write a speech that supported ratification of the constitution

Chapter 2: The Constitution and Its Origins

The Ratification of the Constitution

Learning outcomes.

By the end of this section, you will be able to:

Identify the steps required to ratify the Constitution
Describe arguments the framers raised in support of a strong national government and counterpoints raised by the Anti-Federalists

On September 17, 1787, the delegates to the Constitutional Convention in Philadelphia voted to approve the document they had drafted over the course of many months. Some did not support it, but the majority did. Before it could become the law of the land, however, the Constitution faced another hurdle. It had to be ratified by the states.

THE RATIFICATION PROCESS

Article VII, the final article of the Constitution, required that before the Constitution could become law and a new government could form, the document had to be ratified by nine of the thirteen states. Eleven days after the delegates at the Philadelphia convention approved it, copies of the Constitution were sent to each of the states, which were to hold ratifying conventions to either accept or reject it.

This approach to ratification was an unusual one. Since the authority inherent in the Articles of Confederation and the Confederation Congress had rested on the consent of the states, changes to the nation’s government should also have been ratified by the state legislatures. Instead, by calling upon state legislatures to hold ratification conventions to approve the Constitution, the framers avoided asking the legislators to approve a document that would require them to give up a degree of their own power. The men attending the ratification conventions would be delegates elected by their neighbors to represent their interests. They were not being asked to relinquish their power; in fact, they were being asked to place limits upon the power of their state legislators, whom they may not have elected in the first place. Finally, because the new nation was to be a republic in which power was held by the people through their elected representatives, it was considered appropriate to leave the ultimate acceptance or rejection of the Constitution to the nation’s citizens. If convention delegates, who were chosen by popular vote, approved it, then the new government could rightly claim that it ruled with the consent of the people.

The greatest sticking point when it came to ratification, as it had been at the Constitutional Convention itself, was the relative power of the state and federal governments. The framers of the Constitution believed that without the ability to maintain and command an army and navy, impose taxes, and force the states to comply with laws passed by Congress, the young nation would not survive for very long. But many people resisted increasing the powers of the national government at the expense of the states. Virginia’s Patrick Henry, for example, feared that the newly created office of president would place excessive power in the hands of one man. He also disapproved of the federal government’s new ability to tax its citizens. This right, Henry believed, should remain with the states.

Other delegates, such as Edmund Randolph of Virginia, disapproved of the Constitution because it created a new federal judicial system. Their fear was that the federal courts would be too far away from where those who were tried lived. State courts were located closer to the homes of both plaintiffs and defendants, and it was believed that judges and juries in state courts could better understand the actions of those who appeared before them. In response to these fears, the federal government created federal courts in each of the states as well as in Maine, which was then part of Massachusetts, and Kentucky, which was part of Virginia. [1]

Perhaps the greatest source of dissatisfaction with the Constitution was that it did not guarantee protection of individual liberties. State governments had given jury trials to residents charged with violating the law and allowed their residents to possess weapons for their protection. Some had practiced religious tolerance as well. The Constitution, however, did not contain reassurances that the federal government would do so. Although it provided for habeas corpus and prohibited both a religious test for holding office and granting noble titles, some citizens feared the loss of their traditional rights and the violation of their liberties. This led many of the Constitution’s opponents to call for a bill of rights and the refusal to ratify the document without one. The lack of a bill of rights was especially problematic in Virginia, as the Virginia Declaration of Rights was the most extensive rights-granting document among the states. The promise that a bill of rights would be drafted for the Constitution persuaded delegates in many states to support ratification. [2]

INSIDER PERSPECTIVE

Thomas Jefferson on the Bill of Rights

John Adams and Thomas Jefferson carried on a lively correspondence regarding the ratification of the Constitution. In the following excerpt (reproduced as written) from a letter dated March 15, 1789, after the Constitution had been ratified by nine states but before it had been approved by all thirteen, Jefferson reiterates his previously expressed concerns that a bill of rights to protect citizens’ freedoms was necessary and should be added to the Constitution:

“In the arguments in favor of a declaration of rights, . . . I am happy to find that on the whole you are a friend to this amendment. The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly overweighs the evil. . . . This instrument [the Constitution] forms us into one state as to certain objects, and gives us a legislative & executive body for these objects. It should therefore guard us against their abuses of power. . . . Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. . . . There is a remarkeable difference between the . . . Inconveniences which attend a Declaration of rights, & those which attend the want of it. . . . The inconveniences of the want of a Declaration are permanent, afflicting & irreparable: they are in constant progression from bad to worse.” [3]

What were some of the inconveniences of not having a bill of rights that Jefferson mentioned? Why did he decide in favor of having one?

