This is the fourth of twenty-five weekly articles in The Tennessee Star's Constitution Series. Students in grades 8 through 12 can sign up here to participate in The Tennessee Star's Constitution Bee, which will be held on September 23.
When Benjamin Franklin emerged from the Constitutional Convention in Philadelphia on September 17, 1787 and told Mrs. Powel the delegates had given Americans "a republic, if you can keep it," he was anticipating that at least nine of the thirteen states who were joined together under the Articles of Federation would eventually ratify the Constitution.A map of the thirteen states that comprised the Confederation of the United States of America during its short existence between 1787 and 1789 . (click to see the whole picture)
Franklin was right, of course, but it would take three long years before all thirteen states were in the fold of the new republic.
The delegates to the Constitutional Convention believed in the concept of the sovereignty of the people, so they made sure that the new republic would not be formally organized until two-thirds of the states–nine out of thirteen–held conventions to ratify the Constitution and their participation in the new republic.
Until then, the United States of America, as a country, existed, but under the weak terms of the Articles of Confederation.
Once nine states ratified the Constitution, that old form of government would dissolve, and the remaining four states would be left to either fend for themselves as independent sovereign "country-states," a rather impractical, though possible, proposition.
This was a very intelligent way to frame the issue of ratification, and it avoided the weakness of the ratification process of the Articles of Confederation. The Continental Congress put that document together in November 1777, and while it also required ratification, it did not go into effect until ALL THIRTEEN states ratified it. That process took until 1781, and was one of the reasons the document had to be drafted providing so few powers to the national government.
The first problem for the delegates to the Constitutional Convention was to determine how to deal with the Confederation Congress organized under the Articles that was convening at that time in New York City. The Confederation Congress was "unicameral," that is, it had only one elected body, as opposed to the "bicameral" Constitution, which proposed two elected bodies, the Senate, which represented the States, and the House, which represented the people. The Confederation Congress also had executive powers, limited as they were, and legislative powers, unlike the Constitution's Congress, which had primarily legislative powers. (The new Senate, however, had executive power to confirm Presidential appointments, and judicial power as well to try impeachments.)
Each session of the Confederation Congress lasted for only a year, and the 8th such session was drawing to a close when the Constitution was signed on September 17, 1787.
Remember, the new Constitution would, in effect, do away with that body, so you can see why its members might oppose the new Constitution.
On the other hand, several delegates to the Constitutional Convention, including James Madison, were also members of the Congress.
"When the Constitution was signed on the 17th of September, the question was, "Shall we take it to Congress?' " Professor Gordon Lloyd wrote:
The Pennsylvania Assembly was nearing the end of its session, and what they wanted to do was to authorize the calling of a ratifying convention. But they had a problem: "Should the Congress of the United States approve this document before they issued a call for elections to a state ratifying convention?"
In the end, the Pennsylvania Assembly "decided to go to Congress" for approval before deciding to hold a ratifying convention in the state.
So on September 19, Madison and several other Constitutional Convention delegates who were also members of the Confederation Congress, rode from Philadelphia to New York City to make their case.William Jackson, the Secretary of the Constitutional Convention, left first for New York City from Philadelphia with the actual parchment document of the Constitution. (click to see the whole picture)
Madison wanted the Confederation Congress to endorse the new Constitution, which he thought would give it the very best chances for quick ratification by the requisite nine states to form a new republic.
During the ratification debates that would follow, Madison and the other Federalists would argue that the new Constitution had to be accepted or rejected as it stood, without any changes or amendments.
But Madison and his colleagues received an icy reception from Virginia's Richard Henry Lee, (first cousin to the grandfather of the famous Confederate Civil War General Robert E. Lee) a prominent member of the Confederation Congress, when they arrived in New York City.The Confederation Congress was meeting in Federal Hall in New York City when James Madison and several other Constitutional Convention delegates who were also members of the Confederation Congress arrived there with the new Constitution document in hand on September 20, 1787. (click to see the whole picture)
Though there was not a possibility that the Confederation Congress would refuse to send the Constitution to the states for ratification, there was a debate about whether it would be sent with that legislative body's approval.
After three days of debate, the Confederation Congress agreed on September 28, 1787 to send the Constitution to each state for ratification, without a recommendation either way. Madison was disappointed, but reasoned that it was an acceptable start. He was still unconvinced of the need for a Bill of Rights.
William Jackson, who had taken the actual Constitution document on parchment with him to the Confederation Congress in New York "made his way back to Pennsylvania with the Constitution on the very day [September 29] that the Pennsylvania Assembly was supposed to adjourn," Lloyd wrote:
The Pennsylvania Constitution provides for quorum requirement of two-thirds of the membership. In practice that means that 46 members must be present. Since a few of the Federalist members were indisposed, a handful of Antifederalists were needed to secure a quorum. Knowing this, they hid in churches and taverns only to be forcefully removed and seated in the Assembly to secure the quorum and the vote needed to authorize the calling of the state ratifying convention.
