OSCILLATING between idolizing the Founders and demonizing them, Americans have a hard time defining their relationship to their constitutional beginnings. The dark side was powerfully sketched by Charles Beard early in the century.1 His image of the Founding as the American Thermidor still haunts. Beard’s Founders did not come to fulfill the Revolution, but to lead an antipopular putsch for property rights. This Beardian image has been darkened further by increasing reflection upon the Founders’ racist and sexist presuppositions—to the point where Justice Thurgood Marshall could publicly deny that the Founding provided an adequate moral basis for modern American government.2 These moral doubts fuel the powerful antioriginalism of much modern constitutional law: surely the prejudiced opinions of white men, many of them slaveholders, cannot be allowed to serve as the fixed points of our community’s search for a more perfect Union?
Such questions have darkened, but never obliterated, the older heroic image. The Founders may have had feet of clay, but don’t they stand as the most remarkable statesmen in American history? The miracle in Philadelphia remains just that—there can be no denying that the Framers divined the future course of American history and came down with governing formulae that deserve our continuing respect. If anything, this mythic image has reemerged with renewed force in recent years—to the point where Justice Clarence Thomas could embrace the words and wisdom of the Framers with an enthusiasm unprecedented in modern constitutional law.
I reject both images. I aim to push the Fathers off the pedestal without dropping them into the dustbin of history. There is no denying Thurgood Marshall’s point. The Founders shared the prejudices of their age. If we are to grasp their enduring importance, we cannot look upon them as demigods with final answers. Later generations have reversed many Founding judgments about the place of equality, liberty, and federalism in our higher law—without these latter-day contributions, the Constitution of 1787 would have long since proved inadequate. If we are to grasp 1787’s enduring importance, we must approach it with different expectations. We must search for the deeper ways that the Founding language, institutions, and ideals have shaped the very process through which later generations have revised the substantive commitments of the eighteenth century. Even at this level of higher lawmaking process, Founding models have not survived untouched by time. Nevertheless, we will never grasp the genius of modern American government without assessing their continuing importance.
Unfortunately, this interpretive effort has also been distorted by the demonization/glorification cycle. Either the Founding contribution to the law of higher lawmaking is ignored in free-form (if often perceptive) discussions of the “living constitution.”3 Or the Federalists are treated as superheroes whose timeless commands have rigorously controlled all constitutional transformations of the next two centuries. To break this cycle, we must take the Founders off their pedestal and learn to look upon them as mere mortals facing a serious problem—and one that would recur at later points in American history. Quite simply, the Federalists confronted a preexisting system for higher lawmaking that made demands upon them that they could never realistically hope to fulfill. But Madison & Co. refused to accept defeat for their constitutional enterprise. They also refused to launch an all-out assault against the system.
They carved out a third way. They created a new higher lawmaking system by using preexisting institutions as key building blocks. By gaining these institutions’ assent to their own reorganization, the Federalists vastly enhanced their claim to speak for the People.
They were not the first to take this path. As we shall see, they were elaborating a great precedent from English constitutional history, established by the Convention of 1688 in consolidating the principles of the Glorious Revolution.
Nor were they the last. Reconstruction and the New Deal are best viewed as similar “convention-like” adaptations. But before this thesis can be rigorously formulated, let alone tested, we should follow the Federalists, step by step, as they pursued their third path to constitutional legitimacy.
Only six years before Philadelphia, all thirteen states had finally agreed upon Articles of Confederation, whose final provision reads:
13. And the Articles of this confederation shall be inviolably observed by every state, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the United States, and be afterwards confirmed by the legislatures of every state.
Article XIII’s emphasis on unanimity is hardly accidental, since it took a lot of work to get all of the states to agree to the terms of Confederation in the first place.4
And yet the Federalists were now refusing to play by the rules. After a summer of secret meetings, they went public with a bombshell. Article Seven blandly asserted that “[t]he Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” This declaration of independence created three sorts of legal problems.
Article Seven assaults the established revisionary process on four fronts. First, it invited secession, rejecting the Articles’ assertion that “the Union shall be perpetual” and authorizing a walkout of nine states. As we shall see, this threat of secession was crucial in pushing states like New York and Virginia to give the Constitution their reluctant endorsement. The first Congress after ratification began as a secessionist body, meeting without North Carolina or Rhode Island—and the latter state’s consent was only procured after the secessionist Congress began threatening it with economic sanctions.
Second, the Founding text ignored the power over amendments granted by the Articles to the Continental Congress. This omission was especially remarkable since a number of states refused to send delegates to Philadelphia until the Constitutional Convention received express Congressional approval.
The Federalists were no less contemptuous of existing state authorities. In the teeth of the Articles’ express command, their proposed Constitution cut the legislatures out of the ratifying process, leaving it up to special conventions meeting in each state.
Finally, all this was done in the face of the Articles’ express claim to specify the exclusive means for its revision.
Consider the assembly that was taking the law into its own hands. The Convention was itself a secessionist body. Rhode Island was the obvious holdout, refusing to send any delegates. New York and Delaware posed problems as well.
New York sent three delegates to the Convention, but two walked out as the centralizing bias of the Federalist majority became clear. Since New York required a majority of its delegates to bind the state, the vote of the only remaining representative, Alexander Hamilton, was legally insufficient. The Convention did not pretend otherwise. Its journal treated New York like Rhode Island on the final question of whether to approve the Constitution. Neither state is recorded as casting a ballot.5
Delaware’s legislature expressly barred its delegation from agreeing to any proposal that deprived it of the equal voting power it enjoyed under the Articles. Its delegates signed the Constitution in contempt of their commission.6
We are presented, then, with the spectacle of ten delegations urging nine states to bolt a solemn agreement ratified by all thirteen members of the Confederation. Even this understates the difficulty. In calling for the Convention, the Continental Congress had charged the delegates to meet “for the sole and express purpose of revising the Articles.”7 Did this limited grant authorize the delegates to rip up the Articles and propose an entirely new text?
This question was raised repeatedly. In the two key states of New York and Massachusetts, it was reinforced by delegate commissions that expressly incorporated Congress’ restrictive language.8 Delegates from other states came with a broader mandate, allowing them to make any constitutional proposal they thought appropriate.9 While key delegates may well have acted beyond their commission, this was not true of all.
But no delegation had any similar warrant for an end run around the amendment rules found in the Articles of Confederation. The precise language varied from state to state, but Virginia’s commissions were typical: its delegation could engage in “devising and discussing all such alterations and further provisions, as may be necessary to render the Federal Constitution adequate … reporting such an Act for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several states, will effectually provide for the same.”10
Such language expressly subordinated the Convention to existing institutions and procedures. So did the Continental Congress in stipulating that the Philadelphians’ proposals could become law only if “agreed to in Congress and confirmed by the states.”11 The delegates had absolutely no authority to set up a new higher lawmaking mechanism for the exercise of popular sovereignty. Indeed, some delegates to the Continental Congress refused appointments to Philadelphia because, as Richard Henry Lee explained, “Being a Member of Congress where the plan of Convention must be approved,” he would be required to “pass judgment at New York upon their opinion at Philadelphia.”12
The Federalists ran into more legal trouble in calling for ratifying conventions in the thirteen states. By virtue of its Supremacy Clause, their proposed Constitution amounted to a vast revision of each state’s constitution, and yet they were proceeding in willful contempt of each state’s existing revisionary mechanism.
The legal status of each ratifying convention depended upon its particular state constitution, but it will pay to distinguish between two broad types—those that contemplated the use of conventions; and those that did not.
