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A Constitutional History of the United States
Chapter XV - The Adoption of the Constitution
by McLaughlin, Andrew C.
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Congress received the Constitution with no unseemly expression of
pleasure; indeed, as Bancroft says, it had been in reality invited "to light
its own funeral pyre." No body can be expected to decree gladly its own demise;
but there seems to have been no special desire on the part of the moribund
Congress to prolong its own futile life. On the twenty-eighth of September,
1787, a resolution without words of commendation was unanimously adopted
[1] transmitting the Constitution to the several legislatures to be
submitted by them to the state conventions.
The reception of the Constitution by the people at first appeared
favorable. Gouverneur Morris wrote a characteristic letter to Washington: "The
states eastward of New York appear to be almost unanimous in favor of the new
Constitution, (for I make no account of the dissension in Rhode Island)....
Jersey is so near unanimity in her favorable opinion, that we may count with
certainty on something more than votes, should the state of affairs hereafter
require the application of pointed arguments." He thought parties in New York
were nearly balanced, but as the state was "hemmed in between the warm friends
of the Constitution" there was ground for hoping that the "federal party" would
prove successful. Of Pennsylvania he had fuller knowledge and entertained
doubts. "True it is, that the city and its neighborhood are enthusiastic in the
cause; but I dread the cold and sour temper of the back counties, and still
more the wicked industry of those who have long habituated themselves to live
on the public, and cannot bear the idea of being removed from the power and
profit of state government...." [2]
Randolph reported favorable reception of the Constitution in Baltimore
and Virginia, while Madison gathered a like impression Concerning New York City
and most of the eastern states. But the ratification had dangerous foes to
meet, and as the days went by the contest became more serious. It will be
remembered that Yates and Lansing, of New York, had left the Convention at an
early day; and in a letter to Governor Clinton they forcibly expressed their
objections to the proposed system of government, for they believed any general
government, however guarded by declarations of rights, would be "productive of
the destruction of ... civil liberty...." Clinton and his immediate retinue
were particularly hostile and sought by correspondence with leaders of the
opposition in some of the other states to create a coöperative resistance.
Luther Martin of Maryland, who had declaimed vehemently against the new system,
went home to attack it. Gerry played a similar role in Massachusetts; he
declared in a letter to the legislature that the "liberties of America were not
secured by the system...." He believed that in many respects the Constitution
had merits and by proper amendments might be "adapted to the 'exigencies of
government, and preservation of liberty' "; the document as proposed had "few,
if any, federal features," but was "rather a system of national government."
[3] George Mason proved a valiant opponent of the new system to
which he had himself contributed.[4] Randolph, who had labored
earnestly in the Convention itself but had refused to sign, wrote the speaker
of the Virginia house, not condemning the Constitution but suggesting its
failings, the need of amendments, and the propriety of making changes "while we
have the Constitution in our power...." [5] Fortunately, however,
perhaps under the persuasion of Washington, he decided to favor adoption and
worked to that end in the Virginia convention. It was soon evident that there
would be strong opposition in three very important states, Massachusetts, New
York, and Virginia, and without them a union would be useless and
impracticable. A letter of Richard Henry Lee, written as early as October 16,
expressed the opinion of one who was prepared to battle with unstinted
persistence against ratification; a new convention ought to be summoned: "It
cannot be denied, with truth, that this new Constitution is, in its first
principles, highly and dangerously oligarchic...."
In the course of the public discussion few portions of the Constitution
escaped scathing criticism. Dangers were found lurking in one clause after
another and they were gleefully brought to light to confound the friends of the
new order. To meet such opposition naturally proved a difficult matter; for it
appeared not infrequently that every power granted was certain to be abused and
to involve the destruction of American liberties. The dread of granting power
filled many minds with foreboding; this dread was the most formidable obstacle
to be overcome. The new government seemed something extraneous and distinct, as
if it were not to be in the hands of the same people as those choosing the
state governments and not to be subject to popular control. The patience,
wisdom, and skill with which objections were met call forth deep admiration as
one reads to-day the pamphlets and debates of those trying years. Hamilton and
Madison deserve the greatest credit, probably, for masterly management and
skillful argument. But it is safe to say that the character of George
Washington secured the adoption of the Constitution; there was one man known to
be strongly in favor of the new system in whom the masses of men had faith.
Some persons feared the presidential authority under the new government; as
Patrick Henry said, "Your President may easily become King." [6]
Many foolish and extravagant attacks appeared in the newspapers. The delegates
in the conventions appreciated the magnitude and solemnity of their task; and
if the criticisms of the Constitution appear now to be the offspring of
unnecessary fear of tyranny, the earnestness and the general intelligence of
the discussion furnish marked evidence of political capacity. No mere analysis
of the arguments can present the impression gathered by any thoughtful reader
from the discussion, an impression of shrewdness and sagacity and common
sense.[7]
In some of the central states, conventions soon gathered and acted
promptly. Before the first of the year, the Constitution was ratified by
Delaware, New Jersey, and Pennsylvania, the two former unanimously giving a
favorable vote. In Pennsylvania, though the final vote was two to one for
acceptance, the debates lasted three weeks and were marked by the persistence
of a determined opposition sufficient to call for the full strength of Wilson
and McKean in advocacy of the new government.
Wilson's defense of the Constitution was very able. He had to meet two
main objections — the absence of a bill of rights and the charge that the
Constitution established a consolidated government. In answer to the former
objection he declared a bill of rights would be "highly imprudent". "In all
societies, there are many powers and rights which cannot be particularly
enumerated. A bill of rights annexed to a constitution is an enumeration of the
powers reserved. If we attempt an enumeration, every thing that is not
enumerated is presumed to be given." [8] He considered at length the
assertion "that the boasted state sovereignties will, under this system, be
disrobed of part of their power";[9] he spoke of the new system as a
"confederated republic". "I consider the people of the United States as forming
one great community; and I consider the people of the different states as
forming communities, again, on a lesser scale." [10] Denying that
the states would be obliterated, he asserted there would be consolidation so
far as the general objects of the union were concerned: "so far it was intended
to be a consolidation, and on such a consolidation, perhaps, our very
existence, as a nation, depends."[11] Though Wilson's statement
concerning the essential nature of a bill of rights is not without theoretical
foundation, practically there could be no sound objection to the announcement
of certain principles in the amendments to the Constitution, provided it was
made perfectly clear that the denial of certain powers did not imply that
powers not denied to Congress were granted.
The opponents of the Constitution were working for delay, and they
wanted amendments to be offered to Congress and "taken into consideration by
the United States" before the Constitution should be finally
ratified.[12] To this there was of course objection; the convention
decided against the proposal by a vote of forty-six to twenty-three, and the
Constitution was ratified by the same vote.[13] After adoption
public agitation and discussion ensued. Nearly nine months after the ratifying
convention had adjourned, a gathering at Harrisburg proposed amendments to the
Constitution and advocated a revision by a general convention from the several
states of the union.[14] But the discontented elements, here as
elsewhere, were not intransigent; they advised the people of the state to
acquiesce in the organization of the government.
January saw the adoption of the Constitution by Georgia and Connecticut;
the next month it was adopted by Massachusetts after a prolonged and serious
discussion. Maryland and South Carolina soon fell into line. Before the first
of June, therefore, eight states had ratified. The New Hampshire convention,
meeting in February, was adjourned to a later time, but finally adopted the
Constitution, June 21, 1788. But the all-important states of New York and
Virginia were still in doubt.
