The Six Stages of Ratification
Stage I — Now For the Bad News
Article VII of the proposed Constitution provided for its ratification by three quarters of specially called state ratifying conventions. Once we get the ratification of a minimum of nine popularly elected state conventions, then this proposed Constitution will be “this Constitution” between the nine or more that signed. It will not cover the four or fewer states that might not sign. This mode of adoption is a significant departure from the Articles of Confederation. For the Articles to come into effect, all the state legislatures had to agree. Even if only one state disagreed, the Articles were not operative on any of the states. Under the Articles, moreover, any revision or change to the articles of agreement, had to receive the unanimous consent of the thirteen state legislatures.
There is a low ground and a high ground element to this departure by the Framers of the proposed Constitution from the equal state/unanimity voting requirements of the Articles. The low ground is very practical: Why repeat the Articles mode of ratification when you know Rhode Island is not going to ratify? All this work in Philadelphia will have been in vain and Rhode Island will have prevented what eleven states might very well endorse.
The high ground raises the question of justice: The principle of the Revolution is that legitimate government is based in the consent of the governed and that the people have the right to choose the form of government under which they shall live. The Articles of Confederation, however, are based on the exclusive consent of the states and operates only with their approval. In order to fulfil the revolutionary principle that the consent of the governed is the only legitimate foundation of government, the Framers proposed a popular, rather than exclusively state, based ratification. But as a nod to reality, the voice of the whole people will be the collected through state based popular conventions.
To secure the approval of nine out of thirteen state ratifying conventions looks pretty easy on the surface. It sure looks more promising than securing the unanimous consent of thirteen state legislatures. But let’s just change the math a little bit. All the participants know ahead of time that since Rhode Island declined to send delegates to Philadelphia, that the people of that state are unlikely to ratify. Thus, Madison and friends actually need nine out twelve and the Antifederalist opposition need four out of twelve to block adoption of the Constitution. And the word in the street, so to speak, is that North Carolina might not sign despite the various accommodations during the Convention debates. There was some whining in the state about an absence of a Bill of Rights and perhaps not enough had been done to protect “the peculiar institution” of slavery. With respect to the slavery issue, the delegates from South Carolina and Georgia had been particularly demanding at the Constitutional Convention. Would the concessions be sufficient to satisfy the folks back home to support ratification?
Even if we put South Carolina and Georgia to one side, we need to recognize that Madison and friends actually need nine out of eleven state ratifying conventions to approve the proposed Constitution. The Antifederalist opposition need three out of eleven. What looked easy at first — nine out of thirteen, rather than thirteen out of thirteen—turns out to be really nine out of eleven. And the Antifederalist task — five out of thirteen rather than one out of thirteen under the Articles—is not really quite as formidable when we get into the political realties of the day. We need to pay close attention to these realities—even a casual glance at Madison’s correspondence during this period demonstrates his close attention to voting patterns and political endorsements — because the manner of adoption is a vital part of the Founding narrative.
But there is even more difficulty facing Madison and friends than these numbers suggest. Governor Randolph from Virginia, George Mason from Virginia, and Elbridge Gerry from Massachusetts refused to sign the Constitution on September 17, 1787. These delegates were in Philadelphia for the entire conversation, but peeled off near the end of the Convention. Now these are not political lightweights. You’re not a lightweight if you’re the introducer of the Virginia Plan, or the author of the Virginia Bill of Rights, or a signer of the Declaration of Independence. These three heavyweights, from two of the largest and most prominent states in the union, presented a potentially formidable obstacle to the ratification of the Constitution. There is a certain irony here. Randolph introduces the Virginia plan and then does not sign! Here is another irony. Scholars often describe the Convention debates as a battle between the small states and the large states. Yet, here we have three non-signers from two of the largest states!
Randolph declared the state conventions should be at liberty to offer amendments to the plan. These amendments should be bundled up and presented at a second Constitutional Convention for deliberation and decision. Can’t you see Madison saying, “We’re lucky if we get out of this one. Can you imagine us going to 13 state ratifying conventions, inviting further discussions, bundling up all those suggestions, coming together again, and calmly proposing a revised Committee on Detail and Committee on Style report? No, no, no. One miracle in Philadelphia is enough.”
To make matters even worse for the friends of the Constitution—as if the numbers so far aren’t a sufficiently formidable challenge—there is trouble brewing in Virginia. Patrick “give me liberty or give me death” Henry, apparently always ready for a screaming match, and Richard Henry Lee, who introduced the Declaration of Independence in the Second Continental Congress, declined their appointments to attend the Constitutional Convention in Philadelphia. Henry is reputed to have said: “I smell a rat.” Lee, who was then the current leader of the Confederation Congress, took the more roundabout route: He had a conflict of interest, he remarked, in attending the Philadelphia Convention since the intent was to demolish the Articles under which he was President. These two heroes of the revolution were eager to do battle over the ratification of the Constitution.