Those that did included Massachusetts, New Hampshire, and Pennsylvania. In the first two, a special convention had initially proposed the state constitution, which was then approved by popular votes in town meeting. Pennsylvania’s 1776 constitution was enacted by its legislature, but it was widely recognized as the most radically democratic document of its time.13 It is therefore revealing how these three states dealt with the convention mechanism. In each case, the constitutional text refused to give the legislature, or anybody else, the unfettered right to call a convention. Such an extraordinary assembly could only meet after a specified number of years had passed—seven years in New Hampshire and Pennsylvania; fifteen in Massachusetts. New Hampshire was the sole state to make the summoning of a convention automatic; Massachusetts required two-thirds of the towns to agree; Pennsylvania required two-thirds of a specially elected body of Censors.14
These cumbersome processes reflected a deep concern with stability characteristic of early republican thought.15 Americans were painfully aware of the Tory claim that their infant republics would disintegrate amidst constant factional strife. The careful structuring of conventions expressed a commitment to stability coupled with an ultimate faith in popular sovereignty.
Unhappily for the Federalists, their 1787 call came at the wrong time in these three states. Pennsylvania’s Censors had rejected a convention in 1784 and their next meeting was set for 1791; New Hampshire, for 1791; Massachusetts, for 1795. Worse yet, the Federalists were calling for the wrong kind of convention. In all three states, it was the convention’s task to make constitutional proposals, not rubber-stamp those made by others. In the two New England states, these proposals were put up to the voters in town meeting. If the legislatures of these three heeded Philadelphia’s call for ratifying conventions, they would be acting in contempt of their own constitutions.
The legal situation in other states was more propitious in one sense, less in another. Most of these constitutions had been proposed by the legislature, and often enacted into law without any special form of consultation with the electorate. Rhode Island and Connecticut continued to operate under Royal Charters which had always given them great political autonomy—the legislatures simply striking the clauses from the text that offered fealty to the English Crown.16
These texts gave greater legal warrant to legislatures that chose to go along with the Philadelphia call. Since the legislatures were the source of the existing state constitutions, weren’t they legally free to propose a new method for revision? Yes, but the Federalists’ end run around the legislature, and their demand for popular ratifying conventions, seemed more of a frontal assault on existing constitutional processes. Especially when the Philadelphians altogether lacked the legal authority from these legislatures to make such an end run; especially when they were calling on popular conventions to rubber-stamp proposals that they, without any direct authorization by the voters, saw fit to make.
To sum up, here is the young John Quincy Adams’s shocked reaction to the news from Philadelphia:
But to crown the whole the 7th article, is an open and bare-faced violation of the most sacred engagements which can be formed by human beings. It violates the Confederation, the 13th article of which I wish you would turn to, for a complete demonstration of what I affirm; and it violates the Constitution of this State, which was the only crime of our Berkshire & Hampshire insurgents [in Shays’ Rebellion].
As a justification for this, it is said, that in times of great distress and imminent danger, the Constitution of any country whatever must give way; and that no agreements can be put in competition, with the existence, of a nation; but here, in order to apply this proposition, which is undoubtedly true, two points are to be established: the first, that we are now in this tremendous situation, where our very national existence, is at stake; the second that no better remedy can be found than that of a revolution.—The first it appears to me, no man in his Senses, can pretend to assert: our situation it is true is disagreeable; but it is confessedly growing better every day, and might very probably be prosperous in a few years without any alteration at all. but even if some alteration be necessary, where is the necessity of introducing a despotism, yes, a despotism; for if there shall be any limits to the power of the federal Congress, they will only be such as they themselves shall be pleased to establish.17
These remarks suggest the opening of a generation gap. For Washington and Madison, the Founding was the consolidation of a lifetime of revolutionary activity. For the young fogie Adams, it was a shocking outbreak of lawlessness. In the aftermath of Shays’ rebellion, many of Adams’s elders shared his anxieties. How, then, did the Federalists respond?
By preparing the ground for their break with legality through a fascinating set of exchanges with established institutions that began in 1785 and ended in 1791.
Call it the “bandwagon effect.” At each stage, the Federalists suffered grave legal difficulties in advancing their enterprise. At each stage, some important institutions refused to cooperate on legalistic grounds. Nonetheless, the Federalists gained enough acceptance by enough standing institutions to sustain their momentum. Winning these official confirmations made it plausible for them to embark on another illegal initiative, which—confirmed once again by more standing institutions—made it plausible for them to proceed to another illegal initiative. And so forth, until they had earned a deep sense of constitutional authority even though they had not played by the rules.
There is much that is puzzling about this unconventional process. Before speculating further, we need a firmer grounding in the facts. There were five phases to the Founders’ unconventional activities. During the first, the Federalists sought to establish that an anomalous body like the Convention was an appropriate response to the country’s problems. The construction of a credible constitutional signal was fundamental to the overall success of the enterprise: How did the Federalists manage the obvious dangers involved in their frontal challenge to established authority?
A successful answer only served to open up other questions. After constructing a credible signal, they faced the problem of legitimating their proposal. It was one thing to suggest a few amendments to the Articles, quite another to write an entirely new Constitution. How did they deal with the shocked response of existing institutions to this sweeping reorganization?
But the Convention did more than propose; it triggered a change in the rules for ratification. How did the Founders win support for this revolutionary step? Call this the triggering problem.
As the Federalists were trying to solve it, they proceeded to a fourth stage and embarked on the struggle for ratification on a state-by-state basis. This struggle only confirmed the importance of their triggering solution. Ratification would never have occurred without general acceptance of the new ratification rules.
Fifth and finally, the Federalists confronted dissenting states like Rhode Island and North Carolina, which continued to affirm the prior constitutional solution. How to induce them to renounce their legalistic opposition and confirm the legitimacy of the new regime? Call this the problem of constitutional consolidation.
The effort to amend the Articles began as soon as they were ratified. For a long time, however, the stage was dominated by actors who played by the rules.
The first legalistic campaign aimed at granting Congress the power to levy a five percent impost on foreign commerce. Proposed by Congress in 1781, the impost gained the consent of all states but Rhode Island two years later. Before Rhode Island could be induced to join, Virginia backed out, and Congress returned to the drawing boards.18 After some pulling and hauling, it proposed new initiatives. The most successful was another impost, which passed Congress in April of 1783.19 By 1786, only New York remained a holdout, and even it had formally accepted the initiative—though with so many conditions that Congress found it unacceptable.20 Trying to sustain the momentum, Congress proposed a new package of seven amendments in August of 1786.21
This meant that the Federalists were constantly encountering objections from supporters of a strengthened Union who denied the need to break the rules: Wouldn’t the Federalist bandwagon only derail the legally unproblematic initiatives then underway?22 Granted that New York was holding up the impost, why suppose that it would accept a lawless break into the unknown?23 Wasn’t it wiser to continue pressing for the impost, and use a success as a springboard for more sweeping reforms, like those Congress had sent to the states in 1786?24
Along with these questions of efficacy came deeper problems of legitimacy. Given the ongoing efforts by existing institutions to solve their problems, how did Madison & Co. earn sufficient authority to challenge the status quo?
The first step toward a convention had such humble origins that it did not immediately provoke widespread legalistic opposition. Only as the Federalists gained experience with the bandwagon effect did they begin to confront the deep philosophical problems involved in its legitimation.
Our story begins with the 1785 Mount Vernon Conference, where commissioners from Maryland and Virginia met at George Washington’s mansion. Though their commissions were limited to the regulation of the Potomac and Pocomoke rivers, they agreed to “sweeping, if sensible recommendations … [that] went considerably beyond the instructions that the respective legislatures had given to them.”25 Nonetheless, both legislatures approved the proposed interstate compact.
Madison, who had been behind the initiative,26 moved that the Virginia legislature submit the agreement to the Continental Congress in compliance with Article VI of the Articles, which required this whenever “two or more states” entered into “any treaty, confederation, or alliance.”27 I don’t know why, but the Virginia Assembly rejected his proposal. As to Maryland, its legislature cited the Articles’ grant of authority to “enter into a firm league of friendship with the other states respectively, for their mutual and general welfare,” but also failed to explain why it did not submit the compact to Congress for approval.28
The result may have provided Madison with a learning experience on three fronts. It suggested, first, that delegates to ad hoc assemblies might move beyond their commissions and get away with it; second, that this could happen even though the “whole proceeding was distinctly unconstitutional”;29 and, third, that unconventional activity might prove especially rewarding in a context, like Mount Vernon, that promised plain economic benefits to the states involved.