It was clear how some states would vote. Smaller states, like Delaware, favored the Constitution. Equal representation in the Senate would give them a degree of equality with the larger states, and a strong national government with an army at its command would be better able to defend them than their state militias could. Larger states, however, had significant power to lose. They did not believe they needed the federal government to defend them and disliked the prospect of having to provide tax money to support the new government. Thus, from the very beginning, the supporters of the Constitution feared that New York, Massachusetts, Pennsylvania, and Virginia would refuse to ratify it. That would mean all nine of the remaining states would have to, and Rhode Island, the smallest state, was unlikely to do so. It had not even sent delegates to the convention in Philadelphia. And even if it joined the other states in ratifying the document and the requisite nine votes were cast, the new nation would not be secure without its largest, wealthiest, and most populous states as members of the union.

THE RATIFICATION CAMPAIGN

On the question of ratification, citizens quickly separated into two groups: Federalists and Anti-Federalists. The Federalists supported it. They tended to be among the elite members of society—wealthy and well-educated landowners, businessmen, and former military commanders who believed a strong government would be better for both national defense and economic growth. A national currency, which the federal government had the power to create, would ease business transactions. The ability of the federal government to regulate trade and place tariffs on imports would protect merchants from foreign competition. Furthermore, the power to collect taxes would allow the national government to fund internal improvements like roads, which would also help businessmen. Support for the Federalists was especially strong in New England.

Opponents of ratification were called Anti-Federalists . Anti-Federalists feared the power of the national government and believed state legislatures, with which they had more contact, could better protect their freedoms. Although some Anti-Federalists, like Patrick Henry, were wealthy, most distrusted the elite and believed a strong federal government would favor the rich over those of “the middling sort.” This was certainly the fear of Melancton Smith, a New York merchant and landowner, who believed that power should rest in the hands of small, landowning farmers of average wealth who “are more temperate, of better morals and less ambitious than the great.” [4] Even members of the social elite, like Henry, feared that the centralization of power would lead to the creation of a political aristocracy, to the detriment of state sovereignty and individual liberty.

Related to these concerns were fears that the strong central government Federalists advocated for would levy taxes on farmers and planters, who lacked the hard currency needed to pay them. Many also believed Congress would impose tariffs on foreign imports that would make American agricultural products less welcome in Europe and in European colonies in the western hemisphere. For these reasons, Anti-Federalist sentiment was especially strong in the South.

Some Anti-Federalists also believed that the large federal republic that the Constitution would create could not work as intended. Americans had long believed that virtue was necessary in a nation where people governed themselves (i.e., the ability to put self-interest and petty concerns aside for the good of the larger community). In small republics, similarities among members of the community would naturally lead them to the same positions and make it easier for those in power to understand the needs of their neighbors. In a larger republic, one that encompassed nearly the entire Eastern Seaboard and ran west to the Appalachian Mountains, people would lack such a strong commonality of interests. [5]

Likewise, Anti-Federalists argued, the diversity of religion tolerated by the Constitution would prevent the formation of a political community with shared values and interests. The Constitution contained no provisions for government support of churches or of religious education, and Article VI explicitly forbade the use of religious tests to determine eligibility for public office. This caused many, like Henry Abbot of North Carolina, to fear that government would be placed in the hands of “pagans . . . and Mahometans [Muslims].” [6]

It is difficult to determine how many people were Federalists and how many were Anti-Federalists in 1787. The Federalists won the day, but they may not have been in the majority. First, the Federalist position tended to win support among businessmen, large farmers, and, in the South, plantation owners. These people tended to live along the Eastern Seaboard. In 1787, most of the states were divided into voting districts in a manner that gave more votes to the eastern part of the state than to the western part. [7] Thus, in some states, like Virginia and South Carolina, small farmers who may have favored the Anti-Federalist position were unable to elect as many delegates to state ratification conventions as those who lived in the east. Small settlements may also have lacked the funds to send delegates to the convention. [8]

In all the states, educated men authored pamphlets and published essays and cartoons arguing either for or against ratification. Although many writers supported each position, it is the Federalist essays that are now best known. The arguments these authors put forth, along with explicit guarantees that amendments would be added to protect individual liberties, helped to sway delegates to ratification conventions in many states.

Image a shows a newspaper illustration showing five pillars standing upright representing Delaware, Pennsylvania, New Jersey, Georgia and Connecticut. A sixth pillar representing Massachusetts is broken apart from the others and falling over). Image b shows a similar newspaper illustration showing the six pillars all standing upright.

For obvious reasons, smaller, less populous states favored the Constitution and the protection of a strong federal government. Delaware and New Jersey ratified the document within a few months after it was sent to them for approval in 1787. Connecticut ratified it early in 1788. Some of the larger states, such as Pennsylvania and Massachusetts, also voted in favor of the new government. New Hampshire became the ninth state to ratify the Constitution in the summer of 1788.

