead when nine out of twelve votes went their way. But the Tidewater region (which included Washington’s Fairfax County) ended the suspense with six straight votes for ratification. The final total was 89-79. A shift of six votes would have condemned the Constitution to oblivion.
Madison’s first thought as he contemplated this hard-won victory was George Washington. He joined other federalists in rushing the news to Mount Vernon. Meanwhile, a disappointed James Monroe was telling his mentor, Thomas Jefferson: “Be assured his [Washington’s] influence carried this government.”20
As word of the ratification spread along the Potomac, dozens of Washington’s neighbors piled into boats and swarmed to Mount Vernon to congratulate him. They invited him to a celebration the next day at nearby Alexandria. A delighted Washington was soon telling Madison and other veterans of the struggle in Philadelphia how much pleasure it gave him to be a member of the first “public company” to drink a toast to the new federal government.
On June 3, Madison stopped at Mount Vernon on his way to New York to resume his seat in Congress. Washington saw at a glance how exhausted he was. For the first and only time, he showed his paternal feelings for this gifted young man. He urged Madison to “take a little respite from business” and relax at Mount Vernon for a few days. He advised a routine of “moderate exercise” and books only occasionally—books he should read for pleasure, “with the mind unbent.” Madison must have been touched by this concern. He spent the next four days at Mount Vernon.
A similar drama was on stage in Poughkeepsie, New York, where that state’s delegates had convened with the prospects for ratification looking dire. Anti-federalists outnumbered the federalists 46-19, and the antis gleefully flourished Governor Clinton’s letter to Governor Randolph, confident that it would produce an alliance that would demand a second convention and doom the Constitution. Day after day, with Alexander Hamilton as the eloquent floor leader, the federalists argued for the Philadelphia document, clause by clause—and got nowhere. “Our arguments confound but do not convince,” a discouraged Hamilton said.
On July 2, the Clintonites were flabbergasted to learn that Virginia had ratified without so much as a mention of a second convention. Frantically scrambling for a new tactic, Clinton turned to the by now tired demand for a bill of rights. Hamilton asked, Why this sudden passion? The New York State Constitution did not have one, and Governor Clinton never stopped praising it. The rattled antis began splitting into moderate and intransigent factions.
Armed with the arguments from The Federalist, Hamilton began annihilating anti-speaker after anti-speaker. For a clincher, he issued a threat that pushed the Clintonites to the edge of panic. If the convention failed to ratify, New York City would secede and form a separate state, and ratify the compact without them. The city had sent an overwhelmingly federalist delegation to Poughkeepsie. “Where will the Empire State be without its crown jewel?” Hamilton mockingly asked.
Desperate now, the Clintonites proposed that New York’s ratification should be “conditional.” They would reserve the right to secede from the union unless all the amendments they proposed were added to the Constitution. The governor and his friends had concocted no less than fifty-five of these changes and additions. Hamilton had anticipated this maneuver, and he had ready a letter from James Madison, who had returned to New York and resumed his seat in the soon-to-expire Congress.
Madison’s letter, which Hamilton proceeded to read aloud, could not have been more explicit: the Constitution “requires an adoption in toto and for ever … any condition whatever must vitiate ratification.” New York’s anti-federalists collapsed. Seven Clintonites abstained and the moderates joined the Hamiltonians to ratify 30-27. Seldom has a legislative body changed its collective mind so completely in less than a month. Madison promptly rushed the good news to Mount Vernon.
It was now only a matter of time before two holdout states, Rhode Island and North Carolina, would have second thoughts and join the union. At Mount Vernon, the prospect of a united nation prompted more thoughts about the narrow margin between victory and defeat. “We may, with a kind of grateful and pious exultation, trace the finger of Providence through these dark and misterious events,” Washington wrote to a friend.21
In spite of Patrick Henry, George Clinton and other obstructionists, including Thomas Jefferson, the Constitution created by George Washington and James Madison had become the cornerstone of a resurgent American republic.