The Virginia Federalists made their next move on January 21, 1786, convincing the legislature to authorize seven commissioners (including Madison) to invite deputies from other states to attend a meeting at Annapolis “to consider and recommend a federal plan for regulating commerce.”30 Even at this early stage, there is evidence that Madison was aware of the bandwagon dynamic. He wrote to Monroe:
Will it not be best on the whole to suspend measures for a more thorough cure of our federal system, till the partial experiment shall have been made [to regulate commerce at Annapolis]. If the spirit of the Conventioners should be friendly to the Union, and their proceedings well conducted, their return into the Councils of their respective States will greatly facilitate any subsequent measures which may be set on foot by Congress, or by any of the States.31
Madison was already mastering a key insight into unconventional legitimation. Rather than aiming for a single grand victory, he was setting up a stepwise process—in which one partial initiative built on the next in a series of sequential ratifications:
The efforts of bringing about a correction thro’ the medium of Congress have miscarried. Let a Convention then be tried. If it succeeds in the first instance, it can be repeated as other defects force themselves on the public attention, and as the public mind becomes prepared for further remedies. The Assembly here [in Virginia] would refer nothing to Congress. They would have revolted equally against a plenipotentiary commission to their deputies for the Convention. The option therefore lay between doing what was done and doing nothing. Whether a right choice was made time only can prove. I am not in general an advocate for temporizing or partial remedies. But a rigor in this respect, if pushed too far may hazard everything.32
The bandwagon process had begun in earnest.
Despite its questionable legality,33 Virginia’s call proved surprisingly successful, leading nine states to appoint delegates to a convention at Annapolis in September 1786. At the same time, it provoked expressions of dissent from three states. South Carolina refused, on the ground that it had “an appearance of either revoking or infringing on those powers” the legislature granted to Congress when it approved the five percent impost.34 The Annapolis proposal led to an impasse in Connecticut, as legislators feared that it would undermine Congress and set a precedent for other illegal movements.35 Maryland’s rejection was more elaborate:
[T]he meeting proposed may be misunderstood or misrepresented in Europe, give umbrage to Congress, and disquiet the citizens of the United States, who may be thereby led erroneously to suspect, that the great council of this country wants either the will or wisdom to digest a proper uniform plan for the regulation of their commerce. The power must be given to Congress to effectuate any system which might be adopted by the proposed meeting of commissioners.36
Worse yet, the meeting “may produce other meetings, which may have consequences which cannot be foreseen. Innovations in Government, when not absolutely necessary, are dangerous, particularly to republics, generally too fond of novelties, and subject to change.”37
The Annapolis commissioners would convene in a state that had formally denounced them as dangerous revolutionaries. The early turnout of delegates was less impressive than expected.38 When only twelve delegates from five states arrived, the Federalists desperately sought to sustain institutional momentum. Before disbanding, they endorsed Hamilton’s call for another convention—this time in Philadelphia. According to the Commissioners’ Report, the new convention should not be limited to “commercial regulation,” but would have power to consider a broader range of “defects [which], upon a closer examination, may be found greater and more numerous.” This call raised an obvious question—who, after all, had given these commercial emissaries such expansive authority? The Report answered: “If in expressing this wish or in intimating any other sentiment, Your Commissioners should seem to exceed the strict bounds of their appointment, they entertain a full confidence, that a conduct, dictated by an anxiety for the welfare, of the United States, will not fail to receive an indulgent construction.”39
The upshot was a striking combination of hubris and humility. The commissioners had asserted the immense authority of calling for a convention, unknown to the established system, to propose amendments to the Articles. Having taken a revolutionary step, they covered their tracks to gain the cooperation of existing institutions.40 First, they specified that any constitutional proposals emerging from Philadelphia should be approved by Congress and all thirteen legislatures. This was precisely what didn’t happen—moreover, given their willingness to go beyond their mandate, how seriously could one take their assurance about the future convention? Nonetheless, the stipulation softened the challenge to existing authorities implicit in the call for a convention that, once in existence, might serve as a formidable rival.
Second, the commissioners did not take decisive action unilaterally. They called upon Congress and the thirteen states to issue calls to Philadelphia. Surely there was little harm in that? If existing authorities ignored the invitation, it would be quickly forgotten.
But if it struck a responsive chord, the Report’s hubristic aspect would reemerge. In particular, did its initiative require the assent of all thirteen states and Congress before the convention could appropriately assemble? If not, how much support would be enough? The commissioners were silent on these crucial operational questions. It was enough to precipitate the bandwagon effect: as more and more existing institutions recognized the need for a convention, would the dynamic of consent create its own kind of legitimation?
Some have attributed Hamilton’s call at Annapolis to the news of the Massachusetts uprising we know as Shays’ Rebellion.41 A comprehensive study of original sources gives no support to this claim. However, news of the Rebellion did rapidly overtake reports about Annapolis and profoundly affected its public reception.
But in a complicated way. Some accounts, relying on Beardian understandings, stress the class anxieties generated by Shays’ Rebellion amongst the revolutionary elite—fears that led them to embrace strong measures like a constitutional convention.42 This is only part of the story. Shays and the other rebels of rural New England were not only closing down courts and refusing to pay debts. They were engaging in more constructive forms of politics—meeting in illegal county conventions and making extraordinary demands for fundamental change.
These acts predictably led opponents to assault the farmers’ use of conventions. Pamphleteers, like An Other Citizen, distinguished sharply between the illegal conventions of the American Revolution and the current rebellious assemblies. When the colonists were fighting the British, they had no alternative but to break the law and meet in convention. But the situation had changed radically in 1780, when the people of Massachusetts solemnly approved a constitution. Since that time, no group of men could properly meet in convention and “dare, with impunity, to lay the foundations of a CIVIL WAR in the state, or to molest that Government in the execution of its Constitutional powers.”43 An address to Governor James Bowdoin of Massachusetts elaborated this argument:
In the same compact, the people solemnly agreed to support the Constitution for the space of fifteen years, and made ample provision for the revision of it at the end of that period, if it should then be thought necessary.—There is no officer, either high or low, within the commonwealth, who does not derive his whole authority from the people, and who is not amenable to a proper and adequate tribunal for his conduct.
… If the citizens of the State labour under grievances which can be redressed by the acts of the legislature, we conceive that their privileges in this case can never be enlarged, for the General Court are chosen annually by the people; and though in one year our complaints are not attended to, yet we can in the next election place men in power who will answer our reasonable expectations; and, we are constrained to say, that we are ignorant of the time when the representatives of the people in this state have not duly attended to the Instructions of their constituents. … Fellow citizens, we now entreat you, by the sacred compact which holds us in one society—by the blood of our brethren shed to obtain our freedom—by the tender regard we feel for our rising offspring, claiming freedom from our hands, as their inheritance by the grant of heaven—to use your endeavours that redress of grievances be fought for in a Constitutional and orderly way only.44
Given these emphatic principles, it was going to be tough for Shaysite opponents to embrace the Annapolis initiative. Why wasn’t the call for a convention in Philadelphia as illegitimate as the ones organized by the rebel farmers?45
The question soon reverberated in the Massachusetts legislature. Both Rufus King and Nathan Dane opposed the Annapolis proposal as unconstitutional. As King explained: “The Confederation was the act of the people. No part could be altered but by consent of Congress and confirmation of the several Legislatures. Congress therefore ought to make the examination first, because, if it was done by a convention, no Legislature could have a right to confirm it … Besides, if Congress should not agree upon a report of a convention, the most fatal consequences might follow.”46
King and Dane are important figures. A few months later, they will write the Congressional resolution calling upon the states to send delegates to Philadelphia. But during the fall of 1786, they were more impressed with the county conventions of the Shaysites. Rather than serving as a prod to the upper classes, Shays’ Rebellion served as an example of the ease with which illegality could spiral out of control.
