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A Constitutional History of the United States
Chapter XV - The Adoption of the Constitution
by McLaughlin, Andrew C.

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 co÷perative 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 co÷perate 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 reŰligibility 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.


Terms Defined

Referenced Works