Its Sources and Its Application
Section 1. The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. 137
137 As the Articles of Confederation (Art. XIII) provided that no alteration should ever be made in them unless "agreed to in a Congress of the United States and be afterwards confirmed by the legislature of every State ", this complete superseding of the Articles by the action, not of "a congress", but of a Constitutional Convention, and the ratifying of that action by nine States instead of every one of the thirteen, has been described as revolutionary. However, the people ratified the Constitution as prepared, and it was within their power to make any change that seemed desirable. It has been seen129 that the provision requiring unanimity of State action was in practice destructive of government. It was the belief in the Constitutional Convention that the new instrument could not at first secure the approval of every State. That was correct. The Constitution went into operation with George Washington as President and a Congress of two Houses sitting before North Carolina and Rhode Island ratified it. "To have required the unanimous ratification of the thirteen States," wrote Madison in "The Federalist", . . . "would have marked a want of foresight in the Convention which our own experience would have rendered inexcusable." There was much debate over a proposal that the Constitution be submitted for ratification to the legislatures of the States instead of to "conventions", but the proposal was rejected. Some feared that the legislatures might not ratify. It has been seen, however 129, that amendments to the Constitution may be ratified in either way.
On September 20, 1787, three days after the Constitutional Convention had finished at Philadelphia the drafting of a Constitution, a copy of the new instrument was laid before the Congress, sitting in New York, accompanied by a letter from George Washington, who had presided over the Convention. "And thus the Constitution," he wrote, referring to the many conflicting opinions and interests which had been adjusted, "which we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable." Congress at once sent a copy of the Constitution, with a copy of Washington's letter, to the legislature of each State and urged the calling of ratifying conventions. Then began the great battle in each of the thirteen States over ratification. The little State of Delaware, the only fear of which had been removed by the grant of a vote in the Senate equal to that of the largest State 18, 131, was the first to ratify, on December 16, less than three months after the Constitutional Convention adjourned. But in Pennsylvania, New York, Massachusetts, Virginia, and Maryland the opposition was strong and it had able leadership -- although most of the objections raised look unimportant now when viewed in the light of experience. It was objected that the vote in each House of Congress was to be by individuals instead of by States; that Congress was to have an unlimited power of taxation; that too much power was given to the National judiciary; that paying the salaries of senators and representatives out of the National treasury would make them independent of their own States; that an oath of allegiance to the National Government was to be required; that laws impairing the obligation of contracts were to be prohibited: that the document was the production of "visionary young men", like Hamilton and Madison; that the election of members of the House of Representatives for so long a term as two years would be dangerous; that the new Congress might make itself a perpetual oligarchy and tax the people at will; that a National capital in so vast an area as ten miles square (the District of Columbia), independent of the State, would foster tyranny; that the power to maintain an army would bring oppression; that Congress would use the power granted with respect to elections to destroy freedom of the ballot; that assent, should not be given to the continuance of the slave trade until 1808; that the Constitution contained no bill of rights, and that it gave no recognition to the existence of God.
Ratification was vigorously opposed by such men as Patrick Henry, Benjamin Harrison, John Tyler, and Richard Henry Lee of Virginia. Elbridge Gerry of Massachusetts, Luther Martin and Samuel Chase of Maryland, Thomas Sumter of South Carolina, and George Clinton and Melanchton Smith of New York.
While much pamphleteering and debating was done in Pennsylvania and elsewhere, the great battle was waged in New York. Not only was that State necessary to the Union because it lay between northern and southern States which had already ratified and which could not, be close commercially or politically if divided by a foreign State, but more than two thirds of the members of the convention called in New York to ratify or reject were opposed to the Constitution. Alexander Hamilton conceived the idea of explaining each part of the Constitution in a series of short articles which appeared in different publications. James Madison and John Jay aided in the work. Of the eighty-five letters published and signed Publius, five were written by Jay, twenty-nine by Madison, and fifty-one by Hamilton. They helped to carry the day, and New York entered the Union on July 26, 1788, of which it became the Empire State. In book form those letters are known as the "Federalist", the most brilliant work on our Constitution. During the French Revolution, which followed ours, the "Federalist" was translated into French. Later it appeared in German during dreams of a republic. It appeared in Spanish and Portuguese in South America, for fifteen republics south of us framed constitutions after ours. While the correspondence of the time throws much light upon the workings of the Constitutional Convention, the sessions of which were secret, like those of the British Parliament, the main source of information is the Madison Papers or the Madison Journal, made up from the shorthand notes of the great delegate from Virginia. Congress caused the publication of the notes in 1843.
"No man could say whether argument or interest had won the fight for the Constitution," says Woodrow Wilson ("A History of the American People", Vol. 3, p. 98), referring to the "Federalist" and the other discussions of the time, "but it was at least certain that nothing had been done hastily or in a corner to change the forms of Union. These close encounters of debate had at least made the country fully conscious of what it did. The new Constitution had been cordially put through its public ordeal. All knew what it was and for what purpose it was to be set up. Opinion had made it, not force or intrigue; and it was to be tried as a thing the whole country had shown itself willing to see put to the test."
DONE in Convention by the Unanimous Consent of the States present. 138
138 Rhode Island was not present. While there was "unanimous consent of the States present", some delegates of States refused to sign. For New York the only signature was that of Alexander Hamilton.
Only fifty-five of the sixty-five delegates chosen by the States sat in the Constitutional Convention. Of those, forty-two were present at the signing. Three of those present (Randolph and Mason of Virginia and Gerry of Massachusetts) refused to sign because they believed that too much power was taken away from the States.
the Seventeenth Day of September in the Year of our Lord, one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. IN WITNESS whereof We have hereunto subscribed our Names, 139
139 Thus after four months of anxious toil," says Fiske ("Critical Period of American History", p. 304), "through the whole of a scorching Philadelphia summer, after earnest but sometimes bitter discussion, in which more than once the meeting had seemed on the point of breaking up, a colossal work had at last been accomplished, the results of which were most powerfully to affect the whole future career of the human race so long as it shall dwell upon the earth." The calculation has been made that the Constitutional Convention spent upon its task eighty-six working days.
"The establishment of our institutions," wrote President Monroe, "forms the most important epoch that history hath recorded. They extend unexampled felicity to the whole body of our fellow-citizens, and are the admiration of other nations."
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