Given these anxieties, it should be no surprise that New York and New England were slow to respond to Annapolis’ call to Philadelphia.47 But Federalists further south were successful in winning a number of favorable responses,48 maintaining momentum through the winter of 1786, until the bandwagon effect could be renewed by another round of official confirmation.
Congress received the Annapolis proceedings on September 20 and referred them to a special committee, which took no action for months. By early February, Madison and Hamilton had come to Congress to campaign for endorsement, but others continued to be impressed by the illegality of it all. Richard Henry Lee, a member of the special Congressional committee, surveyed the scene:
With difficulty the friends to the system adopted by the convention [at Annapolis] induced Congress to commit your report, altho’ all were … zealous to accomplish the objects proposed by the authors of the commercial convention. Indeed their conviction of the inadequacy of the present federal government render them particularly zealous to amend, and strengthen it. But different opinions prevail as to the mode; some think with the Annapolis meeting, others consider Congress not only the Constitutional but the most eligible body to originate and propose necessary amendments to the confederation, and others prefer State conventions for the express purpose, and a Congress of deputys, appointed by these conventions with plenipotentiary powers.49
Despite these hesitations, Congressional endorsement was imperative if Philadelphia were to become credible. Many states, especially in the North, were unprepared to send delegates to an unconstitutional convention unless Congress expressly endorsed it.
Within this context, the partisans of the convention were reinforced from a surprising direction: the same King and Dane who had opposed Philadelphia in Massachusetts now came to its defense as Congressional delegates. After some preliminary sparring in mid-February, the two Massachusetts delegates wrote the resolution that gained Congressional approval on February 21, calling the states to send delegates to Philadelphia “for the sole and express purpose of revising the Articles.”50 What accounted for the shift?
King answers in a letter to Elbridge Gerry: “For a number of reasons, although my sentiments are the same as to the legality of this measure, I think we ought not to oppose, but to coincide with this project. … Events are hurrying to a crisis; prudent and sagacious men should be ready to seize the most favourable circumstances to establish a more permanent and vigorous government.”51 Close observers had little difficulty explaining King’s conversion. By this point, Massachusetts was effectively crushing Shays’ Rebellion.52 Stephen Higginson, who had been appointed a Massachusetts delegate to the Annapolis Convention, drolly observed that King and Dane “will not now think there is so great a resemblance between our County Conventions … and that proposed to be held in Philadelphia in May, as they thought, nor will they now imagine that the same danger can result to the Union from the latter, as our experience has proved was justly apprehended from the former to this Commonwealth.”53
Despite the explicit acknowledgment of formal illegality by its draftsmen, the resolution sufficed to propel the institutional bandwagon forward. With Shays’ Rebellion under control, Northern states joined Southern laggards in responding affirmatively to the Congressional invitation to Philadelphia.
With one exception.
“Permit the legislature of this state to address you,” Governor John Collins of Rhode Island wrote to the President of the Continental Congress, in explanation of his state’s refusal to send delegates to Philadelphia:
[A]s a legislative body, we could not appoint delegates to do that which only the people at large are entitled to do. By a law of our state, the delegates in Congress are chosen by the suffrages of all the freemen therein, and are appointed to represent them in Congress; and for the legislative body to have appointed delegates to represent them in convention, when they cannot appoint delegates in Congress (unless upon their death or other incidental matter,) must be absurd; as that delegation in convention is for the express purpose of altering a constitution, which the people at large are only capable of appointing the members.54
Collins’s objection was by no means unique. Others, including John Jay, were deeply troubled by the fact that the Philadelphia Convention was a creature of state legislatures, and so could not claim a sufficiently direct connection to “the People.”55 After challenging the legitimacy of the Convention, Collins quoted the final Article of Confederation verbatim, emphasizing Rhode Island’s “diffiden[ce] of power, and apprehension of dissolving a compact which was framed by the wisdom of men who gloried in being instrumental in preserving the religious and civil rights of a multitude of people …; and fearing, when the compact should once be broken, we must all be lost in a common ruin.”56
And yet, for all its rhetorical force, this letter is a token of the Federalists’ success in solving their signaling problem. The first tip-off is its date: September 15, a time when the Convention’s proceedings are almost at end. With both Congress and twelve states on record in support of the Convention, Rhode Island has been reduced to mere letter writing. Indeed, the governor is writing an apology for something that generally requires no defense—the state’s refusal to cooperate in a transparently unconstitutional effort to disrupt the status quo.
I do not wish to exaggerate the Federalist accomplishment. While their bandwagon effect had made the Philadelphia Convention into a credible constitutional signal, they had many more obstacles to confront before their Constitution could gain recognition as the collective endeavor of We the People.
Nonetheless, it is not easy to create a plausible alternative to the existing higher lawmaking system, and it is important to reflect upon the Federalists’ distinctive methods. Consider the number of times they had gained official confirmation of their extraconstitutional activities. In the following summary, I have italicized the roles of legal bodies in the ongoing sequence and used SMALL CAPITALS for extralegal assemblies:
From the dispatch of commercial delegates by Virginia and Maryland to the MOUNT VERNON CONFERENCE to its confirmation by the two states and Virginia’s call for ANNAPOLIS.
To the confirmation by nine states of the ANNAPOLIS MEETING over the legalistic dissent of four others; to the CALL AT ANNAPOLIS FOR A CONVENTION AT PHILADELPHIA and its confirmation by some of the Southern states while the Northern ones remained in legalistic indecision.
To the Congressional recommendation of PHILADELPHIA and its confirmation by New York and New England over the legalistic dissent of Rhode Island.
To the PHILADELPHIA CONVENTION.
By the time the Convention met, there was a general expectation that it would make a constitutional proposal. But it was hardly obvious that it would propose the creation of an entirely new regime. No less shocking was the Founding effort to trigger an entirely new procedure for ratification. These two initiatives—proposing a new regime, triggering a new ratification procedure—are analytically distinct. But the Federalists often combined them in their effort to overcome resistance, and so I will consider them together.
Illegality was a leitmotif at the Convention from first to last. The theme was provoked during the first six weeks by a bitter debate between nationalists and decentralizers over the scope of the Convention’s proposal. The nationalists seized the agenda with their fifteen-point Virginia Plan, which contemplated a powerful national government with legislative, executive, and judicial institutions operating independently of the states.57 The decentralizers responded with the New Jersey Plan, which enhanced the powers of the existing Congress without challenging basic premises—especially the principle that gave each state equal voting power in the Continental Congress.