So the Pennsylvania Assembly called for election of delegates to a state ratifying convention, to be held seven weeks later, starting on November 20.
(The state legislatures of eleven states would soon call for the election of delegates to state ratifying conventions. North Carolina met in December 1787, and called its convention for July 1788. Rhode Island–which had refused to send a delegation to the Constitutional Convention–called for a referendum to be held on March 24, 1788, but would not actually hold its first ratifying convention until 1790.)
By mid October, every state governor had officially received the new Constitution from the old Congress. Soon, each state legislature began deliberating whether–and when and how–to hold a state ratification convention.
The "Anti-Federalists" soon emerged as powerful opponents of the new Constitution. They opposed it because it failed to include a specific protection of individual liberties–A Bill of Rights–and also objected to the way it changed the federal-state relationship. They struck first in the arena of public opinion to register their opposition.
It was likely New York's Governor George Clinton–who had been in office for more than a decade–writing as "Cato"–who penned the first such letter, which was published in the New York Journal in early October, 1787. That opposition was quickly followed by another letter published in the New York Journal written by a New Yorker (either Robert Yates or Melancton Smith), under the pseudonym "Brutus," that same month.
Soon after, in early November, "Letters from a Federal Farmer," were published in both the Poughkeepsie Country Journal (90 miles north of New York City on the Hudson) and the New York Journal.
"The letters, skillfully written, moderate in tone, and thoughtful, were perhaps the most eloquent and persuasive anti-federalist writings," historian Ralph Ketcham wrote in 1986.
"I can consent to no government, which, in my opinion, is not calculated equally to preserve the rights of all orders of men in the community," the Federal Farmer wrote.
"A federal government of some sort is necessary," he conceded. "A constitution is now presented which we may reject, or which we may accept, with or without amendments," he continued.
"We are hardly recovered from a long and distressing war. . . It must however, be admitted, that our [current] federal system is defective, and that some of the states are not well administered," he conceded even further.
"But I do not pay much regard to the reasons given for not bottoming the new constitution on a better bill of rights," the Federal Farmer wrote, hitting at the core problem with proposed new system of government:
There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed–a free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers, which will soon be plainly seen by those who are governed, as well as those who govern; and the latter will know they cannot be unperceived by the former, and without giving a general alarm -
These rights should be the basis of every constitution. (emphasis added)
At the time, Virginia's Richard Henry Lee was thought to be the author, but more recently historians believe it was either New York's Melancton Smith or Elbridge Gerry.
Alexander Hamilton considered "Letters from a Federal Farmer" the most effective presentation of the Anti-Federalist case. Significantly, he never responded to the arguments made by the Federal Farmer in the Federalist Papers. (click to see the whole picture)
George Clinton was a political powerhouse in New York who sided with the Anti-Federalists. He served as Governor from 1777 to 1795,and again from 1801 to 1804, and was twice Vice-President, first under Thomas Jefferson, subsequently under James Madison.(click to see the whole picture)
Virginia and New York were both influential states, critically important because of their geographical location. Should both fail to ratify the Constitution, the new country would be composed of three geographically separated regions–New England, the Middle Atlantic, and the South.
Opposition to the Constitution in those key states for its failure to include a Bill of Rights – we would call them "swing states" today – was a huge warning sign that alarmed Alexander Hamilton, a resident of the New York City and avid reader of the city's newspapers.
An organized media counter-offensive had to be mounted quickly, Hamilton realized, and he set aside to do just that.
Just a few weeks after the publication of the first Anti-Federalist letter, Federalist No. 1, written by under the pseudonym "Publius" by Hamilton, was published on October 27 in three New York City newspapers: the New York Packet, the Daily Advertiser, and the Independent Journal.
"I propose, in a series of papers, to discuss the following interesting particulars," Hamilton wrote in this first "general introduction" article, capitalizing each of the six "particulars" for emphasis:
(1) THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY
(2) THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION
(3) THE NECESSITY OF A GOVERNMENT, AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT
(4) THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT
(5) ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly,
(6) THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY.
One area in which Hamilton differed dramatically from the Anti-Federalists was on the need for a specifically articulated Bill of Rights.
To Hamilton, those rights were implicit within the Constitution, and did not require explicit articulation.
"Both James Madison and Alexander Hamilton expressed grave reservations about Thomas Jefferson's, George Mason's and others insistence that the Constitution be amended by the Bill of Rights. It wasn't because they had little concern with liberty guarantees. Quite to the contrary they were concerned about the loss of liberties," George Mason University Professor of Economics Walter Williams wrote in 2000.
The first supporter of the new Constitution to publicly advance the argument that a Bill of Rights was unnecessary was neither Madison, nor Hamilton. Instead it was James Wilson, who had been a delegate to the Constitutional Convention from Pennsylvania.
"The Pennsylvania State Legislature was in session when the new Constitution was proposed, so the ratification campaign proceeded immediately, and a large public meeting held October 6, 1787, in the State House (Independence Hall) yard to nominate delegates to the next Pennsylvania Legislature became a forum for debate on ratification," The Constitution Society notes.