Massachusetts, as we have seen, voted for ratification early in the
winter, but a brief presentation of the convention's debates may now be given,
as well as some account of the controversies in Virginia and New York. In the
first of these states there was opposition from the interior
region,[15] where Daniel Shays had found his support, where people
were still smarting under a sense of unjust treatment, and still disliking the
social and economic power of Boston and the eastern section in general. Added
to this smoldering discontent was the fear, common to the opponents of the
Constitution everywhere, of a new government on which was bestowed vast
authority endangering the well-being of the states and the liberty of the
individual man. Hancock and Samuel Adams, both of them possessors of
considerable influence among the plain people, were reticent at first,
seemingly the prey of misgiving and uncertainty. Adams indeed wrote Richard
Henry Lee in December: "...I stumble at the Threshold. I meet with a National
Government, instead of a Federal Union of Sovereign States." Hancock was chosen
chairman of the convention but for a time did not attend the sessions because
of an illness which some persons thought would be cured when he discovered
which way the winds of popular favor were blowing. But ere long his uncertainty
vanished. Ratification was secured in Massachusetts, and it seems the anxiety
of Hancock and Adams was banished by a letter from Washington, which had been
printed in Virginia and Pennsylvania and was published in a Boston paper while
the convention was in session:[16] "... and clear I am if another
Federal Convention is attempted, the sentiment of the members will be more
discordant.... I am fully persuaded ... that it [the Constitution] or disunion,
is before us. If the first is our choice, when the defects of it are
experienced, a constitutional door is open for amendments and may be adopted in
a peaceable manner without tumult or disorder." This was a plain solution of
the perplexities of the anxious and earnest men who, like Adams, were stumbling
at the threshold and saw their dearly-won liberties surrendered to a new and
dreadful government.
The plan of ratifying the Constitution and recommending amendments was
followed. Nine amendments were proposed, and the representatives of the state
in Congress were enjoined to exert their influence to obtain adoption of the
amendments in the manner prescribed by the Constitution. But the victory was a
narrow one. Of the 355 delegates, 168 refused to yield even to the lure of
subsequent amendments. By a change of ten votes from the affirmative to the
negative, the Constitution would have been defeated in Massachusetts. What the
consequence would have been we can only imagine; but our imagination calls
forth a picture of confusion and, mayhap, strife. Union might have resulted
from arms, not from peaceful agreement.
And still, there was a readiness to acquiesce in a decision reached
after long and fair discussion.[17] Delegates who had objected
earnestly to the Constitution went back to their constituents to say that the
new system, ratified after free debate, would receive their support. To anyone
knowing anything of the career of "irreconcilables" in modern European history,
the most conspicuous thing in the struggle over the adoption of the American
Constitution is found in this readiness to accept defeat and not to cherish
undying animosities. The readiness of a minority to accept a fair defeat is
necessary for successful democracy and popular government; the right of the
majority to govern, subject to the necessity of a consideration for minority
rights, is no more a part of democracy than is the duty of the minority to
coöperate in the acknowledgment of majority power.
In the Virginia convention there was fervid and declamatory attack upon
the proposed Constitution. Patrick Henry led the attack ably and eloquently.
Richard Henry Lee was not in the convention, but the depth of his opposition to
the new system was known and his influence in the state and in the land at
large was not slight. George Mason was chosen to the convention and ably
supported Henry's oratorical attacks, while James Monroe gave such assistance
as he could. But Madison was also there, and without Madison the federal
Constitution would have stood no chance of surviving. He was aided by John
Marshall, then a young man of thirty-two, by George Nicholas, and by Randolph,
who, as we have seen, had finally decided to advocate adoption. Madison bore
the brunt of the fight. Quietly, almost placidly, meeting the assaults of
Henry's waves of oratory with arguments, facts, and logic — in short, in
his own gentle way — he performed feats of forensic skill in one of the
great debates of history.[18]
One subject of dispute — the extent of the treaty-making power
— was particularly important in Virginia and added to the difficulty of
securing ratification; the western part of the state feared that free
navigation of the Mississippi would be surrendered or that some humiliating
agreement with Spain would be entered into.[19] But there were many
other objections to the Constitution. Henry left no stone unturned in his
effort to defeat ratification; his ingenuity was as clever as his oratory was
bold and defiant. The men at Philadelphia, he declared, had no authority to do
more than amend the Confederation, and yet they had proceeded to draw up plans
for a consolidated government: "... What right had they to say, We, the
people? ... Who authorized them to speak the language of, We, the
people, instead of, We, the states? States are the characteristics
and the soul of a confederation. If the states be not the agents of this
compact, it must be one great, consolidated, national government, of the people
of all the states.... Even from that illustrious man who saved us by his valor,
I would have a reason for his conduct...." [20] As the days went by,
ably supported by Mason and a few others, he assaulted — there is no
better word — provision after provision of the new Constitution.
In the course of the debates Madison found it necessary to describe the
nature of the new union. Here, it will be noticed, he had to meet the assertion
that the Constitution provided for a "consolidated government", one of the main
charges of his opponents: "In some respects it is a government of a federal
nature; in others, it is of a consolidated nature.... Thus it is of a
complicated nature; and this complication, I trust, will be found to exclude
the evils of absolute consolidation, as well as of a mere confederacy. If
Virginia was separated from all the states, her power and authority would
extend to all cases: in like manner, were all powers vested in the general
government, it would be a consolidated government; but the powers of the
federal government are enumerated; it can only operate in certain cases; it has
legislative powers on defined and limited objects, beyond which it cannot
extend its jurisdiction." [21] This did not satisfy Henry: "This
government is so new, it wants a name. I wish its other novelties were as
harmless as this." [22] But the sneer was unjustified; even to-day
one might find it difficult to give an untechnical description more
satisfactory than Madison's.[23]
Henry's dislike of the whole document was so intense, if one may justly
gather his opinion from the debates, that one has difficulty in seeing how he
could give his adherence to ratification under any condition; but toward the
end his chief demand was for the adoption of amendments before the acceptance
of the Constitution. Here, however, as in Massachusetts, the convention decided
to ratify the Constitution and to associate with ratification a series of
amendments for adoption after the establishment of the new system. So after
these weeks of strenuous and orderly, but heated, controversy, the Federalists
won by the narrow margin of eleven votes.[24]
In New York, as in Virginia, the advocates of the Constitution met
vigorous opposition — so vigorous and so ably led that for a long time
ratification seemed to be quite impossible. The Clinton faction, led by a
leader who had the confidence of large numbers of the people, were determined
to prevent ratification of the Constitution as it was presented, and they
prosecuted their attack unrelentingly. Taking the name of the Federal
Republicans, they brought to bear all possible forces of persuasion and
influence. In other states men appeared to be chiefly concerned with the danger
to individual liberty; in New York this fear was not absent; appeals could be
made to sentiment as well as to economic interest. But the localists were
playing a dangerous game; New York, as yet not one of the most populous states,
could not safely play a lone hand. There was a considerable sense of
self-sufficiency, a reliance on the state's own strength, but its frontiers
were open to attack; it was not safe, either as a member of a distracted and
incompetent Confederation or standing quite alone, to face with its own feeble
strength a world hungry for power. The Clinton men wanted a union not
sufficiently strong to prevent the state from having its own way in certain
essential particulars. And Clinton himself of course declared, as did men in
other states, that the Constitution in the end would establish a consolidated
government. We find therefore an atmosphere of personal ill feeling, based in
part on animosities, or less vehement feeling, which had been developing for
some time, and based also on a desire for a large degree of economic or
commercial freedom. New York City possessed a magnificent harbor which gave to
the state commercial advantages over its neighbors, and the leaders of the
Clinton group, seeing in prospect a development which the coming decades turned
into achievement, looked with misgivings upon any scheme of government likely
to rob the state of its peculiar strength. "... the constitution called forth
in New York the fiercest resistance that selfish interests could organize."