This timeline includes twelve states with the dates that each ratified the Constitution. Delaware ratified on December 7, 1787; Pennsylvania ratified on December 12, 1787; New Jersey ratified on December 18, 1787; Georgia ratified on December 31, 1787; Connecticut ratified on January 9, 1788; Massachusetts ratified on February 6, 1788; Maryland ratified on April 26, 1788; South Carolina ratified on May 23, 1788; New Hampshire ratified on June 21, 1788; Virginia ratified on June 25, 1788; New York ratified on July 26, 1788; North Carolina ratified on November 21, 1789; and Rhode Island ratified on May 29, 1790.

Although the Constitution went into effect following ratification by New Hampshire, four states still remained outside the newly formed union. Two were the wealthy, populous states of Virginia and New York. In Virginia, James Madison’s active support and the intercession of George Washington, who wrote letters to the convention, changed the minds of many. Some who had initially opposed the Constitution, such as Edmund Randolph, were persuaded that the creation of a strong union was necessary for the country’s survival and changed their position. Other Virginia delegates were swayed by the promise that a bill of rights similar to the Virginia Declaration of Rights would be added after the Constitution was ratified. On June 25, 1788, Virginia became the tenth state to grant its approval.

The approval of New York was the last major hurdle. Facing considerable opposition to the Constitution in that state, Alexander Hamilton, James Madison, and John Jay wrote a series of essays, beginning in 1787, arguing for a strong federal government and support of the Constitution. Later compiled as The Federalist and now known as The Federalist Papers , these eighty-five essays were originally published in newspapers in New York and other states under the name of Publius, a supporter of the Roman Republic.

This image shows an advertisement for The Federalist papers.

The essays addressed a variety of issues that troubled citizens. For example, in Federalist No. 51, attributed to James Madison, the author assured readers they did not need to fear that the national government would grow too powerful. The federal system, in which power was divided between the national and state governments, and the division of authority within the federal government into separate branches would prevent any one part of the government from becoming too strong. Furthermore, tyranny could not arise in a government in which “the legislature necessarily predominates.” Finally, the desire of office holders in each branch of government to exercise the powers given to them, described as “personal motives,” would encourage them to limit any attempt by the other branches to overstep their authority. According to Madison, “Ambition must be made to counteract ambition.”

Other essays countered different criticisms made of the Constitution and echoed the argument in favor of a strong national government. In Federalist No. 35, for example, Hamilton argued that people’s interests could in fact be represented by men who were not their neighbors. Indeed, Hamilton asked rhetorically, would American citizens best be served by a representative “whose observation does not travel beyond the circle of his neighbors and his acquaintances” or by someone with more extensive knowledge of the world? To those who argued that a merchant and land-owning elite would come to dominate Congress, Hamilton countered that the majority of men currently sitting in New York’s state senate and assembly were landowners of moderate wealth and that artisans usually chose merchants, “their natural patron[s] and friend[s],” to represent them. An aristocracy would not arise, and if it did, its members would have been chosen by lesser men. Similarly, Jay reminded New Yorkers in Federalist No. 2 that union had been the goal of Americans since the time of the Revolution. A desire for union was natural among people of such “similar sentiments” who “were united to each other by the strongest ties,” and the government proposed by the Constitution was the best means of achieving that union.

An engraving depicts James Madison. A painting depicts Alexander Hamilton.

Objections that an elite group of wealthy and educated bankers, businessmen, and large landowners would come to dominate the nation’s politics were also addressed by Madison in Federalist No. 10. Americans need not fear the power of factions or special interests, he argued, for the republic was too big and the interests of its people too diverse to allow the development of large, powerful political parties. Likewise, elected representatives, who were expected to “possess the most attractive merit,” would protect the government from being controlled by “an unjust and interested [biased in favor of their own interests] majority.”

For those who worried that the president might indeed grow too ambitious or king-like, Hamilton, in Federalist No. 68, provided assurance that placing the leadership of the country in the hands of one person was not dangerous. Electors from each state would select the president. Because these men would be members of a “transient” body called together only for the purpose of choosing the president and would meet in separate deliberations in each state, they would be free of corruption and beyond the influence of the “heats and ferments” of the voters. Indeed, Hamilton argued in Federalist No. 70, instead of being afraid that the president would become a tyrant, Americans should realize that it was easier to control one person than it was to control many. Furthermore, one person could also act with an “energy” that Congress did not possess. Making decisions alone, the president could decide what actions should be taken faster than could Congress, whose deliberations, because of its size, were necessarily slow. At times, the “decision, activity, secrecy, and dispatch” of the chief executive might be necessary.

LINK TO LEARNING

The Library of Congress has The Federalist Papers on their website. The Anti-Federalists also produced a body of writings, less extensive than The Federalists Papers , which argued against the ratification of the Constitution. However, these were not written by one small group of men as The Federalist Papers had been. A collection of the writings that are unofficially called The Anti-Federalist Papers is also available online.

