After the state delegations at the Philadelphia Convention had voted unanimously to endorse the Constitution, it was sent to the Confederal Congress which, after some debate, forwarded it to the states to be considered for ratification. Sensing the significance of America's grand experiment in self-governance, James Madison declared that the battle to ratify the new Constitution "would decide forever the fate of republican government." It was indeed a pivotal moment for the American republic, one that would ultimately set the United States on its course for at least the next two centuries.
Participants in the Debate
The debates over ratification of the Constitution represent the most important and intellectually sophisticated public debates in American history. On the one side, the supporters of the Constitution, or "Federalists," argued that the nation desperately needed a stronger national government to bring order, stability and unity to its efforts to find its way in an increasingly complicated world. Opponents of the Constitution, or "Antifederalists," countered that the governments of the states were strong enough to realize the objectives of each state. Any government that diminished the power of the states, as the new Constitution surely promised to do, would also diminish the ability of each state to meet the needs of its citizens. More dramatically, the Antifederalists argued that the new national government, far removed from the people, would be all to quick to compromise their rights and liberties in the name of establishing order and unity.
A handful of men on each side of the debate became the central figures in an extensive public discussion about the proposed Constitution, publishing a series of widely-published and carefully read articles explaining their positions. James Madison, Alexander Hamilton and John Jay, writing under the pseudonym Publius, wrote dozens of articles supporting the Constitution which are now collectively referred to as The Federalist Papers. Articles written in response by George Mason, Elbridge Gerry and Patrick Henry are, appropriately, known as the Antifederalist Papers. While these writings are the best known and most widely read today, there were hundreds, even thousands of others who joined in the debates through public argument or speech-making and by writing articles, letters and pamphlets.
The arguments in favor of the Constitution are well known. The supporters of ratification were troubled by the lack of energy and authority in the national government under the Articles of Confederation. They saw a stronger national government as the answer to a host of persistent problems--the lack of a common currency, constant trade disputes between the states, lack of unity in trade and defense policies being only the most notable of them.
The features of the Constitution, the Federalists argued, would provide sufficient energy in the national government to address these problems while preserving a large degree of independence in the states and protecting the rights and liberties of the people.
Because they lost the battle over ratification of the Constitution, very little attention is paid to the Antifederalists. Their reasons for opposing ratification, however, deserve our attention. The Antifederalists became, along with the Federalists of their day, one of the first two political parties in the United States. Furthermore, while the Antifederalist party disappeared long ago, traces of Antifederalist thought persist in American politics today.
In general, the Antifederalists were opposed to the Constitution because they were much less optimistic than the Federalists about the ability of civic virtue and auxiliary precautions to keep the national government in check. But their lists of objections to the Constitution went well beyond those concerns. First and foremost, Antifederalists argued (correctly) that the Convention had exceeded the authority granted to it by the Confederal Congress. Instead of amending the Articles of Confederation, they had abolished them. This, they argued, made the proposed Constitution invalid. As to the document itself, they complained that its scheme of representation was inadequate, that there were not enough restrictions on the authority of the national government--the Constitution merely offered "paper checks" they argued--and that states were stripped of the ability to protect their economic interests through tariffs. Some Antifederalists were also opposed to the Constitution because of its provisions about the "importation" of slaves.
Ironically, the Antifederalists claimed that it was they who were the true supporters of "federalism" and what the Federalists supported was not really a federal system at all, but one which trampled on the sovereignty and independence of the states. They wanted a national Congress that had, at best, authority equal to the states, not greater than them. In short, the Antifederalists wanted to maintain the same kind of relationship that had existed between the states under the Articles of Confederation. They supported a "league of friendship" or a treaty between the states, not a union of the states.
The Antifederalists believed that government should be small and close to the people so that liberty could be preserved to the greatest extent possible. The Constitution, they believed would tip the scales too far in the direction of establishing order, not protecting the liberties of the people. Moreover, they argued that the civic virtue the Federalists seemed to count on for the success of the Constitution was more likely to flourish in smaller communities where the people were more naturally attached to and prone to obey their government. It was also easier in smaller republics, the Antifederalists argued, to achieve the consensus necessary to pursue and realize the common good of a political body.
In spite of the long list of significant objections the Antifederalists made, their opposition to ratification never seemed to solidify around any key structural defect of the Constitution. While Antifederalists variously proposed changing the preamble to read "we the states" instead of "we the people," shortening the terms of national elected officials, creating a multi-person executive and limiting the jurisdiction of the national court, the rallying point for opponents of the Constitution had little to do with the form of government it would ultimately establish. Perhaps sensing that the people would react most positively to the Constitution's failure to provide a listing of guaranteed rights and liberties, the Antifederalists pinned their hopes of defeating the Constitution on their demands that it include a "bill of rights."