The decentralizers repeatedly wrapped themselves in the cloak of legality. Here is William Paterson introducing the New Jersey Plan:
The Convention he said was formed in pursuance of an Act of Congs. that this act was recited in several of the Commissions, particularly that of Massts. which he required to be read: That the amendment of the confederacy was the object of all the laws and commissions on the subject; that the articles of the confederation were therefore the proper basis of all the proceedings of the Convention. We ought to keep within its limits, or we should be charged by our constituents with usurpation. that the people of America were sharpsighted and not to be deceived. But the Commissions under which we acted were not only the measure of our power. they denoted also the sentiments of the States on the subject of our deliberation. The idea of a national Govt. as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. … We must follow the people; the people will not follow us.58
On Paterson’s widely shared view,59 it was only a moderate plan, like New Jersey’s, that qualified as a revision. Nationalist proposals championed by Madison, Wilson, and Hamilton were simply beyond the Convention’s authority: “If the confederacy was radically wrong, let us return to our States, and obtain larger powers, not assume them of ourselves.”60
Especially problematic was the nationalists’ desire to deprive the small states of equal voting power: “He reads the 5th art: of Confederation giving each State a vote—& the 13th declaring that no alteration shall be made without unanimous consent. This is the nature of all treaties. What is unanimously done, must be unanimously undone.”61 Throughout these bitter weeks, Paterson’s legalistic concerns were reinforced by his allies.62
With the exception of Madison,63 the nationalists were strikingly unconcerned with legal technicalities. Edmund Randolph, who had presented the Virginia Plan, responded to recurring legalisms by explaining that he “was not scrupulous on the point of power. When the salvation of the Republic was at stake, it would be treason to our trust, not to propose what we found necessary.”64 Such sentiments were sometimes buttressed by appeals to popular sovereignty, as with James Wilson’s: “We have powers to conclude nothing—we have power to propose anything—we expect the Approbation of Cong. we hope for that of the Legis. of the several States perhaps it will not be inconsistent with Revolution principles, to promise ourselves the Assent of the People provided a more regular establishment cannot be obtained &c &c.”65
This debate ended in July with the Great Compromise—in which the Convention (by a narrow margin) accepted much of the centralizing thrust of the Virginia Plan and mollified the decentralizers by giving an equal vote to all states in the Senate. Shortly thereafter, New Yorkers Robert Yates and John Lansing walked out, loudly denouncing the illegalities contemplated by the runaway Convention.66
But those who remained had not yet finished with the problem. Although they were moving in the direction of a revolutionary proposal, they had not squarely confronted Article XIII of the Confederation: Were they prepared, in the end, to accept a humble role and submit their recommendations to Congress and all thirteen state legislatures?
After some inconclusive sparring, the question came to the floor in late August: “Mr. Sherman doubted the propriety of authorizing less than all the States to execute the Constitution, considering the nature of the existing Confederation. Perhaps all the States may concur, and on that supposition it is needless to hold out a breach of faith.”67 Gouverneur Morris then moved to “leav[e] the states to pursue their own modes of ratification.” This immediately led Daniel Carroll of Maryland to open another hornet’s nest: “Mr. Carrol [sic] mentioned the mode of altering the Constitution of Maryland pointed out therein, and that no other mode could be pursued in that State.”68 Madison tried to reassure the delegates:
The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitution, and all officers were under oath to support it. The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bills of rights, that first principles might be resorted to.69
The Marylanders were not impressed, James McHenry noting “that the officers of Govt. in Maryland were under oath to support the mode of alteration prescribed by the Constitution.”70 King recalled that the constitution of Massachusetts, which did have an explicit procedure for calling conventions, “was made unalterable till the year 1790.”71
He reassured his fellows, however, that “this was no difficulty with him. The State must have contemplated a recurrence to first principles before they sent deputies to this Convention”72—a remarkable statement from a man who had repeatedly confessed the illegality of the entire enterprise. Previously, however, he had already made clear the grounds for his insistence on overriding state constitutions: “Mr. King thought that striking out ‘Conventions’ as the requisite mode was equivalent to giving up the business altogether. Conventions alone, which will avoid all the obstacles from the complicated formation of the Legislatures, will succeed, and if not positively required by the plan, its enemies will oppose that mode.”73
King’s predictions would be fulfilled during the struggle for ratification. There is no way that the Constitution would have succeeded without the Convention’s revolutionary breach with Article XIII. This was probably why the debate was so brief, with nobody other than Madison trying to answer the dissenters’ legalistic doubts. The Federalists had the votes, and that was that. The Convention majority then made it plain that it would not formally ask Congress for its approval, leaving unanswered Elbridge Gerry when he “dwelt on the impropriety of destroying the existing Confederation, without the unanimous Consent of the parties to it.”74
The die had been cast; but then there was a moment of hesitation. At one of the Convention’s final working meetings, Alexander Hamilton urged caution. Not otherwise noted for timidity, he drew the line at a frontal assault on the higher lawmaking system. He moved “that the foregoing plan of a Constitution be transmitted to the U.S. in Congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the Legislatures of the several States.” After strictly complying with the Articles, his motion went on to “recommend” that each state consider whether it might voluntarily change its ratification practices. Hamilton suggested that legislatures refrain from considering the Constitution itself and call a special constitutional convention. He was even more tentative in confronting the Articles’ insistence on unanimous approval by all thirteen states. This time, his motion merely contained a doubly conditional “recommendation” to the legislatures. It did not urge them to break with the unanimity rule but simply to authorize its state convention to make the break “if” the convention “should be of the opinion” that nine states were enough to bring the Constitution into life.75
Hamilton’s caution was undoubtedly based on the legalistic denunciations that Yates and Lansing were already publishing in New York; even at this late moment, his pleas were joined by dissenting legalists like Elbridge Gerry, who then refused to sign: “If nine out of thirteen can dissolve the compact, Six out of nine will be just as able to dissolve the new one hereafter.”76
As was typical, this last legalistic plea was countered not with a legalistic defense but with some cold truths from James Wilson:
He expressed in strong terms his disapprobation, particularly the suspending the plan of the Convention on the approbation of Congress. He declared it to be worse than folly to rely on the concurrence of the Rhode Island members of Congs. in the plan. Maryland had voted on this floor for requiring the unanimous assent of the 13 States to the proposed change in the federal System. N—York has not been represented for a long time past in the Convention. Many individual deputies from other States have spoken much against the plan. Under these circumstances Can it be safe to make the assent of Congress necessary. After spending four or five months in the laborious & arduous task of forming a Government for our Country, we are ourselves at the close throwing insuperable obstacles in the way of its success.77
Hamilton’s legalistic hesitations were swept aside by a vote of ten states to one.78 But Wilson’s vivid description of the prospective opposition made it clear how vulnerable the Convention’s proposals would be in the months ahead. Out of fifty-five delegates, only thirty-eight signed the final proposal. Luther Martin and John Francis Mercer of Maryland had recently followed Yates and Lansing of New York in a loud and public walkout. Would the reputation of George Washington and a few other famous names be enough to sustain the institutional bandwagon?
On the same day it approved the Constitution, the Convention also “RESOLVED that the preceding Constitution be laid before the United States in Congress assembled,” without conceding the right to veto or revise its final product.79
This unconventional move should now begin to seem familiar. But it was also very dangerous: once Congress seized hold of the Constitution, would it try to change the rules of the game once more? Once the Convention dissolved in Philadelphia, how could it respond to a Congressional counterassertion of authority?
Not idle questions, as events showed. When Congress took up the Constitution nine days later, Richard Henry Lee of Virginia led the critics. Lee had refused to serve at Philadelphia since it was improper for him to participate in a decision that he was going to review as a Congressman. Now he was confronted with a fait accompli:
Strangest doctrine he ever heard, that [in] referring a matter of report, that no alterations should be made. … The states and Congress, he thinks, had the idea that Congress was to amend if they thought proper. He wishes to give it a candid inquiry, and proposes such alterations as are necessary … To insist that it should go as it is without amendments is like presenting a hungry man 50 dishes and insisting he should eat all or none.80
Hastily returning to his seat in Congress,81 Madison conceded that Congress had the legal right to revise the Convention’s text.82 He sought to ward off intervention with one of the most remarkable arguments in constitutional history: “that as the Act of the Convention, when altered would instantly become the mere act of Congress, and must be proposed by them, and of course be addressed to the Legislatures, not conventions of the States, and require the ratification of thirteen instead of nine States, and as the unaltered act would go forth to the States directly from the Convention under the auspices of that body.”83 In other words, if Congress wanted to get anything done, it could not touch the Convention’s proposal—since only that proposal could be processed by the extraconstitutional triggering rule of nine out of thirteen! If Congress did not want to run into the stone wall of Article XIII, it could not convert the revolutionary proposal into a “mere” act of law!