The arguments of the Federalists were persuasive, but whether they actually succeeded in changing the minds of New Yorkers is unclear. Once Virginia ratified the Constitution on June 25, 1788, New York realized that it had little choice but to do so as well. If it did not ratify the Constitution, it would be the last large state that had not joined the union. Thus, on July 26, 1788, the majority of delegates to New York’s ratification convention voted to accept the Constitution. A year later, North Carolina became the twelfth state to approve. Alone and realizing it could not hope to survive on its own, Rhode Island became the last state to ratify, nearly two years after New York had done so.

FINDING A MIDDLE GROUND

Term Limits

One of the objections raised to the Constitution’s new government was that it did not set term limits for members of Congress or the president. Those who opposed a strong central government argued that this failure could allow a handful of powerful men to gain control of the nation and rule it for as long as they wished. Although the framers did not anticipate the idea of career politicians, those who supported the Constitution argued that reelecting the president and reappointing senators by state legislatures would create a body of experienced men who could better guide the country through crises. A president who did not prove to be a good leader would be voted out of office instead of being reelected. In fact, presidents long followed George Washington’s example and limited themselves to two terms. Only in 1951, after Franklin Roosevelt had been elected four times, was the Twenty-Second Amendment passed to restrict the presidency to two terms.

Are term limits a good idea? Should they have originally been included in the Constitution? Why or why not? Are there times when term limits might not be good?

CHAPTER REVIEW

See the Chapter 2.4 Review for a summary of this section, the key vocabulary , and some review questions to check your knowledge.

Pauline Maier. 2010. Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 464. ↵
Maier, Ratification, 431. ↵
Letter from Thomas Jefferson to James Madison, March 15, 1789, https://www.gwu.edu/~ffcp/exhibit/p7/p7_1text.html . ↵
Isaac Krannick. 1999. “The Great National Discussion: The Discourse of Politics in 1787.” In What Did the Constitution Mean to Early Americans? ed. Edward Countryman. Boston: Bedford/St. Martins, 52. ↵
Krannick, Great National Discussion, 42-43. ↵
Krannick, Great National Discussion, 42. ↵
Evelyn C. Fink and William H. Riker. 1989. "The Strategy of Ratification." In The Federalist Papers and the New Institutionalism, eds. Bernard Grofman and Donald Wittman. New York: Agathon, 229. ↵
Fink and Riker, Strategy of Ratification, 221. ↵

those who supported ratification of the Constitution

those who did not support ratification of the Constitution

a collection of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay in support of ratification of the Constitution

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The American Founding

write a speech that supported ratification of the constitution

James Wilson’s State House Speech

October 6, 1787

Introduction

On September 29, 1787, the Pennsylvania Assembly approved calling elections to select sixty-nine delegates on November 6 to meet in Philadelphia on November 20 to approve or reject the proposed Constitution. Edmund Randolph (Virginia), George Mason (Virginia) and Elbridge Gerry (Massachusetts) launched the opposition position with their refusal to sign the Constitution on September 17 ( Objections at the Constitutional Convention ). The the ratification campaign began in earnest with this speech by James Wilson defending the Constitution and the absence of a bill of rights.

Wilson (1742–1798), born in Scotland, immigrated to the United States when a young man, and became a leading lawyer and political figure in Pennsylvania. He signed both the Declaration of Independence and the Constitution. His “State House” speech, delivered at the State House in Philadelphia, was the first official defense of the Constitution and responded directly to the objections George Mason had expressed during the last month of the Convention. It was published in the Pennsylvania Herald and widely distributed as “an authoritative explanation” of the Constitution.

Wilson argued that at the state level, a bill of rights is necessary and salutary because every power “which is not reserved” to the people “is given” to government; but a bill of rights is “superfluous and absurd” at the federal level because “everything which is not given, is reserved.” Both supporters and opponents in the ratification debates invoked Wilson’s theory of “distinction”.

Randolph repeated Wilson’s argument at the Virginia Ratifying Convention in June 1788 ( Virginia Ratifying Convention ). On August 12, 1788 Hamilton made it in ( Federalist 84 ), the last essay published in The New York Packet but the first in The Federalist to deal directly with the bill of rights controversy. This speech at the beginning of the ratification campaign became a defining one over the need for a bill of rights.

SOURCE: WE HAVE USED THE VERSION OF THE SPEECH PREPARED BY THE LIBERTY FUND; JAMES WILSON, COLLECTED WORKS OF JAMES WILSON, EDITED BY KERMIT L. HALL AND MARK DAVID HALL, (INDIANAPOLIS: LIBERTY FUND, 2007) HTTPS://GOO.GL/ZTYMO5

Mr. Chairman and Fellow Citizens,

Having received the honor of an appointment to represent you in the late convention, it is perhaps, my duty to comply with the request of many gentlemen whose characters and judgments I sincerely respect, and who have urged, that this would be a proper occasion to lay before you any information, which will serve to explain and elucidate the principles and arrangements of the Constitution that has been submitted to the consideration of the United States. I confess that I am unprepared for so extensive and so important a disquisition; but the insidious attempts which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to engage in its defense; and the impressions of four months constant attention to the subject, have not been so easily effaced as to leave me without an answer to the objections which have been raised.