[25]
John Jay, a mild-tempered man, capable of taking a strong position but
not given to the use of bitter words, writing before the state convention met,
thus placed the facts before the people: "We have unhappily become divided into
parties; and this important subject has been handled with such indiscreet and
offensive acrimony, and with so many little, unhandsome artifices and
misrepresentations, that pernicious heats and animosities have been kindled,
and spread their flames far and wide among us." [26] He did not
charge the Clintonians alone with being the victims of party zeal and acrimony;
he was pleading for sane and reasonable consideration of the Constitution and
for freedom from vindictive strife. New York City and the more immediate
neighborhood favored ratification. The small farmers in general, it appears,
were arrayed against the large landowners.[27] So there was not only
a clash of pecuniary interests but something like class antagonism. The
geographical differences were plain and the feeling was acute — so plain
in fact that it was even rumored that the region in and about New York City
might venture to separate from the rest of the state.[28]
The Letters from the Federal Farmer, written by Richard Henry
Lee, the implacable foe of the Constitution, were circulated freely in New
York. But able defenders of the Constitution were at hand. Robert R. Livingston
and Jay, men of character and influence, strongly advocated ratification. And
one continentalist, peculiarly fitted by temperament and intelligence for
forensic conflict, entered the lists with enthusiasm; Hamilton, now reaching
the height of his intellectual power and filled with zeal for a cause he had
long cherished, saved the union and the Constitution in New York.
In explaining and defending the Constitution, Madison, Hamilton, and Jay
published essays in the New York press. They were signed by the pen-name of
"Publius" and later published under the title of The Federalist. These
essays were probably of service in winning support of the Constitution; but the
extent of that service we naturally cannot measure. For much immediate
practical effect they were perhaps too learned, too free from passion. Not
often are many people converted by plain logic and unadorned presentation of
facts and principles; and doubtless those vehemently detesting the new system
were not convinced. We do know, however, that the essays then published are
among the few great treatises on government ever published by political
philosophers or statesmen. The traditional treatise had been more or less
vague, distant, theoretical, and written not infrequently in a style quite
beyond the grasp of any but the learned, and the specially learned at that. But
The Federalist was not clouded by the mists of needless abstractions or
darkened by a heavy and opaque style. The articles were directed toward one
great question — the worth of the proposed Constitution — and this
fact gave them a certain coherence; but, withal, they were filled with wise
discussions of the principles of government. No one can read them to-day
without admiration for the learning and skill of these young men engaged in one
of the most momentous political struggles in all history. One additional fact
is to be noted: The Federalist probably had more effect after the new
government went into operation than in the days of uncertainty when the fate of
the union seemed to hang in the balance; its learned and logical and yet
concrete interpretation of the Constitution long continued to be influential in
solving the practical problems of law and government.
When the New York convention met, the advocates of ratification faced an
opposition so strongly intrenched, so ably generated, and so capable of
offensive attack, that the task of the constitutionalists must have seemed
well-nigh hopeless. Hamilton himself is authority for the statement that
two-thirds of the elected delegates were hostile. Could the known opposition,
supported by combined interests astutely managed, be overcome by the weapons of
argument and persuasion? Governor Clinton, chosen as the president of the
convention, had not much to say in the discussion upon the floor. The
Anti-Federalists were led by Lansing and Melancthon Smith; the Federalists by
Hamilton, Jay, and Robert R. Livingston, We do not find in the debates
announcement that union was unnecessary or even that the Confederation was
sufficient without modification; but as in other states the Constitution was
subjected to criticism in many details and was held forth as destructive of the
states [29] and the liberties of the people. The opponents of the
proposed system, though continuous in their attacks, came ere long to the point
where they were willing to accept some sort of conditional ratification.
At one stage in the anxious days of debate Hamilton seems almost to have
yielded to despair. Complete and unqualified ratification appeared unlikely, if
not quite impossible. He wrote Madison asking his opinion of a conditional
ratification with "the reservation of a right to recede" in case
amendments were not obtained. "My opinion is," Madison wrote in reply, "that a
reservation of a right to withdraw, if amendments be not decided on under the
form of the Constitution within a certain time, is a conditional
ratification; that it does not make New-York a member of the new Union, and
consequently that she could not be received on that plan." [30] It
was no time to abandon the contest.
Toward the end of the convention, Smith moved that the Constitution
ought to be ratified "upon condition, nevertheless, That until a
convention shall be called and convened for proposing amendments" certain
powers granted to Congress should not be exercised. Lansing moved to postpone
the various propositions before the house in order to take into consideration a
draft of a conditional ratification, with a bill of rights prefixed and with
amendments. Mr. Jones, to whom honor is due, moved that the words "on
condition" in Smith's motion be obliterated, and that the words "in full
confidence" be substituted. This motion was carried. The crisis was passed;
Melancthon Smith himself voted for unconditional ratification, as did Gilbert
Livingston, who had complained bitterly against the menacing specter of the new
government.[31] But the margin of victory was narrow; thirty-one
voted for unconditional ratification, twenty-nine against it. The next day
(July 24) Lansing, not to be overcome, moved to adopt a resolution announcing
the reservation of the right of the state to withdraw within a certain number
of years, unless proposed amendments should previously be submitted to a
general convention. "The motion was negatived" is the brief but sufficient
statement in the records of debate. The final ratification was agreed upon July
26 by a vote of thirty to twenty-seven. Two votes, changed from affirmative to
negative, would have changed the result, and New York would have refused to
accept the Constitution, except under embarrassing conditions and
qualifications. Nine states had ratified the Constitution before Virginia and
New York acted.