But there was even more bad news. Governor George Clinton of New York was also eager for a fight. Add John Lansing and Robert Yates—Philadelphia Convention delegates from New York who left the Convention in early July to join Clinton in an assault on the new plan of government—to the mix and we have the makings of a very difficult campaign in New York for Madison and friends.
No wonder that the idea for The Federalist essays was the brain child of Hamilton and that the essays, written primarily by Hamilton and Madison, were addressed initially to the people of New York and then circulated up and down the Atlantic coast. It is also significant that Brutus, a New York Antifederalist, and The Federal Farmer, probably Richard Henry Lee of Virginia, wrote the best Antifederalist essays.
The Response of the Confederation Congress
One last piece of bad news. When the Constitution was signed on the 17th of September, the question was, “Shall we take it to Congress?” On September the 17th, Washington and the rest of the Framers went upstairs in the State House and said, “We’ve signed.” The Pennsylvania Assembly was nearing the end of its session, and what they wanted to do was to authorize the calling of a ratifying convention. But they had a problem: “Should the Congress of the United States approve this document before they issued a call for elections to a state ratifying convention?” Remember the mandate. “We the Congress give you the delegates the mandate to revise the Articles, and then come back with your recommendations.” So they’ve got this quandary: do they obey a strict understanding of the rule of law and risk losing the opportunity to take the plan to the people in a timely fashion, or do they take it to the people as soon as possible, and risk being accused of violating the rule of law? The decided to go to Congress.
William Jackson, the recorder at the Constitutional Convention, gets on a horse, and takes the Constitution with him to New York where Congress was still in session. Madison and other Philadelphia delegates go because they are also members of the Confederation Congress. Here is the list: William Samuel Johnson, William Few, William Pierce, Nathaniel Gorham, Rufus King, Nicholas Gilman, John Langdon, William Blount, Pierce Butler, and James Madison. They are present between September 20 and 28, 1787. And waiting for them there are Richard Henry Lee from Virginia, and Melancton Smith from New York. And Madison says, in effect, “We have a Constitution. We want the Congress to give a unanimous endorsement and send it out right away.” And Lee says, “Before I put my signature on this, I want to read it. Very slowly and very carefully. Let’s open it up and take a look at it, clause by clause.” He wrote to George Mason on October 1, 1787: that the Madisonian forces made the issue, “this or nothing, and this urged with a most extreme intemperance.”
Madison wanted the Congress to send the plan forward with a) an unanimous endorsement and b) a rule for the ratifying conventions: the delegates are not at liberty to alter and amend it. Just vote the Constitution up or down. Both sides come to the first of many compromises that define the ratification process. And compromise, while it often leaves both sides dissatisfied, is the obvious path that ultimately must be taken where there are a vast number and variety of interests and opinions that must be accommodated. Congress will neither endorse nor oppose the Constitution. Congress will just say, we send it forth, and let the people decide. That’s the best that Madison could get, namely, get it out of Lee’s hands. Madison persuades the Congress to release the Constitution, but he doesn’t get the endorsement that he wants. Lee releases the Constitution, but he doesn’t give an endorsement. That leaves him open to intensifying his opposition efforts in Virginia. He becomes the presumed author of The Federal Farmer Letters.
Jackson makes his way back to Pennsylvania with the Constitution on the very day that the Pennsylvania Assembly is supposed to adjourn. Well, the Pennsylvania politics at that time was divided by those who favored the Constitution, about 46, and those who disliked the Constitution, about 23.
Scholars who are suspicious of the legitimacy of the consent provisions of the Founding like to point out that force took place in the Pennsylvania Assembly in order to secure the necessary votes in favor of calling a ratifying convention before the Assembly adjournment. The Pennsylvania Constitution provides for quorum requirement of two-thirds of the membership. In practice that means that 46 members must be present. Since a few of the Federalist members were indisposed, a handful of Antifederalists were needed to secure a quorum. Knowing this, they hid in churches and taverns only to be forcefully removed and seated in the Assembly to secure the quorum and the vote needed to authorize the calling of the state ratifying convention.
Let the Campaign Begin
Let’s end with some possible good news. Over the last two hundred years, it is clear that the best kind of strategy in an American electoral campaign begins with the notion of declaring. One needs to declare victory as early and as often as one can, win big early and often, declare yourself the front-runner and ride on the bandwagon, declare that the opposition is incoherent and irresponsible, and even declare victory before you have victory. It’s important to note that in each situation, except Rhode Island, at least one Signer of the Constitution from that state showed up at the ratifying convention. That person became a critical expositor of what went on in Philadelphia, so that if there are doubts or questions about what the Framers meant or what they did, there was at least one person who signed the document there to declare the meaning of the Constitution.
One of the favorite campaign pieces from the pro-Constitutional side was the publication in Boston of the 1788 “Federal Calendar.” On the front of the calendar is a “Federal Chariot,” and in the chariot are George Washington and Benjamin Franklin. Talk about name recognition and endorsement. And then there are these thirteen horses (states) pulling the chariot on the ratification road. This became a collector’s item as well as enabling Americans to follow the progress toward ratification.