"Wilson . . was asked to speak to the gathering to explain the proposed Constitution and answer some of the criticisms that had been made of it. His speech was printed in the Pennsylvania Packet on October 10, 1787, and it was soon reprinted throughout the states, receiving more coverage than the more detailed arguments made [later] in The Federalist," the Constitution Society adds.
"In delegating federal powers," Wilson began, "the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved."
"This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence," he continued that October day in 1787:
For instance, the liberty of the press, which has been a copious source of declamation and opposition - what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom?
If, indeed, a power similar to that which has been granted for the regulation of commerce had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. . .
In truth, then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject - nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.
Seven months later, when Federalist No. 84, was published on May 28, 1788 after eight states had ratified the Constitution, one shy of the requisite nine to form the new republic, Hamilton advanced the argument.
Bills of Rights have "no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations," Hamilton wrote:
"WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America."
Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
"I go further, and affirm that bills of rights, in the sense and to the extent in which 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 colorable pretext to claim more than were granted . . . [it] would furnish, to men disposed to usurp, a plausible pretense for claiming that power, " Hamilton concluded.
It was an argument the Anti-Federalists were not buying.
Federalist No. 1 was quickly followed by Federalist No. 2 through No. 5, also published under the pseudonym "Publius," but authored by veteran New York political leader John Jay. He was also the Confederation's Secretary of Foreign Affairs, which made him, in effect, the de facto prime minister of the United States at the time.
When Jay fell ill, Hamilton needed another co-author. He looked around the fellow backers of the Constitution living in New York City at the time and found James Madison, in the city serving as a delegate from Virginia to the Confederation Congress. Hamilton recruited Madison, who readily agreed to join the task.
By July of 1788, a total of 85 Federalist essays had appeared in New York newspapers, all under the pseudonym "Publius." Five were written by Jay, 29 by Madison, and a whopping 51 by Hamilton. Today, these essays are collectively known as The Federalist Papers and are considered to be a masterpiece of political philosophy.Madison (left), Jay (center), and Hamilton (right).(click to see the whole picture)
The 85 Federalist essays were originally published in two volumes, in March and May of 1788. Originally called "The Federalist," they were known as "The Federalist Papers" in the 20th century. Lacking a single individual orchestrating a specific game plan, Anti-Federalists essays were not put into a single volume until late in the 20th Century when historian Herbert Storing compiled and published "The Anti-Federalists Papers," which included some, but not nearly all, of the Anti-Federalist essays from the era. (click to see the whole picture)
Though originally published in New York City, the Federalist Papers were shared far and wide across all thirteen states who were in the process of electing delegates for their state ratification conventions.
While the state legislatures of the two key "swing" states of New York and Virginia did not immediately decide when and how to hold their conventions, several states where popular sentiment supported the Constitution jumped into the fray.
By the end of the first week of November, when the newspaper battle between Publius in support of the Constitution, on the one hand, and Brutus, Cato, and Federal Farmer opposing it without a Bill of Rights, on the other, was fully engaged, Pennsylvania had already elected delegates to the state's ratifying convention to be held later that month.
The Delaware state legislature followed quickly, setting the start date for their state ratifying convention at December 4.
It took Delaware's convention just three days to ratify the Constitution. On December 7, Delaware became the first state in the not-yet formed new American republic. To this day, the state issues license plates for cars that say "The First State."
Pennsylvania, which started two weeks earlier, took a full three weeks to ratify the Constitution, but by December 12, they also had ratified the Constitution. New Jersey, which began on December 11, took just a week to ratify the Constitution, which they did by December 18. Georgia, which began on Christmas Day, December 25 ratified the Constitution on the very last day of 1787.
Among the Anti-Federalist writers continuing to advance their case against the Constitution as 1787 came to a close was a woman from Massachusetts. Mercy Otis Warren wrote an influential pamphlet in early 1788, "Observations on the new Constitution, and on the Federal and State Conventions," under the pseudonym "A Columbian Patriot." Her authorship of the pamphlet would not be discovered until almost one hundred years later.Born to a prominent Massachusetts family, Mercy Otis Warren was sister to the famous pre-Revolutionary pamphleteer James Otis and was married to the Massachusetts Speaker of the House James Warren. (click to see the whole picture)
(Seventeen years later, in 1805, she wrote and published a landmark history of the American Revolution under her own name, "History of the Rise, Progress, and Termination of the American Revolution.")
As 1787 turned to 1788, Connecticut held its ratifying convention in the first week of the New Year. After six days, they ratified the Constitution on January 9, 1788.
Five down, four to go until the formation of a new country.
It had been a very fast start. In the six weeks since the first convention opened in Pennsylvania, five states had convened their conventions and ratified the Constitution.
But things were about to get bumpy, and the trouble would begin in Boston, where another large state, Massachusetts, was ready to begin its ratifying convention.