It appears to have been the hope of Clinton and his cohorts from the
beginning rather to insist on a new convention and amendments than to advocate
outright the rejection of the Constitution, and, after the vote was taken, the
convention unanimously adopted a circular letter addressed to the governors of
the several states requesting them to secure action by the legislatures in
order that Congress might speedily summon a convention.[32] Madison
declared this letter to be of "a most pestilent tendency"; but it was the only
way to secure New York's acceptance, and it was a cheap price to pay. The
prospect of another convention gave some encouragement to North Carolina and
Rhode Island, both of which still held back.[33] The Virginia
legislature, dominated by Henry, hastened to make application to Congress and
to issue a circular letter to the other states. But the movement for the new
convention failed; the people were doubtless weary of prolonged discussion. In
Connecticut it received no support; Massachusetts thought a second convention
might endanger the union; and the Pennsylvania house announced that it could
not consistently with its duty to the good people of the state, or with its
affection to the citizens of the United States, concur with Virginia in asking
for a convention.[34]
As we have seen, the objections to the Constitution by its opponents
were plentiful. Possibly the most frequent charge was the absence of a bill of
rights. The Federalists endeavored to defend the failure to lay down the
fundamental principles and reservations because the Constitution was a grant of
power, and, in consequence, the new government would have no authority except
what was actually bestowed. This argument, while technically correct, did not
assuage the fears of the opponents; they desired to have some limitations
expressly laid down. The history of the Constitution after adoption is evidence
of the wisdom of these demands.[35]
The single most serious objection, with the possible exception of the
one just mentioned, was the overthrow of the Confederation and the alleged
complete "consolidation" of the union.[36] But there were many
others: the reëligibility of the president and the danger of monarchy; the
vast power of the president, who was neither checked nor assisted by a council;
the treaty-making power of the president and Senate, especially dwelt upon in
Virginia and North Carolina; the power of the Senate and length of the
senatorial term; the authority of Congress over the seat of government; the
power of Congress to regulate the time, place, and manner of electing
representatives, a power which would be used to vex and enslave the people; the
two-year term for representatives; the small number of representatives; the
regulation of commerce; and the absence of provision for jury trial in civil
cases. Even the vice-presidency — though not receiving much attention
— was spoken of as a useless office. Patrick Henry, proclaiming the common
detestation of slavery, but asserting the ruinous consequences of manumission,
held up to view the awful thought that Congress, legislating for the common
defense and general welfare, might call for the emancipation of
slaves.[37]
In the system established by the Constitution, the courts were called
upon to exercise wide authority. Probably few fully appreciated how important a
part they were destined to play; for, as we have seen, on the courts —
state and national — rests much of the obligation of maintaining the
constitutional system. The fear of judicial methods and processes dangerous to
individual liberty was often manifest in the debates; and the provisions of the
sixth, seventh, and eighth amendments, which were adopted after the
ratification of the Constitution, give evidence of this fear and of the need of
restrictions for the protection of individual rights. But of special
significance was the opposition to the broad jurisdiction of the federal
courts, for they, it was alleged, would absorb all judicial authority and would
leave none for the state tribunals, or, at the best, leave them but the puny
role of passing upon trivial local disputes.
There was not much debate on the power of the federal Court to declare a
law of Congress void;[38] the right of the courts to do this could
scarcely alarm those who were filled with fear of congressional tyranny. There
was some objection to the clause making the Constitution, laws, and treaties
the supreme law of the land; but it is probably right to say the objection bore
rather upon the fact or the principle of federal supremacy than upon its
maintenance by courts. The more serious objection, as said above, was directed
to inclusive and widely-extended federal jurisdiction.
On this subject Hamilton's discussion in The Federalist is
especially interesting and impressive. The doctrines which he laid down may
have helped the men, who, after the new government went into effect, marked out
the judicial system. Of chief consequence is his use of fundamental principles
of jurisprudence, particularly those within what the lawyers call the "conflict
of laws". He applied those principles to the new federal system.[39]
Here, he seems to say, is no strange and fantastic novelty, nothing
revolutionary; these fundamental doctrines are well-seasoned and need create no
great perplexity. There are few things more important than the acceptance and
the continuation of the principles of the common law and the principles of
general jurisprudence in our constitutional system.
Quieting the fears of those who saw the state courts relegated to a
condition of insignificance, Hamilton appears to intimate that they might have
more duties rather than less: "... I hold that the state courts will he
divested of no part of their primitive jurisdiction, further than may relate to
an appeal; and I am even of opinion, that in every case in which they were not
expressly excluded by the future acts of the national legislature, they will of
course take cognizance of the causes to which those acts may give birth. This I
infer from the nature of judiciary power, and from the general genius of the
system." [40] This means that the setting up of a system of courts
with their special and limited jurisdiction will not in itself lessen the
previous jurisdiction and authority of other courts; furthermore, as there is a
new lawmaking power, there will be additional laws to be recognized and applied
by the courts already in existence. In Hamilton's statement there is only one
word to which one might take exception; that is "expressly".
The exposition in The Federalist discloses to clear view the
nature of our federal judicial system. State laws are (in accord with
principles of general jurisprudence) recognized and applied in federal courts;
federal laws are recognized and applied in state courts, and the Constitution,
of course, is law in both.[41]
It is of course an interesting and critical question whether the men of
1787-1788 intended to establish a government and a new political system totally
different in essential character from that provided by the Articles of
Confederation. Did they purpose to abandon a union of sovereign states? That
they had no such purpose is often asserted to-day; but the reader of the
contemporary literature will find insurmountable difficulty in reaching this
conclusion. He will find abundant assertion by friends, and even more by
enemies of the new order, that a national system was being founded; the
advocates of ratification felt called upon to stress the fact that the states
were not being entirely robbed of powers and utterly doomed to
destruction. It is sometimes said, and has been said by historians, that the
people would have firmly refused to adopt the Constitution had they not
supposed that a state could at any time withdraw. Such an assertion needs
evidence to support it. Of the intention of the framers to establish a national
government and to abandon a Confederation of sovereign states there is no
possibility of doubt. Madison's statement to Jefferson (October 24, 1787) is
fully supported by all the evidence: "It appeared to be the sincere and
unanimous wish of the Convention to cherish and preserve the Union of the
States.... It was generally agreed that the objects of the Union could not be
secured by any system founded on the principle of a confederation of Sovereign
States." The people of that generation had been making constitutions; they knew
what the very word involved. The prolonged discussion in the conventions and in
the controversial literature of 1787-1788 appears all to have been based on the
belief that the people were engaged in a most solemn undertaking, and that its
consequences could affect their happiness and welfare for generations. They
were certainly well warned: "It is to be observed", said Richard Henry Lee in
the Letters from the Federal Farmer, "that when the people shall adopt
the proposed constitution it will be their last and supreme act; it will be
adopted not by the people of New Hampshire, Massachusetts, &c., but by the
people of the United States...." [42]
The argument for state sovereignty will be discussed on later pages, but
it may be said here that the argument rests upon a notion of sovereignty
different from that commonly if not universally held by the men of 1788. The
position so elaborately portrayed and defended by Calhoun and his disciples was
not based essentially on concrete evidence of the purposes of the
people, certainly not on direct testimony. The state sovereignty argument
in general does not rest on direct testimony expressed contemporaneously with
the adoption of the Constitution to the effect that the people believed they
were establishing a system and intended to establish a system from which any
state, when it so desired, might withdraw.[43]
The demand for a second convention before the adoption of the
Constitution is in itself an evidence (perhaps not conclusive, but evidence
nevertheless) of a belief by the opponents of the proposed system that the
states were irretrievably bound and could not withdraw at any time when they
found the new yoke oppressive. It is significant, too, that there was no
successful effort, like that made when the Articles of Confederation were under
discussion, to announce in the Constitution the retention of sovereignty by the
states. If anyone knew the character of the new document, it was Oliver
Ellsworth; he had struggled valiantly in the Convention to save the identity of
the states and to keep them from being submerged in the national system; he was
an able lawyer and later a chief justice of the United States. Advocating the
adoption of the Constitution, he pointed to the authority of the judiciary to
declare void any law unauthorized by the Constitution, whether passed by the
national legislature or by the states. "Still, however, if the United States
and the individual states will quarrel, if they want to fight, they may do it,
and no frame of government can possibly prevent it. It is sufficient for this
Constitution, that, so far from laying them under a necessity of contending, it
provides every reasonable check against it. But perhaps, at some time or other,
there will be a contest; the states may rise against the general government. If
this do take place, if all the states combine, if all oppose, the whole will
not eat up the members, but the measure which is opposed to the sense of the
people will prove abortive. In republics, it is a fundamental principle that
the majority govern, and that the minority comply with the general voice. How
contrary, then, to republican principles, how humiliating, is our present
situation! A single state can rise up, and put a veto upon the most
important public measures.... Hence we see how necessary for the Union is a
coercive principle. No man pretends the contrary: we all see and feel this
necessity. The only question is, Shall it be a coercion of law, or a coercion
of arms? There is no other possible alternative. Where will those who oppose a
coercion of law come out? Where will they end? A necessary consequence of their
principles is a war of the states one against the other. I am for a coercion by
law — that coercion which acts only upon delinquent individuals. This
Constitution does not attempt to coerce sovereign bodies, states, in their
political capacity. No coercion is applicable to such bodies, but that of an
armed force.... But this legal coercion singles out the guilty individual, and
punishes him for breaking the laws of the Union."[44] No one
searching for belief among the fathers that any state might legally withdraw
from the union and that its citizens might legally refuse to obey the laws of
the union can obtain from these words much satisfaction.