The question of a "bill of rights" in the Constitution had been raised at the Convention. There the idea had been rejected for two reasons. First, the delegates seemed to make every effort to avoid making profound, philosophical statements about rights and the nature of government in the Constitution. They were more concerned with the practical business of creating a workable government. During the long, hot Philadelphia summer, they were reluctant to spend time on matters that they considered secondary to that objective. Second, the delegates recognized that listing the rights of the people might imply that anything not listed was not a protected right. Moreover, most of the states already had bills of rights in their constitutions and listing them in the national constitution, many delegates believed, would be redundant.
Arguments in Favor of a Bill of Rights
The arguments against a bill of rights at the Convention notwithstanding, the Antifederalists focused almost all of their energies on attacking the Constitution because it did not explicitly guarantee the rights of the people. Given the "supremacy" clause and the "necessary and proper" clause in the Constitution, the Antifederalists argued that there were effectively no limits on the authority of the national government and, hence, no protections from it for individual citizens.
Turning one of the arguments against a bill of rights on its head, the Antifederalists argued that, if the state constitutions list the rights of the people, why shouldn't the national constitution? Thomas Jefferson, out of the country at the time as the U.S. Ambassador to France, wrote to his Federalist friends that if they expected the people to pledge their allegiance to a new government, the people were "entitled" to a listing of their rights. To feel secure in their rights, those had to be documented.1
Arguments Against a Bill of Rights
While the Antifederalists' arguments in favor of a bill of rights may seem reasonable as you read them today, the Federalists were strongly opposed to the idea. First, the Federalists feared that adding a bill of rights in the middle of the ratification process would tip the scales in favor of the Antifederalists. Some states had ratified the Constitution quickly. Would those ratifications remain in effect if the Constitution was changed in any way? The Antifederalists would probably demand that the Constitution be ratified again in those states. Moreover, the Antifederalists demanded that a new convention be called so they could add a bill of rights to the Constitution. At such a convention, the Federalists feared, the Antifederalists would seek to undo the work of the original convention.
The Federalists were opposed to a bill of rights for philosophical reasons as well. As has been noted, they viewed the new government the Constitution would establish as a covenant between sovereign citizens. Given the limited grant of power from the people to the national government under the Constitution, an enumeration of the rights reserved by the people would be "superfluous and absurd." Government did not have power simply because it was the government, it had power because the people granted it power. If a list of rights were included in the Constitution, the Federalists feared that the implication would be that any right not included on the list was not retained by the people.
With the fate of the Constitution in the balance, Madison and other Federalists agreed to a list of amendments that would be proposed as a "bill of rights" after the first new Congress convened. This compromise was enough to win the support of many Antifederalist sympathizers.
If a bill of rights could secure ratification and, perhaps, contribute to the preservation of liberty, it was a compromise the Federalists were willing to make. Madison also speculated that the Bill of Rights, once incorporated into the Constitution would provide a legal basis for the judiciary to protect the rights and liberties of the people. Indeed, the Supreme Court has played a significant role in interpreting and applying the Bill of Rights. (See "Bill of Rights.")
The Ratification Process
Article VII of the Constitution outlined the procedure by which the document was to be ratified. Instead of submitting the Constitution to the legislatures of the several states, ratification votes were to be held in special ratifying conventions, with the delegates selected by the state legislatures. Doing away with the unanimity requirement that had plagued efforts to change the Articles of Confederation, the Constitution would be "established" if nine of the thirteen states ratified it.
Delaware, one of the smaller states, was the first state to ratify the Constitution on December 7, 1787, followed by Pennsylvania on December 12th of the same year. One of the narrowest successful ratification votes came in Massachusetts on February 7, 1788. After a heated debate and the Federalists' compromise on adding a bill of rights after ratification, the Massachusetts convention affirmed their support for the new Constitution by a vote of 187 to 168.
On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution. However, no one believed the union would be a success without Virginia and New York. While they were the home states, respectively, of James Madison and Alexander Hamilton, both were Antifederalist strongholds. In the face of imminent defeat, the Antifederalists redoubled their efforts to defeat the Constitution and demanded in Virginia that a bill of rights be included in the document before it was ratified. Madison, a Virginian, refused to accept such a condition and forced a vote. Virginia ratified the Constitution by a vote of 89 to 79 on June 26, 1788 and New York followed a month later, by a margin of only three votes. North Carolina and Rhode Island did not ratify the Constitution until after George Washington had been inaugurated as the first President of the United States of America. Their tardiness notwithstanding, ratification in these two states made the union complete.