It will be proper, however, before I enter into the refutation of the charges that are alleged, to mark the leading discrimination between the state constitutions, and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing 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 that body into existence. 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. With respect likewise to the particular district of ten miles, which is to be made the seat of federal government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be exclusively lodged in the president, Senate, and House of Representatives of the United States. But this could not be an object with the Convention, for it must naturally depend upon a future compact, to which the citizens immediately interested, will, and ought to be parties; and there is no reason to suspect that so popular a privilege will in that case be neglected. 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.

Another objection that has been fabricated against the new Constitution, is expressed in this disingenuous form—“the trial by jury is abolished in civil cases.” I must be excused, my fellow citizens, if upon this point, I take advantage of my professional experience to detect the futility of the assertion. Let it be remembered then, that the business of the federal Convention was not local, but general; not limited to the views and establishments of a single state, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties. When therefore, this subject was in discussion, we were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a trial by jury differed in the different states, it was therefore impracticable on that ground to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless; and it could not, with any propriety, be said that “the trial by jury shall be as heretofore,” since there has never existed any federal system of jurisprudence to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions, for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in courts of equity, do not require the intervention of that tribunal. How then, was the line of discrimination to be drawn? The convention found the task too difficult for them, and they left the business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the Supreme Court, are to be regulated by the Congress, which is a faithful representation of the people; and the oppression of government is effectually barred, by declaring that in all criminal cases the trial by jury shall be preserved.

This Constitution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in the time of peace.—This has always been a topic of popular declamation; and yet, I do not know a nation in the world, which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility. Nor is it a novelty with us; for under the present articles of confederation, congress certainly possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along the banks of the Ohio. But what would be our national situation were it otherwise? Every principle of policy must be subverted, and the government must declare war, before they are prepared to carry it on. Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defense. The consequence is too obvious to require any further delineation, and no man, who regards the dignity and safety of his country, can deny the necessity of a military force, under the control and with the restrictions which the new constitution provides.

Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful aristocracy in the federal senate. This body branches into two characters, the one legislative, and the other executive. In its legislative character it can effect no purpose, without the cooperation of the House of Representatives, and in its executive character, it can accomplish no object, without the concurrence of the president. Thus fettered, I do not know any act which the Senate can of itself perform, and such dependence necessarily precludes every idea of influence and superiority. But I will confess that in the organization of this body, a compromise between contending interests is discernable; and when we reflect how various are the laws, commerce, habits, population, and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part, my admiration can only be equaled by my astonishment, in beholding so perfect a system, formed from such heterogeneous materials.

The next accusation I shall consider, is that which represents the federal Constitution as not only calculated, but designedly framed, to reduce the state governments to mere corporations, and eventually to annihilate them. Those who have employed the term corporation upon this occasion are not perhaps aware of its extent. In common parlance, indeed, it is generally applied to petty associations for the ease and convenience of a few individuals; but in its enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the states, and even this projected system is nothing more than a formal act of incorporation. But upon what pretense can it be alleged that it was designed to annihilate the state governments? For, I will undertake to prove that upon their existence, depends the existence of the federal plan. For this purpose, permit me to call your attention to the manner in which the president, Senate, and House of Representatives, are proposed to be appointed. The president is to be chosen by electors, nominated in such manner as the legislature of each state may direct; so that if there is no legislature, there can be no electors, and consequently the office of president cannot be supplied. The Senate is to be composed of two senators from each state, chosen by the legislature; and therefore if there is no legislature, there can be no Senate. The House of Representatives, is to be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature,—unless therefore, there is a state legislature, that qualification cannot be ascertained, and the popular branch of the federal constitution must likewise be extinct. From this view, then it is evidently absurd to suppose, that the annihilation of the separate governments will result from their union; or, that having that intention, the authors of the new system would have bound their connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous, for you will perceive, without prejudice to the powers of the legislature in the election of senators, the people at large will acquire an additional privilege in returning members to the house of representatives—whereas, by the present confederation, it is the legislature alone that appoints the delegates to Congress.