At a later day, fifty years or so after the adoption of the
Constitution, the advocates of the right of the states to secede from the union
cited certain resolutions and declarations made by the state ratifying
conventions. But these assertions, depended on to indicate the right of a state
at any time to withdraw, were in reality the commonplaces of the compact
philosophy, entirely out of harmony with the idea that a state of the union, as
if it were an international body, acting upon its sovereign authority, could
withdraw from a treaty relationship. They announce the fundamental principles
of free government. Resolutions of Virginia, New York, and Rhode Island are
those commonly cited.
In ratifying the Constitution the Virginia convention used the following
words: "We the Delegates of the People of Virginia ... Do in the name and in
behalf of the People of Virginia declare and make known that the powers granted
under the Constitution being derived from the People of the United States may
be resumed by them whensoever the same shall be perverted to their injury or
oppression and that every power not granted thereby remains with them and at
their will: that therefore no right of any denomination can be cancelled
abridged restrained or modified by the Congress by the Senate or House of
Representatives acting in any Capacity by the President or any Department or
Officer of the United States except in those instances in which power is given
by the Constitution for those purposes: & that among other essential rights
the liberty of Conscience and of the Press cannot be cancelled abridged
restrained or modified by any authority of the United States."
[45]
New York and Rhode Island adopted resolutions which were substantially
alike. The first New York declaration is: "That all Power is originally vested
in and consequently derived from the People, and that Government is instituted
by them for their common Interest Protection and Security." The third
declaration reads: "That the Powers of Government may be reassumed by the
People, whensoever it shall become necessary to their Happiness; that every
Power, Jurisdiction and right, which is not by the said Constitution clearly
delegated to the Congress of the United States, or the departments of the
Government thereof, remains to the People of the several States, or to their
respective State Governments to whom they may have granted the same...."
[46] After these expressions appear statements concerning freedom of
religion, the right to keep and bear arms, and similar pronouncements. In this
respect the Rhode Island resolutions were of a similar character.
The Rhode Island convention, adopting the Constitution in 1790, declared
"That all power is naturally vested in, and consequently derived from the
People.... That the powers of government may be reassumed by the people,
whensoever it shall become necessary to their happiness...." [47]
All this is orthodox enough in the philosophy of social compact. But perhaps of
more interest is the fact that, after making sundry statements concerning the
guaranties and principles of safe government, the convention enjoined the
senators and representatives who were to be elected to Congress to prepare
certain amendments. The first of these is as follows: "The United States shall
guarantee to each State its sovereignty, freedom and independence, and every
power, jurisdiction and right, which is not by this constitution expressly
delegated to the United States." [48] These words are almost an
exact copy of the second article of the Articles of Confederation. Did Rhode
Island suppose she was entering into a new confederation of sovereignties?
Washington had at an earlier day expressed the hope that the scales were "ready
to drop from the eyes, and the infatuation to be removed from the heart" of the
people of that state.[49] Evidently some of the scales were still in
place. But the nearest approach — and it was rather a rejection than an
approach — to the resolution recommended by Rhode Island guaranteeing
sovereignty, was the important principle announced in what became the tenth
amendment: "The powers not granted to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively or
to the people." This statement was intended to safeguard the rights of the
component parts of an integral union.
It is sometimes said that, if the people of the whole country in primary
meetings or by individual votes had had the opportunity of passing upon the
Constitution, it would have been rejected.[50] But of course no one
can positively know whether such assertions are true or not. There was strong
opposition. It was most intense in the back-country, in those sections where
people felt less keenly than in the seashore towns the need of national
organization and government; opposition was not unnatural among persons living
the free life of the frontier. One cannot, however, go studiously through the
debates without seeing the impracticability, or at least the difficulty, of
properly discussing such matters as were involved by any other method than that
actually followed. The proposed system was attacked and defended, caricatured
and lauded in the newspapers; pamphlets were issued and were widely
distributed; learned treatises were written and read; hand-to-hand debates
tested the strength of argument. Had Henry's passionate oratory been addressed
to crowds of listeners at the county courthouses, his eloquence might have won
a sweeping victory; but in the quiet of the assembly hall it proved no match
for Madison's relentless and unemotional logic. If the New York voters had been
subjected only to the cleverness of Clinton and the skillful arguments of
Melancthon Smith, they would perhaps have failed to read The Federalist;
but the arguments of Hamilton were too strong for the opponents of ratification
under conditions in which arguments counted.
The debates in Massachusetts, a critical state, were, as already
suggested, impressive; fears and forebodings and prejudices were met frankly;
over 350 delegates from a population of about half a million discussed and
debated for a month the alleged dangers and the probable value of the proposed
system. And this sort of thing, we are sometimes told, was a conspiracy to rob
the people of their rights! [51] The action of New Hampshire is
especially interesting. When the convention assembled, a majority, including
many members from the remote parts of the state, opposed the Constitution. Some
of the delegates were instructed by their towns to vote against ratification.
But, as has already been noticed, the convention adjourned; there was further
discussion and time for consideration, and when it met again the Constitution
was adopted by a vote of fifty-seven to forty-seven.[52]
Just how many people voted for the delegates to the state conventions of
ratification cannot be told. It seems all but certain that only a small portion
voted and only a fraction of those qualified to vote. The residents of the more
thickly-populated regions could and probably did vote in greater proportions
than those in the sparsely-settled regions. This may have given the towns or
the commercial areas an advantage. The unavoidable fact is that the men of
those days did not eagerly participate in elections when they had the right and
the opportunity. In Philadelphia only about five per cent. of the population
voted for delegates,[53] though one would gather from the papers and
pamphlets that there was much excitement. In Boston where 2700 were entitled to
vote, only 760 electors participated in the election of delegates to the
ratifying convention, about one-half as many as voted in the next gubernatorial
election.[54]
Several conclusions seem reasonably well-founded: the majority of the
people, even when the issue was important and had been much discussed, were
apathetic; the "better classes", the "well-born", had had influence and they
long continued to exercise it. The new government was set up by men who were
sufficiently interested to take the trouble to vote. The democracy of the
nineteenth century had not yet arrived.
It is quite impossible to classify accurately the opponents or the
advocates of the Constitution. Economic influences of course played their part.
