This is the fourth essay in my live-blog of Hologram of Liberty by Kenneth Royce. You can also read my Introduction, Chapter 1, and Chapter 2.
In Chapter 3 Royce tells the story of how the Federalists got the Constitution ratified. The first clever idea was the method of ratification itself. Since all but two of the 13 States had a bicameral house, there would have been 24 separate house debates to win a majority. The Founders circumvented this by sending the proposed constitution to one ratifying convention in each State. This simplified their work greatly. In no State except Rhode Island was the constitution actually put directly to the citizenry-at-large. This is a very important point. The Founders not only cut their work in half by having one convention, but they also kept the document from the people from approval. If the point of the Constitution was to provide for a limited government for the people of the US, why not let them vote on it directly?
The Federalists understood that the Constitution would not be ratified if the people actually read it. Gouverneur Morris told the Convention on August 31, 1787, that given time "the state officers and those interested in the state governments will intrigue and turn the popular current against it." Conventioneer Luther Martin observed that the people would not ratify the Constitution "unless they are hurried into it by surprise." Royce writes,
"According to the haughty federalists, it was to be "this [Constitution], of nothing" and Americans had a duty to cultivate "a spirit of submission to the counsels of the great patriot band" of Conventioneers. Madison gravely warned, "Either we grant these powers or let the Union be dissolved" (3/3).
The anti-Federalists, however, were quite alarmed at this urgency and advised caution.
It is natural for men, who wish to hasten the adoption of a measure, to tell us, now is the crisis...This has been the custom of tyrants and their dependents in all ages--Letter from "Federal Farmer": October 8, 1787
But remember, when the people once part with power, they can seldom or never resume it again. Many instances can be produced in which the people have voluntarily increased the powers of their rulers; but few, if any, in which rulers have willingly abridged their authority.--"Brutus": October 18, 1787
The conspirators, aware of the danger of delay, that allowing the time for a rational investigation would prove fatal to their designs, precipitated the establishment of the new constitution with all possible celerity:...--"Centinel"; January 23, 1788
Royce also cites an October 22, 1788, letter by "John DeWitt" and a June 5, 1788, speech by Patrick Henry to the Virginia Ratifying Convention.
The Constitution was ratified easily in Delaware, Pennsylvania, New Jersey, George, and Connecticut. In the other eight States, however, the question of ratification was deeply divided, especially in Massachusetts, Virgina, and New York. In response to the anti-constitution essays, the Alexander Hamilton, James Madison, and John Jay wrote The Federalists Papers to convince New Yorkers to ratify the Constitution. Royce calls The Federalists "a fantastic propaganda effort."
The Federalist appealed primarily to contrived fears and "dangers" while blasting all who held even the slightest reservation of the new constitution. To Hamilton, there were no mere sincere differences of opinions on this crucial subject but rather (in #1) "errors of minds led astray by preconceived jealousies and fears" or a "torrent of angry and malignant passions" or " an over scrupulous jealousy of danger to the rights of the people" or "enthusiasm of liberty...infected with a spirit of narrow and illiberal distrust" (3/8).
Royce points out that the open-ended nature of the Constitution was of great concern to many delegates. The Federalists scoffed at this fear, arguing that the government would have no authority unless the Constitution expressly delegated it. The anti-Federalist "Federal Farmer" was not deceived:
The first point urged (by federalist James Wilson) is that all power is reserved not expressly given: that particular enumerated powers only are given, that all others are not given. But the Constitution does not appear to even respect it even in any view. To prove this, I might cite several clauses in it (I:9 states) 'No Title of Nobility shall be granted by Congress.' Were this omitted, what power would Congress have to make titles of nobility? In what part of the Constitution would they find it? The answer must be [according to Wilson's reasoning] that Congress would have no such power, that the people, by adopting the Constitution, will not part with it. Why then by a negative clause restrain Congress from doing what it would have no [expressly delegated] power to do?
This clause, then, must have no meaning, or imply that were it omitted Congress would have the power in question, either upon the principle that some general words in the Constitution may be so construed as to give it, or the principle that Congress [does indeed] possess the powers not expressly reserved.
After I read Federal Farmer's critique of the Nobility clause, I viewed the Bill of Rights differently. If the federal government does not have the power to ban freedom of speech or assembly because it is not explicitly granted in the Constitution, why have the first amendment? If the federal government does not have the power to regulate firearms because it is not explicitly granted in the Constitution, why have the second amendment? If the federal government does not have any power not expressly delegated in the Constitution, then why these redundant rules? In fact, why not say clearly in the Constitution that the federal government has no power not explicitly granted as Article II of the Articles of Confederation stated?
If one believes that the purpose of the Constitution was to protect liberty and that the Founders feared a strong central government, this is a tough question to answer. How can a group of men supposedly terrified of a strong central government and aching to preserve liberty be so obtuse as not see this contradiction? You who defend the Constitution, what do you answer?
Royce ends this chapter with a summary of the Federalists' dirty tactics to get the Constitution ratified. Pro-Confederation delegates were insulted by their legislatures and federalists newspapers. The federalist majority in Pennsylvania called for an October ratifying convention on September 28. The anti-Federalists prevented a quorum by boycotting the afternoon session. "The next day, the federalists ordered the sergeant-at-arms to look for anti-federalists--and with the help of a mob two of them were forcibly brought to the State House" (3/12). Later the Pennsylvania Federalists bought out a newspaper, the Pennsylvania Herald, which had been accurately reporting their actions during the ratification debate. After the paper was bought, it did not publish anything about the constitutional debate in Pennsylvania. Pennsylvanian anti-Federalists' speeches were never published.
The Constitution was rushed into law. Delaware first ratified on December 7, 1787, and the ninth State, New Hampshire, ratified on June 21, 1788. By contrast, writes Royce, the Articles of Confederation took four years to ratify while facing war with Britain. The Bill of Rights took two years.
The Constitution took effect on March 4, 1789 with 11 States under it. Rhode Island, which Royce nicknames Rogue Island, did not call a ratifying convention but put the Constitution to a popular vote. The people rejected it by an 11-1 margin (2,711 to 239). Congress would avenge this sleight two years later.
The framing of the new constitution was indeed a time consuming process and a really important one as well.
Posted by: james wilson | July 04, 2009 at 05:08 AM