The power of direct taxation [1] has likewise been treated as an improper delegation to the federal government; but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the union, and to discharge the debts contracted upon the collective faith of the states for their common benefit, it must be acknowledged, that those upon whom such important obligations are imposed, ought in justice and in policy to possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary evils? I will venture to predict, that the great revenue of the United States must, and always will be raised by impost, [2] for, being at once less obnoxious, and more productive, the interest of the government will be best promoted by the accommodation of the people. Still however, the objects of direct taxation should be within reach in all cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource, than in the form of an impost, which, by universal assent, is left to the authority of the federal government. In either case, the force of civil institutions will be adequate to the purpose; and the dread of military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild imagination, or a factious spirit. But the salutary consequences that must flow from thus enabling the government to receive and support the credit of the union, will afford another answer to the objections upon this ground. The state of Pennsylvania particularly, which has encumbered itself with the assumption of a great proportion of the public debt, will derive considerable relief and advantage; for, as it was the imbecility of the present confederation, which gave rise to the funding law, that law must naturally expire, when a competent and energetic federal system shall be substituted—the state will then be discharged from an extraordinary burden, and the national creditor will find it to be his interest to return to his original security

After all, my fellow citizens, it is neither extraordinary or unexpected, that the constitution offered to your consideration, should meet with opposition. It is the nature of man to pursue his own interest, in preference to the public good; and I do not mean to make any personal reflection, when I add, that it is the interest of a very numerous, powerful, and respectable body to counteract and destroy the excellent work produced by the late convention. All the offices of government, and all the appointments for the administration of justice and the collection of the public revenue, which are transferred from the individual to the aggregate sovereignty of the states, will necessarily turn the stream of influence and emolument into a new channel. Every person therefore, who either enjoys, or expects to enjoy, a place of profit under the present establishment, will object to the proposed innovation; not, in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence. I will confess indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it, which if my wish had prevailed, would certainly have been altered. But, when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every state) has an equal pretension to assert his own, I am satisfied that any thing nearer to perfection could not have been accomplished. If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds of the congress may at any time introduce alterations and amendments. Regarding it then, in every point of view, with a candid and disinterested mind, I am bold to assert, that it is the best form of government which has ever been offered to the world.

A direct tax is a tax levied on a person or on property.
tax on imports

The Ratification of the Constitution

OpenStax and Lumen Learning

Learning Objectives

By the end of this section, you will be able to:

Identify the steps required to ratify the Constitution
Describe arguments the framers raised in support of a strong national government and counterpoints raised by the Anti-Federalists

THE RATIFICATION PROCESS

INSIDER PERSPECTIVE

Thomas Jefferson on the Bill of Rights

“In the arguments in favor of a declaration of rights, . . . I am happy to find that on the whole you are a friend to this amendment. The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly overweighs the evil. . . . This instrument [the Constitution] forms us into one state as to certain objects, and gives us a legislative & executive body for these objects. It should therefore guard us against their abuses of power. . . . Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. . . . There is a remarkeable difference between the . . . Inconveniences which attend a Declaration of rights, & those which attend the want of it. . . . The inconveniences of the want of a Declaration are permanent, afflicting & irreparable: they are in constant progression from bad to worse.” [3]

What were some of the inconveniences of not having a bill of rights that Jefferson mentioned? Why did he decide in favor of having one?

THE RATIFICATION CAMPAIGN

Although the Constitution went into effect following ratification by New Hampshire, four states still remained outside the newly formed union. Two were the wealthy, populous states of Virginia and New York. In Virginia, James Madison’s active support and the intercession of George Washington, who wrote letters to the convention, changed the minds of many. Some who had initially opposed the Constitution, such as Edmund Randolph, were persuaded that the creation of a strong union was necessary for the country’s survival and changed their positions. Other Virginia delegates were swayed by the promise that a bill of rights similar to the Virginia Declaration of Rights would be added after the Constitution was ratified. On June 25, 1788, Virginia became the tenth state to grant its approval.

Advertisement for The Federalist papers.

LINK TO LEARNING

The Library of Congress has The Federalist Papers on their website. The Anti-Federalists also produced a body of writings, less extensive than The Federalist Papers , which argued against the ratification of the Constitution. However, these were not written by one small group of men as The Federalist Papers had been. A collection of the writings that are unofficially called The Anti-Federalist Papers is also available online.

FINDING A MIDDLE GROUND

Term Limits

Are term limits a good idea? Should they have originally been included in the Constitution? Why or why not? Are there times when term limits might not be good?

CHAPTER REVIEW

See the Chapter 2.4 Review for a summary of this section, the key vocabulary , and some review questions to check your knowledge.

Pauline Maier. 2010. Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 464. ↵
Maier, Ratification, 431. ↵
Letter from Thomas Jefferson to James Madison, March 15, 1789, https://www.gwu.edu/~ffcp/exhibit/p7/p7_1text.html . ↵
Isaac Krannick. 1999. “The Great National Discussion: The Discourse of Politics in 1787.” In What Did the Constitution Mean to Early Americans? ed. Edward Countryman. Boston: Bedford/St. Martins, 52. ↵
Krannick, Great National Discussion, 42-43. ↵
Krannick, Great National Discussion, 42. ↵
Evelyn C. Fink and William H. Riker. 1989. "The Strategy of Ratification." In The Federalist Papers and the New Institutionalism, eds. Bernard Grofman and Donald Wittman. New York: Agathon, 229. ↵
Fink and Riker, Strategy of Ratification, 221. ↵

those who supported ratification of the Constitution

those who did not support ratification of the Constitution

a collection of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay in support of ratification of the Constitution

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US government and civics

Course: us government and civics > unit 1.