If generalizations must be indulged in, it is probably correct to say that on
the whole the well-to-do — especially the commercial elements of the
population — favored ratification; the sections remote from the centers of
trade were inclined to be opposed to it. But even this classification needs
modification. Not all of the back-country — the region naturally less
affected by government and in some instances bearing a traditional grudge
against domination by the eastern section — was opposed to ratification;
and by no means were all of the prosperous planters or men of property
advocates of the new system. No attempt to draw lines sharply dividing the
people into classes can be successful. Geographical and sectional conditions
were of considerable influence in determining the attitudes of men; some
differences of opinion were apparently due to special economic interests. If
one thinks of the struggle in Virginia, where Washington and Mason represented
opposite sides, the difficulty of classification is plain. Richard Henry Lee,
after referring to debtors and also to aristocrats desirous of power, said:
"these two parties are really insignificant compared with the solid, free, and
independent part of the community." [55] Though the areas favorable
to ratification, in a number of instances, lay along routes of trade, it is
quite possible, of course, that this attitude toward the Constitution was due,
at least in a measure, to the fact that the people of those areas could be
reached by information emanating from the east, and were not solely guided by
economic influences or geographical environment.[56]
Certain it is that the fear lest the states be submerged, lest personal
liberty be endangered, lest one section or group of states should tyrannize
over another (in other words, sectional jealousy that was only partly due to
any particular sectional economic interests) embodied the great list of
objections to the Constitution. The first amendment to the Constitution
provided for religious liberty; not one amendment proposed to the Constitution
struck at the prohibition of paper money[57] or at the provision
against the impairment of the obligation of contracts.
The adoption of the Constitution was a great event in history; the
representatives of a numerous people living in various communities, along a
coast a thousand miles and more in length, met in their respective gatherings
and there, generally without bitter partisan strife and totally without uproar,
debated the nature of the government which they proposed to establish over half
a continent.[58]
The Constitution was ratified by the states in the following order:
Delaware, December 7, 1787. Unanimous.
Pennsylvania, December 12, 1787. 46-23.
New Jersey, December 18, 1787. Unanimous.
Georgia, January 2, 1788. Unanimous.
Connecticut, January 9, 1788. 128-40.
Massachusetts, February 6, 1788. 187-168.
Maryland, April 26, 1788. 63-11.
South Carolina, May 23, 1788. 149-73.
New Hampshire, June 21, 1788. 57-47.
Virginia, June 25, 1788. 89-79 (89-78).
New York, July 26, 1788. 30-27.
North Carolina, November 21, 1789. August 2, 1788, refused by a vote of
184-83 to ratify until a bill of rights and other amendments were put forth.
Ratified November 21, 1789, by a vote of 195-77.
Rhode Island, May 29, 1790. 34-32.
Vermont, whose entry into the union was contemplated by the Federal
Convention, adopted the Constitution January 10, 1791, and was admitted March
4.
[1] Members from eleven states were present, "and from
Maryland Mr Ross". Rhode Island was not represented. Documentary
History of the Constitution, II, p. 22.
[2] October 30, 1787. See Elliot, Debates (1866 ed),
I, pp. 505-506.
[3] See Elliot, Debates, I, p. 493.
[4] The letters of Yates and Lansing, of Gerry, Mason, and
Randolph are in Elliot, Debates, I. They give exceedingly good
indication of the nature and extent of objections to the Constitution. This
volume also contains Martin's "Genuine Information". See also Farrand,
Records, III, especially p. 151 ff; p. 172 ff.
[5] See Elliot, Debates, I, p. 490.
[6] Richard Henry Lee's powerful opposition to the
Constitution, expressed in his Observation ... of the system of government,
proposed by the late Convention.... In ... Letters from the Federal Farmer to
the Republican, which was one of the most popular and widely-distributed
pamphlets of the day, called forth the following stinging rebuke from Oliver
Ellsworth in his "Letters of a Landholder": "The factious spirit of R. H. L.,
his implacable hatred to General Washington, his well-known intrigues against
him in the late war ... is so recent in your minds it is not necessary to
repeat them. He is supposed to be the author of most of the scurrility poured
out in the New-York papers against the constitution." See Essays on the
Constitution (P. L. Ford, ed.), p. 161. Ellsworth hit hard and did not
belabor his opponents — Martin, for example — with gloves.
[7] The remarks of a Mr. Smith in the Massachusetts
convention are worth quoting at length, as showing how one plain man could look
at the problem. We must be content with only a few of his sentences: "Mr.
President, I am a plain man, and get my living by the plough. I am not used to
speak in public, but I beg your leave to say a few words to my brother
ploughjoggers in this house.... I had been a member of the Convention to form
our own state constitution, and had learnt something of the checks and balances
of power, and I found them all here. I did not go to any lawyer, to ask his
opinion; we have no lawyer in our town, and we do well enough without. I formed
my own opinion, and was pleased with this Constitution.... But I don't think
the worse of the Constitution because lawyers, and men of learning, and moneyed
men, are fond of it. I don't suspect that they want to get into Congress and
abuse their power.... I don't know why our constituents have not a good right
to be as jealous of us as we seem to be of the Congress; and I think those
gentlemen, who are so very suspicious that as soon as a man gets into power he
turns rogue, had better look at home." Elliot, Debates (1863 ed.), II,
pp. 102-103. One may make a shrewd guess to the effect that this plowman's
direct appeal won as many votes as did many more labored addresses; men such as
Mr. Smith were able to found and perpetuate free government.
[8] Ibid., II, p. 436. Italics of the original
omitted.
[9] Ibid., II, p. 443. Italics of the original
omitted.
[10] Ibid., II, p. 456. "The United Netherlands are,
indeed, an assemblage of societies; but this assemblage constitutes no new one,
and therefore it does not correspond with the full definition of a confederate
republic." Ibid., II, p. 422. Italics of the original omitted.
[11] Ibid., II, p. 461.
[12] J. B. McMaster and F. D. Stone, Pennsylvania and the
Federal Constitution, p. 424.
[13] Philadelphia broke forth into rejoicing. At a dinner
celebrating ratification thirteen toasts were proposed and drunk. Among them
were the following: "The People of the United States." "May order and
justice be the pillars of the American Temple of Liberty." "The virtuous
minority of Rhode Island." Noteworthy, too, as indicative of a belief in the
mission of America to enlighten the world and to bring freedom to Europe were
the toasts: "May the flame, kindled on the Altar of Liberty in America, lead
the nations of the world to a knowledge of their rights and to the means of
recovering them." "May America diffuse over Europe a greater portion of
political light than she has borrowed from her." "Peace and free governments to
all the nations in the world." Ibid., pp. 428-429
[14] Ibid., p. 558 ff.
[15] See O. G. Libby, The Geographical Distribution of the
Vote of the Thirteen States on the Federal Constitution, 1787-8
(Bulletin of the University of Wisconsin, Economics, Political Science,
and History Series, I, no. 1), p. 12. Libby says the eastern section was 73 per
cent. for ratification and 27 per cent. against; the middle section was 14 per
cent. for and 86 per cent. against; the western section was 42 per cent. for
and 58 per cent. against.
[16] See letter from Washington to Charles Carter, December
14, 1787, in Washington, Writings (W. C. Ford, ed.), XI, pp. 210-211
note. See also, George Bancroft, History of the United States (last
revision), VI, pp. 401, 380. Earlier than the date of the letter to Carter,
Washington's private letters show he had advocated ratification, and, if it
seemed necessary, the submission of amendments after ratification. See
especially, Writings, XI, p. 185. For the Massachusetts convention, see
S. B. Harding, The Contest Over the Ratification of the Federal Constitution
in the State of Massachusetts (Harvard Historical Studies, II).