It was all or nothing—the Convention’s revolutionary triggering decision was being invoked to ward off efforts to whittle down its revolutionary proposal. And yet, these anxieties about “mere” legality did not deter Madison from seeking a Congressional message to the states unambiguously approving the merits of the Constitution. Rather than substituting its legal warrant for the Convention’s revoltionary assertion, Madison wanted it to complement the Convention’s authority with its own, giving new momentum to the institutional bandwagon.
Contrast this with Lee’s resolution:
Resolved, That Congress after due attention to the Constitution under which this body exists and acts find that the said Constitution in the thirteenth article thereof limits the power of Congress to the amendment of the present Confederacy of thirteen states, but does not extend it to the creation of a new confederacy of nine states; and the late Convention having been constituted under the authority of twelve states in this Union it is deemed respectful to transmit, and it is accordingly ordered, that the plan of a new Federal Constitution laid before Congress by the said Convention be sent to the executive of every state in the Union to be laid before their respective legislatures.84
Madison’s response: “Can’t accede to it. … If this House can’t approve [the Constitution], it says the crisis is not yet arrived and implies disapp[robation].”85 At the end of the debate, Madison had to settle for something less than explicit approval, but something more than Lee’s emphasis on the Convention’s illegality. On September 28, Congress resolved that “said report … be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof in conformity to the resolves of the Convention.”86 While Congress refrained from passing on the merits of the Constitution, this explicit confirmation of the Convention’s triggering decision was crucial, as events soon proved.87
Violence in Philadelphia
Even before they received word of Congress’s resolution, the Federalists sought to maintain momentum by pressing ahead in the Pennsylvania Assembly, demanding an immediate call for a state ratifying convention.88
A substantial minority were unimpressed. They pointed out that Pennsylvania’s constitution required a six-month pause between proposal of amendments and the election of delegates to a convention.89 Since the Federal Constitution amounted to a massive amendment of Pennsylvania’s, should not the Assembly wait six months? Surely the people should be given a chance to digest the proposal before electing delegates?
The Federalist majority ignored these very reasonable complaints and proposed to hold an election within nine days. The dissenters described their response in a joint letter to their constituents:
In these circumstances we had no alternative; we were under a necessity of either returning to the House, and by our presence, enabling them to call a convention before our constituents could have the means of information or time to deliberate on the subject, or by absenting ourselves from the House, prevent the measure taking place. Our regard for you induced us to prefer the latter and we determined not to attend in the afternoon…. [W]e determined the next morning again to absent ourselves from the House, when James M’Calmont, Esquire, a member from Franklin, and Jacob Miley, Esquire, a member from Dauphin, were seized by a number of citizens of Philadelphia, who had collected together for that purpose; their lodgings were violently broken open, their clothes torn, and after much abuse and insult, they were forcibly dragged through the streets of Philadelphia to the State House, and there detained by force, and in the presence of the majority … treated with the most insulting language; while the House so formed proceeded to finish their resolutions, which they mean to offer to you as the doings of the legislature of Pennsylvania.90
Note the menace of the final line. Had the House lost its status as “the legislature of Pennsylvania” by procuring its quorum through blatant coercion? Should the dissenters urge their constituents to boycott the elections for the Convention?
News of the Federalist mob, and its coercive actions, swept the nation.91 The threads of political legitimacy were visibly beginning to unravel—a process more easily started than stopped.
Would the unraveling have spun out of control had not Congress confirmed the Convention’s triggering decision? Without unconventional reinforcement, would Philadelphia’s call for ratifying conventions have precipitated a series of mob scenes, and legislative manipulations, discrediting the entire initiative?
Throughout the coming months, the Continental Congress continued to play an active role,92 and the Federalists made repeated and self-conscious93 use of their unconventional strategy to prop up the Convention’s revolutionary triggering decision.
A crucial moment came on July 2, 1788, when Congress learned that New Hampshire was the ninth state to ratify. It quickly took the lead in organizing the new government. Within a week, a special committee proposed that Presidential Electors be appointed in the states that had ratified the Constitution by the first Wednesday in December, who would then “Assemble in their respective States and Vote for a President, and that the first Wednesday in February next be the time, and——the place for Commencing proceedings under the said Constitution.”94 Throughout the summer, there was a fierce struggle to fill in the blank with the name of the nation’s next capital—which was finally resolved in favor of New York on September 13. For much of this time, all thirteen states voted—including states which had not ratified.95
To glimpse the importance of this ongoing official confirmation of the Convention’s nine-state rule, indulge a thought-experiment. As you read onward, imagine that Congress had responded to New Hampshire’s ninth yea by solemnly declaring that its governing charter, the Articles of Confederation, required the unanimous consent of all thirteen states before it would cede its constitutional authority to the new President, House, and Senate. How would this have changed the outcome of the ratification struggle?
Although the proposed Constitution completely cut state legislatures out of the ratification process, the text did not accurately describe institutional realities. Success depended heavily on the Federalists’ unconventional use of existing institutional authority. In each state, the revolutionaries sought to persuade the legislature to ignore the legalistic quibblings of their opponents and get on the institutional bandwagon by calling for a ratifying convention. They then used these legislative anchors to respond to charges of illegality down the road.96
This strategy did not get off to an auspicious start in Pennsylvania. But the violent violation of the Pennsylvania constitution allowed the Federalists to catch their opponents by surprise in a six-week election campaign and win a two-to-one margin in the Pennsylvania convention. At about the same time, Federalists were winning in four small states that depended on a strong central government for their economic survival.97 By January 9, 1788, the revolutionaries had once again established institutional momentum.
But nobody could be optimistic about the future. On February 13, 1788, the New Hampshire Federalists found themselves outnumbered at their convention by more than a two-to-one margin. Foreseeing disaster if they pushed forward, they postponed their meetings for three months in the hope that the closely divided Massachusetts convention would ratify in the interim.98
Things were going no better in North Carolina. There is evidence of “heated debates” in the legislature prior to the call for a ratifying convention.99 When elections were held on March 28, the Anti-Federalists won a landslide victory of 184–84, despite the fact that Federalists had twice precipitated riots at polling places and run off with some ballot boxes.100 The convention would meet in July, but nobody was optimistic.
The news was even worse in New York. On January 31, Cornelius Schoonmaker generated a bitter debate in the General Assembly when he proposed to amend the call for a ratifying convention by declaring that the Philadelphia Convention had exceeded its powers and that ratification would “materially alter” New York’s constitution “and greatly affect the rights and privileges” of New York residents.101 This was voted down 27 to 25 after the parchment containing the proposal was discovered to contain scratched-out writing hostile to the Constitution. In the Senate, Robert Yates, who had walked out of Philadelphia, proposed a resolution denouncing the Convention for going “beyond their powers” and asserting that “they have not amended, but made a new system.”102 This motion was rejected by 12–7, and the Senate voted 11 to 8 to accept the Assembly’s call for a June 17 convention, with balloting for delegates on April 29. This election returned forty-six Anti-Federalists and only nineteen Federalists.103 The June convention threatened disaster.
And then there was Rhode Island. In its February session, the legislature refused to call a convention, putting the Constitution to the people in a special referendum: “[We] cannot make any innovation in a Constitution which has been agreed upon and the compact settled between the governors and governed, without the express consent of the freemen at large by their own voices individually taken in town meetings assembled.”104 The vote was 2,708 against the Constitution and 237 in favor, with an indeterminate number of Federalists boycotting the election. In a letter of April 5 to the Continental Congress, Governor Collins reported the result and defended the procedure:
Although this state has been singular from her sister states in the mode of collecting the sentiments of the people upon the Constitution, it was not done with the least design to give any offence to the respectable body who composed the convention, or a disregard to the recommendation of Congress, but upon pure republican principles, founded upon that basis of all governments originally deriving from the body of the people at large.105
We can now glimpse the supreme importance of the Philadelphia Convention’s triggering decision. With four states pointing decisively in a negative direction by spring, the Constitution was a dead letter under the Articles’ requirement of unanimity.