The Constitutional Convention
Constitutional compromises: The Electoral College
Constitutional compromises: The Three-Fifths Compromise
The impact of constitutional compromises on us today
The Constitution of the United States
Article V and the Amendment Process
Article V of the Constitution: Amendment Process
Article VI of the Constitution: Debts, Supremacy, Oaths, Religious Tests
Article VII of the Constitution: Ratification

Ratification of the US Constitution: lesson overview

Ratification of the US Constitution

Key documents to know

The amendment process, important takeaways, review questions, want to join the conversation.

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America's Founding Documents

Constitution of the United States—A History

A more perfect union: the creation of the u.s. constitution.

General George Washington

He was unanimously elected president of the Philadelphia convention.

May 25, 1787, freshly spread dirt covered the cobblestone street in front of the Pennsylvania State House, protecting the men inside from the sound of passing carriages and carts. Guards stood at the entrances to ensure that the curious were kept at a distance. Robert Morris of Pennsylvania, the "financier" of the Revolution, opened the proceedings with a nomination--Gen. George Washington for the presidency of the Constitutional Convention. The vote was unanimous. With characteristic ceremonial modesty, the general expressed his embarrassment at his lack of qualifications to preside over such an august body and apologized for any errors into which he might fall in the course of its deliberations.

To many of those assembled, especially to the small, boyish-looking, 36-year-old delegate from Virginia, James Madison, the general's mere presence boded well for the convention, for the illustrious Washington gave to the gathering an air of importance and legitimacy But his decision to attend the convention had been an agonizing one. The Father of the Country had almost remained at home.

Suffering from rheumatism, despondent over the loss of a brother, absorbed in the management of Mount Vernon, and doubting that the convention would accomplish very much or that many men of stature would attend, Washington delayed accepting the invitation to attend for several months. Torn between the hazards of lending his reputation to a gathering perhaps doomed to failure and the chance that the public would view his reluctance to attend with a critical eye, the general finally agreed to make the trip. James Madison was pleased.

The Articles of Confederation

The determined Madison had for several years insatiably studied history and political theory searching for a solution to the political and economic dilemmas he saw plaguing America. The Virginian's labors convinced him of the futility and weakness of confederacies of independent states. America's own government under the Articles of Confederation, Madison was convinced, had to be replaced. In force since 1781, established as a "league of friendship" and a constitution for the 13 sovereign and independent states after the Revolution, the articles seemed to Madison woefully inadequate. With the states retaining considerable power, the central government, he believed, had insufficient power to regulate commerce. It could not tax and was generally impotent in setting commercial policy it could not effectively support a war effort. It had little power to settle quarrels between states. Saddled with this weak government, the states were on the brink of economic disaster. The evidence was overwhelming. Congress was attempting to function with a depleted treasury; paper money was flooding the country, creating extraordinary inflation--a pound of tea in some areas could be purchased for a tidy $100; and the depressed condition of business was taking its toll on many small farmers. Some of them were being thrown in jail for debt, and numerous farms were being confiscated and sold for taxes.

In 1786 some of the farmers had fought back. Led by Daniel Shays, a former captain in the Continental army, a group of armed men, sporting evergreen twigs in their hats, prevented the circuit court from sitting at Northampton, MA, and threatened to seize muskets stored in the arsenal at Springfield. Although the insurrection was put down by state troops, the incident confirmed the fears of many wealthy men that anarchy was just around the corner. Embellished day after day in the press, the uprising made upper-class Americans shudder as they imagined hordes of vicious outlaws descending upon innocent citizens. From his idyllic Mount Vernon setting, Washington wrote to Madison: "Wisdom and good examples are necessary at this time to rescue the political machine from the impending storm."

Madison thought he had the answer. He wanted a strong central government to provide order and stability. "Let it be tried then," he wrote, "whether any middle ground can be taken which will at once support a due supremacy of the national authority," while maintaining state power only when "subordinately useful." The resolute Virginian looked to the Constitutional Convention to forge a new government in this mold.

