The Context of Ratification
By the end of May 1788, proponents of the Constitution had secured the approval of eight state ratifying conventions. Along the way, however, they made a critical tactical decision and an important, albeit non-binding, concession in order to deny the Antifederalists their first victory. In New Hampshire, facing sure defeat, the proponents secured an agreement at the ratifying convention to postpone a final decision, consult with the voters, hold a second election, and reconvene four months later. In Massachusetts, also in February, ten delegates abandoned their opposition to ratification in exchange for the proposition that “subsequent amendments” would be considered in the First Congress. This Massachusetts Compromise proposal”ratify now, amend later”moved an equally divided Convention to adopt the Constitution.
Securing the ninth state was not going to be an easy task. In fact, North Carolina and Rhode Island did not ratify the Constitution until November 1789 and May 1790 respectively. They did so only after the First Congress sent twelve amendment proposals to the states for ratification. Everything rested on the three remaining states: New Hampshire, Virginia, and New York. The best evidence suggests that going into the three ratifying conventions, the Federalist–Antifederalist delegate split was 52-52 in New Hampshire, 84-84 in Virginia and 19-46 in New York. And all were scheduled to meet in June: Virginia on the 2nd, New York on the 17th, and New Hampshire on the 18th.
It turns out that five delegates adopted the Massachusetts Compromise in New Hampshire after three days of debate. Thus the Constitution was officially ratified on June 21, 1788. Virginia delegates debated the merits of the Constitution from June 2 through June 25 unaware of the speedy New Hampshire ratification. Five delegates changed their mind and accepted the “ratify now, amend later” proposition on June 25. News that New Hampshire and Virginia had ratified reached New York during the early stages of deliberations. On July 26, New York, by a vote of 30-27, ratified the Constitution and proposed 25 items in a Bill of Rights and 31 amendments.
The Leading Delegates
Among those delegates who defended the Constitution at the Virginia Ratifying Convention were James Madison, “father of the Constitution”; John Marshall, future Chief Justice of the Supreme Court; and Governor Edmund Randolph who nearly a year before introduced the Virginia Plan and was one of two Virginia delegates to the Constitutional Convention who refused to sign on September 17, 1787. Opposing adoption of the Constitution were such heavyweights as George Mason, author of the Virginia Bill of Rights and the other non-signer in Philadelphia; Patrick Henry, renowned for his inflammatory and passionate speeches; and James Monroe, future President of the United States and author of the Monroe Doctrine.
June 2-June 10: Henry Sets the Tone
The delegates agreed to discuss the Constitution in a “systematic manner.” But the agreement to proceed “clause by clause” was broken early because Henry, starting with the Preamble and Article I, insisted on talking about the “big picture” rather than particular clauses. Unless, that is, Henry wanted to talk about particular clauses rather than the “big picture,” and when he did, he created horror stories of impending tyranny and doom being generated from particular clauses of the Constitution that were not under consideration. He was also very harsh with Randolph whom he accused of being “inconsistent.” Randolph, in turn, explained that he didn’t sign the Constitution in Philadelphia, but he was facing up to the reality that eight states had ratified, the country is in crisis, and so it now made sense to ratify and be an integral part of the Union. He demanded an apology from Henry for his “aspersions and his insinuations.” Delegate Nicholas summarized the early deliberations in this way: “Although we have sat eight days, so little has been done, that we have hardly begun to discuss the question regularly. The rule of the house to proceed clause by clause has been violated.”
Henry ignored the requests to address the particular clauses in an orderly manner. Even the normally placid Madison was upset with Henry. On June 11, he insisted on “a regular progressive discussion, than by that unconnected, irregular method which they had hitherto pursued.” Henry was unmoved; he cited a letter from Jefferson in Paris saying he wanted amendments and a Bill of Rights and proceeded to talk about the “transactions of Congress relative to the Mississippi.” On June 14, however, the delegates began a more regular coverage of the Constitution, and engage in a discussion of the powers of Congress in Article I, Section 8. They are particularly concerned about the militia clause and the “sweepings clause” officially known as the necessary and proper clause or the “implied powers” of Congress. Henry and Mason call for a Bill of Rights in order to make sure that “rights not given up are reserved” since, under the Constitution, Congress can decide whatever is necessary and whatever is proper. On June 16, they turn to Section 9, the limitations on Congress section. They pay particular attention to the slave trade clause. Over the next two days, they complete their coverage of Article I and turn their attention to Article II, the executive article.
The delegates discuss Article III, the judiciary article, on June 19, 20, 21, and 23. The Convention Recorder, not for the first or last time, notes that Madison said a lot of things “but spoke too low to be understood.” Of considerable interest are Marshall‘s extensive commentary on the jurisdiction of the federal judiciary and Henry‘s personal exchange with George Nicholas over the latter’s comment that Henry has “objected to the whole; and that no part, if he had his way, would be agreed to.” The President of the ratifying convention “hoped gentlemen would not be personal, that they would proceed to investigate the subject calmly, and in a peaceable manner.” On the 23rd and 24th, the delegates discussed Article IV.
June 24-June 27: Ratify Now, Amend Later
The issue of ratification becomes the focus of attention. Should “previous amendments” be secured before ratification or should ratification occur with the promise to introduce “subsequent amendments?” The delegates voted 80-88 to reject twenty items in a bill of rights and twenty Amendment proposals as a condition for ratification. The delegates then voted 89-79 to ratify the Constitution with a recommendation that “subsequent amendments” be sent to the First Congress for their consideration.
Who Changed Their Mind?
It is, of course, difficult to identify the delegates who changed their mind and decided to approve ratification of the Constitution. William Wirt Henry’s nineteenth century work on the life of Patrick Henry mentions the following delegates as voting “against the wishes of their constituents Humphrey Marshall, of Fayette County, Kentucky; Andrew Moore and William M’Kee, of Rockbridge; George Parker, of Accomac; Paul Carrington, of Charlotte; Levin Powell, of London; William Overton Callis, of Louisa; and William M’Clerry, of Monongalia.” In a letter dated June 9, 1788, Colonel Grayson stated “there are seven or eight dubious characters, whose opinions are not known and on whose decisions the fate of this important question will ultimately depend.” Grayson does not name names. And Jackson Turner Main lists the following as changing their mind: “William Roland, David Patterson, George Parker, Paul Carrington. W.O. Callis, Cole Digges, Miles King, Burwell Bassett, Willis Riddick, and Solomon Shepherd.”
I wish to thank Jack Polson for assisting me with the initial draft of the day-by-day summary of the Virginia ratifying convention.