Especially when opponents could cloak their opposition with attractive rhetoric. Rather than opposing the Constitution outright, they often proposed a middle road: Why not condition ratification upon the acceptance of perfecting amendments like the Bill of Rights?
In rebuttal, Federalists extended the revolutionary arguments Madison had made before the Continental Congress. They opposed preratification amendments on the ground that these would be governed by the unanimity rule laid down by Article XIII of the Confederation. If opponents were interested in amendments that might actually pass, they should ratify first and then take advantage of Article Five’s more relaxed approach!106
But it would take more than clever rhetoric to gain success. Even with the nine-state rule, the Federalists barely squeaked through. A crucial turning point came in Massachusetts. Federalists found themselves outnumbered by opponents at the convention.107 In desperation, they focused on John Hancock, who “had it in his power to throw the convention’s vote either way.”108 The vain Hancock was assured of the Vice Presidency or even the Presidency if Virginia did not ratify the Constitution in time to put forth Washington. As Forrest McDonald says, “[n]othing could have appealed to Hancock more, and he gave his support to ratification.”109 After five hard weeks, the Federalists gained a narrow majority by supporting a “conciliatory proposition” insisting on a series of amendments as soon as the new government was established.110 The vote was 187 to 168, with nine abstentions.
Then two more states came through. Maryland was won rather easily, despite the powerful, and often legalistic, denunciations of Luther Martin and others.111 Victory in South Carolina was owed entirely to a gerrymander that converted the Federalists’ 40 percent of the popular vote into 60 percent of the convention seats.112
That made eight, which permitted the Federalists to squeeze the two major outstanding states, Virginia and New York. In Virginia, the Anti-Federalists proved better at clever tactics. Though the polls returned 85 Federalists and only 66 Anti-Federalists, the Antis managed to convert a substantial number at the convention. Twelve delegates from the district of Kentucky yielded especially good pickings, making the outcome uncertain.113
The convention opened with Patrick Henry demanding that the relevant legal papers—from the Annapolis Report onward—be read on the floor to establish the illegality of the entire initiative. The Federalist Edmund Pendleton responded, characteristically, by urging his fellow delegates “not to consider whether the federal Convention exceeded their powers. It strikes my mind that this ought not to influence our deliberations.”114
Although Henry withdrew his motion, his speeches were full of legalistic attacks upon “a proposal that goes to the utter annihilation of the most solemn engagements of the states—a proposal of establishing nine states into a confederacy, to the eventual exclusion of four states. … The people gave them no power to use their name. That they exceeded their power is perfectly clear.”115 Governor Randolph, who had been a delegate at Philadelphia, presented a characteristic response:
[Henry] objects because nine states are sufficient to put the government in motion. What number of states ought we to have said? Ought we to have required the concurrence of all the thirteen? Rhode Island—in rebellion against integrity—Rhode Island plundered all the world by her paper money; and, notorious for her uniform opposition to every federal duty, would then have it in her power to defeat the Union … Therefore, to have required the ratification of all the thirteen states would have been tantamount to returning without having done any thing. What other number would have been proper? Twelve? The same spirit that has actuated me in the whole progress of the business, would have prevented me from leaving it in the power of any one state to dissolve the Union; for would it not be lamentable that nothing could be done, for the defection of one state? A majority of the whole would have been too few. Nine states therefore seem to be a most proper number.116
Hear the voice of the confident revolutionary, defending the Convention’s decision by an unmediated appeal to necessity and the public good. Rather than apologizing for their revolutionary nine-state rule, the Federalists constantly threatened the delegates with the secessionist consequences that would follow if Virginia rejected the Constitution and another state supplied the missing vote.117
This forced the Anti-Federalists onto the defensive. William Grayson found himself responding to fears that Pennsylvania and Maryland would invade Virginia if it did not ratify: “Have they not agreed, by the old Confederation, that the Union shall be perpetual, and that no alteration should take place without the consent of Congress, and the confirmation of the legislatures of every state? I cannot think that there is such depravity in mankind as that, after violating public faith so flagrantly, they should make war upon us, also, for not following their example.”118 And Patrick Henry, responding to such Federalist charges, predicted that the Constitution could not survive if Virginia rejected it:
They would intimidate you into an inconsiderate adoption, and frighten you with ideal evils, and that the Union shall be dissolved. ‘Tis a bugbear, sir: the fact is, sir, that the eight adopting states can hardly stand on their own legs. Public fame tells us that the adopting states have already heart-burnings and animosity, and repent their precipitate hurry: this, sir, may occasion exceeding great mischief. When I reflect on these and many other circumstances, I must think those states will be found to be in confederacy with us. If we pay our quota of money annually, and furnish our ratable number of men, when necessary, I can see no danger from a rejection.119
“Bugbear” or no, the final words voiced in the Convention suggest how large the nine-state rule played in the outcome. As we have seen, Randolph had defended the Convention’s revolutionary break with Article XIII, but his general position was more complex. As a delegate in Philadelphia, he ultimately refused to sign the proposal, and as the sitting governor of Virginia, his opinion was influential with many fence-sitters.120 Here is how he justified his affirmative vote:
Mr. Chairman, one parting word I humbly supplicate. The suffrage which I shall give in favor of the Constitution will be ascribed, by malice, to motives unknown to my breast. But, although for every other act of my life I shall seek refuge in the mercy of God, for this I request his justice only. Lest, however, some future annalist should, in the spirit of party vengeance, deign to mention my name, let him recite these truths—that I went to the federal Convention with the strongest affection for the Union; that I acted there in full conformity with this affection; that I refused to subscribe, because I had, as I still have, objections to the Constitution, and wished a free inquiry into its merits; and that the accession of eight states reduced our deliberations to the single question of Union or no Union.121
The final vote was 89–79.122
The nine-state rule was yet more decisive in New York.123 Facing a hostile 46-to-19 majority, the Federalists played a waiting game when the convention began on June 17.124 With both New Hampshire and Virginia deliberating, they moved that the convention debate the Constitution clause by clause—stalling for time until one of these states contributed the ninth vote for secession from the Confederation.125
The gambit worked. News of New Hampshire’s ratification reached the convention on June 24, and the event is mentioned the next day:
Mr. Chancellor LIVINGSTON observed, that it would not, perhaps, be altogether impertinent to remind the committee, that, since the intelligence of yesterday, it had become evident that the circumstances of the country were greatly altered, and the ground of the present debate changed. The Confederation, he said, was now dissolved.
The question before the committee was now a question of policy and expediency. He presumed the convention would consider the situation of their country. He supposed, however, that some might contemplate disunion without pain. They might flatter themselves that some of the Southern States would form a league with us; but he could not look without horror at the dangers to which any such confederacy would expose the state of New York. He said, it might be political cowardice in him, but he had felt since yesterday an alteration of circumstances, which had made a most solemn impression on his mind.126
But Governor George Clinton, the leading opponent of the Constitution, was no “political coward.” He remained steadfast, though his troops were uncertain as to their next step.127
Hamilton, still desperate, wrote to Madison on June 25 that “[o]ur chance of success here is infinitely slender, and none at all if you go wrong.”128 After news of Virginia’s ratification arrived, he was still writing that “[o]ur arguments confound, but do not convince—some of the leaders however appear to me to be convinced by circumstances.”129 Only on July 26 did the New York convention approve by a vote of 30–27, with eight abstentions. To make their unhappiness abundantly clear, the delegates sent a circular letter to all state governors:
We, the members of the Convention of this state, have deliberately and maturely considered the Constitution proposed for the United States. Several articles in it appear so exceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revision of them by a general convention, and an invincible reluctance to separating from our sister states, could have prevailed upon a sufficient number to ratify it, without stipulating for previous amendments. We all unite in opinion, that such a revision will be necessary to recommend it to the approbation and support of a numerous body of our constituents.130
This theme dominates the entire letter, which urges the governors to ask their legislatures to call a second convention.