[17] See, for example, Elliot, Debates, II, pp.
182-183.
[18] As E. P. Smith properly says, "Now it is not easy for us
to make the comparison fairly." "The Movement Towards a Second Constitutional
Convention in 1788," Essays in the Constitutional History of the United
States (J. F. Jameson; ed.), p. 83. We irresistibly side with Madison and
see the telling quality of his arguments. Even acknowledging the disadvantage
arising from the passing of a century and more, we need not deny ourselves the
pleasure of admiring the quality of Madison's skill. Henry was doubtless a very
great orator, one of the most commanding in a century of great orators among
the English-speaking peoples; his prestige was large, his manner often, as is
the wont with orators of the Chatham type, intimidating; but Madjson won the
victory.
[19] George Nicholas referred to the tendency of the
opposition to harp upon this matter: "Gentlemen recurred to their favorite
business again — their scuffle for Kentucky votes." Elliot, Debates
(1863 ed.), III, p. 502. For some time past Jay had been engaged on behalf of
the Confederation in negotiations with the Spanish minister.
[20] Ibid., III, pp. 22-23; see also, pp. 156, 171,
395. George Mason declared: "... it is a national government, and no longer a
Confederation.... The assumption of this power of laying direct taxes does, of
itself, entirely change the confederation of the states into one consolidated
government." Ibid., III, p. 29. In the Philadelphia convention he had
not taken a stand, especially in the earlier days, in opposition to the
establishment of a national system. See especially his remarks on May 30, June
7, June 20, July 23.
[21] Elliot, Debates, III, pp. 94-95. The whole of
Madison's defense against the charge of consolidation is important. Cf.
Wilson's statement referred to on a previous page.
[22] Ibid., III, p. 160.
[23] He discussed the same subject in The Federalist,
no. XXXIX.
[24] June 25, 1788. The vote is given in the Debates
as eighty-nine to seventy-nine, but the count of ayes and noes is eighty-nine
to seventy-eight. See Elliot, Debates, III, pp. 654-655. Henry at one
time treated with eloquent contempt the proposals for subsequent amendments.
Such proposals, he declared, were made "only to lull our apprehensions.... Will
gentlemen tell me that they are in earnest about these amendments? I am
convinced they mean nothing serious." Ibid., III, pp. 649-650. Libby
points out that the eastern section of Virginia was 80 per cent. favorable to
adoption. The middle region, the region of small farmers, was 74 per cent.
against adoption. The third district, including the Shenandoah valley, chiefly
Scotch-Irish and German in population, was 97 per cent. for adoption. The
Kentucky district was 90 per cent. against adoption. This was the region
fearing the closure of the Mississippi, and it was also the region of the
"Spanish conspiracy". Libby, op. cit., pp. 34-35.
[25] George Bancroft, History of the United States
(last revision), VI, p. 454. We may question, however, whether one side was
more influenced by its interests than the other.
[26] Elliot, Debates, I, p. 500.
[27] "We must conclude, then, that although the better part
of Antifederal New York was indeed infested with great estates which
monopolized the best lands as late as 1788, the opposition to the Constitution
came from the small farmer, generally a tenant on a large manor or patent, not
from the manor lord or proprietor." E. W. Spaulding, New York in the
Critical Period 1783-1781), p. 83. Cf. Libby, op. cit., p. 26.
[28] Ibid., p. 19; Bancroft, History of the United
States (last revision), VI, p. 455.
[29] Melancthon Smith said: "He was pleased that, thus early
in debate, the honorable gentleman [Livingston?] had himself shown that the
intent of the Constitution was not a confederacy, but a reduction of all the
states into a consolidated government." Elliot, Debates, II, p. 224.
[30] Hamilton, Works (J. C. Hamilton, ed.), I. pp.
464-465; see also, A. C. McLaughlin, The Confederation and the
Constitution, pp. 310-311.
[31] "What will be their [the Senate's] situation in a
federal town? Hallowed ground! Nothing so unclean as state laws to enter there,
surrounded, as they will be, by an impenetrable wall of adamant and gold, the
wealth of the whole country flowing into it." At this someone asked what wall
was meant and Livingston answered, "A wall of gold — of adamant, which
will flow in from all parts of the continent" — a reply which caused "a
great laugh in the house." Elliot, Debates, II, p. 287.
[32] Elliot, Debates, II, pp. 413-414.
[33] Space does not allow extended discussion of the debates
in North Carolina or Rhode Island. Both states did not ratify until after the
Constitution had gone into operation. See L. I. Trenholme, The Ratification
of the Federal Constitution in North Carolina, and F. G. Bates, Rhode
Island and the Formation of the Union, chs. V-VI.
[34] Smith, "The Movement Towards a Second Constitutional
Convention in 1788," loc. cit., pp. 101-103, 109-110.
[35] The Federalist, no. LXXXIV, argues there are in
the Constitution certain definite restrictions, e.g., provision for habeas
corpus, provision against bills of attainder, etc. But such an assertion
militates against the succeeding theoretical argument. If there were need of
some restrictions to protect liberty, why not of others? "Here," says the
writer, "in strictness, the people surrender nothing; and as they retain every
thing, they have no need of particular reservations.... I go further, and
affirm, that bills of rights, in the sense and to the extent they are contended
for, are not only unnecessary, in the proposed constitution, but would even be
dangerous. — They would contain various exceptions to powers not granted;
and on this very account, would afford a colourable pretext to claim more than
were granted." Wilson's argument already referred to is of like character.
[36] In speaking of this objection, Rufus King in the
Massachusetts convention said: "The introduction to this Constitution is in
these words: 'We, the people,' &c. The language of the Confederation
is, 'We, the states,' &c. The latter is a mere federal government of
states." Elliot, Debates, II, p. 55. Nason said: "Let us, sir, begin
with this Constitution, and see what it is. And first, 'We, the people of the
United States, do,' &c. If this, sir, does not go to an annihilation of the
state governments, and to a perfect consolidation of the whole Union, I do not
know what does.... How, then, can we vote for this Constitution, that destroys
that sovereignty?" Ibid., II, p. 134.
[37] Warren quite properly points out that a "fair survey of
the situation will satisfy one that the Antifederalist party had its share of
'men distinguished alike for their integrity and ability'." He quotes a letter
written by Madison from New York, October 30, 1787: " 'I am truly sorry to find
so many respectable names on your list of adversaries to the Federal
Constitution. The diversity of opinion on so interesting a subject among men of
equal integrity and discernment is at once a melancholy proof of the
fallibility of the human judgment and of the imperfect progress yet made in the
science of government.'" Warren, The Making of the Constitution, pp.
751-752.
[38] Hamilton ably discussed this in no. LXXVIII of The
Federalist. James Iredell discussed the general principles of judicial
review most illuminatingly in 1787. See G. J. McRee, Life and Correspondence
of James Iredell, II, p. 172 ff.
[39] Marshall made a similar statement in the Virginia
convention. See Elliot, Debates, III, p. 556. Notice Mason's attack upon
article III of the Constitution. Ibid., p. 551. Note Wilson's
description of the judiciary. Ibid., II, p. 486 ff.