I hope you have been keeping in mind the contrarian scenario which introduced this analysis: Suppose that the Continental Congress had repudiated the Convention’s nine-state rule and had repeatedly declared itself duty-bound to defend the Articles’ proud assertion that “the Union shall be perpetual” unless and until all thirteen states agreed to its revision. Would Governor Randolph have led the fencesitters to endorse the Constitution in Virginia? And what of Governor Clinton and the overwhelming Anti-Federalist majority in New York?
Under the contrarian scenario, the First Congress after ratification would have begun with a bare quorum of nine states in attendance—with New York and Virginia joining North Carolina and Rhode Island in a chorus of legalistic condemnation of their secession from the “perpetual” Union. Under these conditions, would the new Constitution have survived?131
And yet, for all of the Federalists’ unconventional success, the First Congress began as a secessionist body. Rhode Island’s legislature remained defiant after the referendum, refusing to call a ratifying convention. North Carolina’s convention refused to crumple upon the news of Federalist success in Virginia and New York. After eleven days of debate that rehearsed familiar charges of illegality,132 Anti-Federalist leader Willie Jones carried a resolution, 184–84, neither rejecting nor ratifying the Constitution but taking up New York’s call for a second federal convention. Urging this convention to consider a twenty-item Bill of Rights and twenty-six other amendments prior to ratification, the Anti-Federalists triumphantly adjourned on August 2.133
The ball was now in the Federalists’ court. Unless and until the dissenters got on the bandwagon, the problematic legality of the new regime would be a matter of open and endless contestation. There was an ever-present possibility that the Federalist success would unravel—as one or another key state reconsidered its secessionist impulses or demanded a second constitutional convention as a price for remaining within the Union. How then did the Federalists solve their problem of constitutional consolidation?
By a mix of democratic countermobilization and coercive threat. The democratic strategy was on display in North Carolina, where Federalists waged an energetic campaign for a new convention, which was granted by a newly elected legislature in November of 1788. With elections scheduled for August 1789, the Federalists had plenty of time to organize a successful grass-roots campaign: North Carolina’s second convention ratified in November by 195–77.
Rhode Island posed a more difficult problem. Despite the disastrous referendum, Federalists continued to campaign for a convention and persuaded the legislature to reconsider in January 1790. When the departure of a legislator for church deadlocked the General Assembly, Governor Collins cast the tie-breaking vote, citing “the extreme distress we were reduced to by being disconnected with the other States.”134 But Rhode Islanders were unimpressed. The Anti-Federalists won a slim majority at the convention. After four days of desultory debate, the meeting adjourned.135
Congress then began to play tough. In May 1790, the Senate approved the Rhode Island Trade Bill, which embargoed all trade with the state and demanded immediate payment in hard currency of all its debts to the United States.136 The Senate’s debates were not then published, but the notes of Senator William Maclay of Pennsylvania reveal that he called the action “premature” and distinguished between imposing sanctions as “a punishment for rejection” of the Constitution and doing so on the basis of a “supposition that they would ruin our revenue.” The latter course might be legitimate if the facts could be established, and this may be why he called the statute “premature.” But at the present time, “the bill could not be justified on the Principles of freedom law the Constitution or any other Mode Whatever.”137
According to Maclay, Pierce Butler of South Carolina rose to defend the bill: “It is no infringement of Her Sovereignty to withdraw your trade … Granted—Mr Izard says their little State is brought into Compact with the other States.”138 Despite the legal compunctions of Ralph Izard and Maclay, the Senate passed the bill by a vote of 13 to 8 and sent it to the House.
Meanwhile the Rhode Island convention reassembled, and once again the Anti-Federalist majority moved for adjournment, but this time they were defeated. The trading centers of Providence and Newport threatened secession if the Constitution were to fail again.139 Finally, on May 29, two Anti-Federalist delegates defied their instructions, and the Constitution was ratified by a vote of 34–32.
Just in time: the House of Representatives had already considered the Rhode Island bill briefly, but dropped it upon learning of ratification on June 3, 1790.140
The bandwagon had finally lurched to its ultimate destination.
I have been trying to redeem the promise of Anglo-American legal method. Rather than indulging heady abstractions about constitutional change, we have been approaching the Founding in the way lawyers address any important precedent—beginning with a “statement of the facts” that describes the Federalists’ legal problems, and how they went about solving them step by step.
My approach has been functional, as was the Federalists’. It turns out that transforming a nation’s constitutional order is not one problem, but many. There is a Sisyphean aspect to the Federalist enterprise—just as Madison and his friends managed to push one big boulder to the top of the hill, another came hurtling down.
But it is a mistake to think of the Federalists’ problems as if they were random bolts from the blue. There was a pragmatic logic to the sequence—the Federalists’ problems did not merely follow one another; the solution of one generated a pragmatic imperative to confront the next. Begin with the relationship between the signaling and proposal stages. As the Federalists were well aware, the country would not take their proposal seriously unless painstaking efforts were made to get a strong majority of the states to send delegates to their Convention. Only when they had solved this signaling problem did they have to get serious about their proposal. As they did so, the pragmatic linkage between proposing and triggering became unavoidable: if the Federalists were determined to propose a revolutionary reform of ideals and institutions, they simply could not accept the old ratification rule. A different pragmatic link connected triggering to ratifying: the Federalists could not win their political campaign for ratification without sustaining the credibility of their triggering decision. And finally, problems of constitutional consolidation burst on the scene only after success at each of the four prior stages.
I hope these points seem obvious, because they explain a puzzle raised repeatedly in this book. As we move beyond the Founding to explore other great turning points of the American past, we will find Reconstruction Republicans and New Deal Democrats engaging in the same five Founding activities pioneered by their Federalist predecessors—signaling, proposing, triggering, ratifying, and consolidating their constitutional authority in roughly the same order. At first glance, the recurrence of this pattern seems mysterious—or worse yet, a tell-tale sign of a grim determination to impose my fivefold schema on constitutional history without serious attention to the particularities of particular cases.
But this skeptical treatment of my organizing schema ignores its pragmatic basis. The five-phase pattern recurs because the problems recur. It is, of course, possible to imagine a group trying to compress constitutional transformation into a single moment of time: Not only do they emerge from the blue to announce the coming of the new regime, but all existing institutions rejoice upon hearing the Good News and meekly accept whatever role has been assigned them in the new dispensation.
But this is a version of the Second Coming; when mere mortals seek to reenact it, the predictable result is an attempted putsch ending in civil war or military despotism (or both). The Founding example demonstrates, however, that a democratic effort at revolutionary reform can occur through a temporally extended process that enables reformers to build up their constitutional credibility by solving a series of discrete, but interrelated, problems.
This point is enough to establish an analytic agenda. If, as I will show, both Reconstruction Republicans and New Deal Democrats understood themselves as confronting the Federalists’ problems, we can compare and contrast the ways in which these three groups of revolutionary reformers tried to solve them. As in this chapter’s study of the Federalists, we will follow both Republicans and Democrats as they confronted the challenges of signaling, proposing, triggering, ratifying, and consolidating. Unsurprisingly, each generation of revolutionary reformers used different institutional tools to solve their common problems—and it will take a good deal of time and effort to compare and contrast them.
In the end, however, the effort will be rewarded by fresh insights into the enduring dynamics of the American constitutional system. Despite the very important differences in institutional technique elaborated over the generations, there are fundamental similarities in the way Federalists, Republicans, and Democrats confronted the system’s challenge to their claim to speak for the People. I have already suggested one recurring pattern: the unconventional methods through which constitutional reformers repeatedly sought and won official confirmation of their popular mandate. But we will uncover many more. By exploring the deeper regularities that organize the different efforts of Federalists, Republicans, and Democrats to speak for the People, we will lay bare the deepest structures of America’s dualistic Constitution.