[40] In no. XXXII of The Federalist Hamilton lays down
general principles which he believes applicable to the legislative authority of
the new government. Especial attention is paid to the question whether Congress
will necessarily have exclusive authority over fields of legislation
granted to it by the Constitution. The line of thought he proposes in this
number is followed as a basis of the learned discussion of the judicial power,
which he treats in no. LXXXII.
[41] It. is unnecessary to point out here the instances in
which the federal courts have exclusive jurisdiction. The general
principle is as stated in the text. "The laws of the United States are laws
in the several States, and just as much binding on the citizens and courts
thereof as the State laws are. The United States is not a foreign sovereignty
as regards the several States, but is a concurrent, and, within its
jurisdiction, paramount sovereignty. Every citizen of a State is a subject of
two distinct sovereignties, having concurrent jurisdiction in the State, —
concurrent as to place and persons, though distinct as to subject-matter. Legal
or equitable rights, acquired under either system of laws, may be enforced in
any court of either sovereignty competent to hear and determine such kind of
rights and not restrained by its constitution in the exercise of such
jurisdiction. Thus, a legal or equitable right acquired under State laws, may
be prosecuted in the State courts, and also, if the parties reside in different
States, in the Federal courts." Claflin v. Houseman, 93 U. S. 130, 136
(1876). For a plain announcement that rights arising under congressional acts
may be enforced in state courts, see Second Employers' Liability Cases, 223 U.
S. 1, 55-59 (1912).
[42] See Pamphlets on the Constitution (P. L. Ford,
ed.), p. 311. "The 'Letters of the Federal Farmer' was one of the most popular
of arguments against the new government, 'four editions (and several thousands)
of the pamphlet ... being in a few months printed and sold in the several
states' ". Note in Ibid., p. 277. There were so many declarations that
the new system did not maintain the principle of the Confederation that
references are hardly necessary, but see Gerry's statement as another example.
Farrand, Records, III, pp. 128-129. A letter of "Cato" (George Clinton),
printed in The New York Journal, represented the strong opposition to
the Constitution in New York: "what have they done? ... This Convention have
exceeded the authority given to them, and have transmitted to Congress a new
political fabric, essentially and fundamentally distinct and different from it,
in which the different states do not retain separately their sovereignty and
independency, united by a confederate league — but one entire sovereignty,
a consolidation of them into one government...." See Essays on the
Constitution (P. L. Ford, ed.), p. 253. Cf. a letter of Roger Sherman,
printed in The New Haven Gazette, in which he pointed out that each
state retains "its sovereignty in what concerns its own internal
government...." Essays on the Constitution, p. 238.
[43] The ablest and most elaborate exposition of historical
evidence in favor of state sovereignty is in A. H. Stephens, A
Constitutional View of the Late War Between the States, I. There is no
space here to examine his treatment, but it is fair to say that he
conspicuously stresses certain phrases or words from which the
inferences may be drawn that the states retained complete sovereignty
and the right to secede.
[44] Elliot, Debates, II, pp. 196-197. This statement
of Ellsworth should be studied in connection with the question in 1860-1861
whether the states could be coerced. He here states clearly that individuals in
states can be forced to obey national law.
[45] Documentary History of the Constitution, II, p.
145.
[46] Ibid., II, pp. 190-191. It is specially singular
that New York should be mentioned as a state reserving the power to withdraw
from the union, for in the ratifying convention, as we have seen, a proposal to
retain that power was voted down. Is it possible to believe that, when the
great question had been thus settled, the defenders of the Constitution in New
York would have quietly accepted a resolution declaring the right to secede?
For Rhode Island, see Ibid., p. 310 ff. The resolutions are more like
bills of rights than anything else. The Rhode Island resolutions, for example,
begin with the declaration "That there are certain natural rights, of which men
when they form a social compact, cannot deprive or divest their posterity...."
[47] Only such portions of the resolutions of Virginia, New
York, and Rhode Island as might be conceived to be assertions of the right to
secede are given here. They in reality contain the principles of the compact
philosophy — government has derived and not indigenous authority. Some of
these doctrines are discussed in A. C. McLaughlin,, The Foundations of
American Constitutionalism and The Courts, the Constitution and
Parties.
[48] Documentary History of the Constitution, II, p.
316.
[49] Washington, Writings (W. C. Ford, ed.), XI, p.
287. Italics of original omitted.
[50] Libby says, "... there is sufficient proof of a general
correspondence between the sentiment of the constituency and the vote of the
delegate at the state convention to warrant the conclusion, that the votes of
these representatives registered the public sentiment in each state on the
question of ratifying the Federal Constitution." Libby, op. cit., p. 70.
Hildreth questions whether "upon a fair canvass," a majority of the people,
even in the ratifying states, were in favor of the Constitution. He appears to
rely chiefly on the dissent by the minority of the Pennsylvania convention.
The History of the United States (revised ed.), second series, IV, pp.
28-29. See also, Smith, "The Movement Towards a Second Constitutional
Convention in 1788," loc. cit., p. 111.
[51] In Pennsylvania the opponents of adoption continued in
an ill humor for some time. The region in which the "whisky rebellion"
afterwards occurred (1794) was especially hostile to the new system. In
Pennsylvania the suffrage was widely distributed and, though the adoption of
the Constitution was accomplished quickly, perhaps hurriedly, the people had
every chance that a public press afforded.
[52] See especially, Libby, op. cit., pp. 70-75, with
quotations from newspapers; J. B. Walker, A History of the New Hampshire
Convention.
[53] C. A. Beard, An Economic Interpretation of the
Constitution, pp. 246-247. For New York, see Spaulding, op. cit., p.
230.
[54] Beard, op. cit., p. 244. Voting in the early days
has been painstakingly presented by J. F. Jameson, "Did the Fathers Vote?"
New England Magazine, new series, I, p. 484 ff. See also C. O. Paullin,
"The First Elections Under the Constitution," The Iowa Journal of History
and Politics, II, p. 3.
[55] Quoted in Warren, The Making of the Constitution,
p. 747.
[56] Warren, after speaking of the natural hesitation of men
of the back-country to grant to a new government extensive powers, and of the
fact that they were necessarily ignorant of the legislation of other states
which had produced political evils, says, "And in addition to all these
considerations, a division between the Western and Eastern portions of the
States, in 1787, represented, to some extent, a division between the less
well-informed and the better informed, rather than a division between the poor
and the well-to-do." Ibid., pp. 749-750.
[57] There must have been a good deal of opposition on this
ground, though it did not come prominently to the fore. Madison, writing to
Jefferson, October 17, 1788, declared that the articles relating to treaties,
to paper money, and to contracts created more enemies than all the errors in
the system positive and negative together. Henry announced in the Virginia
convention his detestation of paper money. Elliot, Debates, III, p. 156.
He protested, however, against undue infringement upon state competence: "If we
cannot be trusted with the private contracts of the citizens, we must be
depraved indeed." Ibid.
[58] To lament, as some appear to do, that the Constitution
was not adopted by a method which might perhaps be suitable at the present day,
is to lose sight of the momentous character of the undertaking which must be
viewed with an appreciation of the background of preceding centuries. Jefferson
wrote, March 18, 1789, "The example of changing a constitution by assembling
the wise men of the State, instead of assembling armies, will be worth as much
to the world as the former examples we had given them." Jefferson, Works
(federal ed.), V, pp. 469-470.
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