The convention had its specific origins in a proposal offered by Madison and John Tyler in the Virginia assembly that the Continental Congress be given power to regulate commerce throughout the Confederation. Through their efforts in the assembly a plan was devised inviting the several states to attend a convention at Annapolis, MD, in September 1786 to discuss commercial problems. Madison and a young lawyer from New York named Alexander Hamilton issued a report on the meeting in Annapolis, calling upon Congress to summon delegates of all of the states to meet for the purpose of revising the Articles of Confederation. Although the report was widely viewed as a usurpation of congressional authority, the Congress did issue a formal call to the states for a convention. To Madison it represented the supreme chance to reverse the country's trend. And as the delegations gathered in Philadelphia, its importance was not lost to others. The squire of Gunston Hall, George Mason, wrote to his son, "The Eyes of the United States are turned upon this Assembly and their Expectations raised to a very anxious Degree. May God Grant that we may be able to gratify them, by establishing a wise and just Government."

The Delegates

Seventy-four delegates were appointed to the convention, of which 55 actually attended sessions. Rhode Island was the only state that refused to send delegates. Dominated by men wedded to paper currency, low taxes, and popular government, Rhode Island's leaders refused to participate in what they saw as a conspiracy to overthrow the established government. Other Americans also had their suspicions. Patrick Henry, of the flowing red Glasgow cloak and the magnetic oratory, refused to attend, declaring he "smelt a rat." He suspected, correctly, that Madison had in mind the creation of a powerful central government and the subversion of the authority of the state legislatures. Henry along with many other political leaders, believed that the state governments offered the chief protection for personal liberties. He was determined not to lend a hand to any proceeding that seemed to pose a threat to that protection.

With Henry absent, with such towering figures as Jefferson and Adams abroad on foreign missions, and with John Jay in New York at the Foreign Office, the convention was without some of the country's major political leaders. It was, nevertheless, an impressive assemblage. In addition to Madison and Washington, there were Benjamin Franklin of Pennsylvania--crippled by gout, the 81-year-old Franklin was a man of many dimensions printer, storekeeper, publisher, scientist, public official, philosopher, diplomat, and ladies' man; James Wilson of Pennsylvania--a distinguished lawyer with a penchant for ill-advised land-jobbing schemes, which would force him late in life to flee from state to state avoiding prosecution for debt, the Scotsman brought a profound mind steeped in constitutional theory and law; Alexander Hamilton of New York--a brilliant, ambitious former aide-de-camp and secretary to Washington during the Revolution who had, after his marriage into the Schuyler family of New York, become a powerful political figure; George Mason of Virginia--the author of the Virginia Bill of Rights whom Jefferson later called "the Cato of his country without the avarice of the Roman"; John Dickinson of Delaware--the quiet, reserved author of the "Farmers' Letters" and chairman of the congressional committee that framed the articles; and Gouverneur Morris of Pennsylvania-- well versed in French literature and language, with a flair and bravado to match his keen intellect, who had helped draft the New York State Constitution and had worked with Robert Morris in the Finance Office.

There were others who played major roles - Oliver Ellsworth of Connecticut; Edmund Randolph of Virginia; William Paterson of New Jersey; John Rutledge of South Carolina; Elbridge Gerry of Massachusetts; Roger Sherman of Connecticut; Luther Martin of Maryland; and the Pinckneys, Charles and Charles Cotesworth, of South Carolina. Franklin was the oldest member and Jonathan Dayton, the 27-year-old delegate from New Jersey was the youngest. The average age was 42. Most of the delegates had studied law, had served in colonial or state legislatures, or had been in the Congress. Well versed in philosophical theories of government advanced by such philosophers as James Harrington, John Locke, and Montesquieu, profiting from experience gained in state politics, the delegates composed an exceptional body, one that left a remarkably learned record of debate. Fortunately we have a relatively complete record of the proceedings, thanks to the indefatigable James Madison. Day after day, the Virginian sat in front of the presiding officer, compiling notes of the debates, not missing a single day or a single major speech. He later remarked that his self-confinement in the hall, which was often oppressively hot in the Philadelphia summer, almost killed him.

The sessions of the convention were held in secret--no reporters or visitors were permitted. Although many of the naturally loquacious members were prodded in the pubs and on the streets, most remained surprisingly discreet. To those suspicious of the convention, the curtain of secrecy only served to confirm their anxieties. Luther Martin of Maryland later charged that the conspiracy in Philadelphia needed a quiet breeding ground. Thomas Jefferson wrote John Adams from Paris, "I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members."

The Virginia Plan

On Tuesday morning, May 29, Edmund Randolph, the tall, 34-year- old governor of Virginia, opened the debate with a long speech decrying the evils that had befallen the country under the Articles of Confederation and stressing the need for creating a strong national government. Randolph then outlined a broad plan that he and his Virginia compatriots had, through long sessions at the Indian Queen tavern, put together in the days preceding the convention. James Madison had such a plan on his mind for years. The proposed government had three branches--legislative, executive, and judicial--each branch structured to check the other. Highly centralized, the government would have veto power over laws enacted by state legislatures. The plan, Randolph confessed, "meant a strong consolidated union in which the idea of states should be nearly annihilated." This was, indeed, the rat so offensive to Patrick Henry.

The introduction of the so-called Virginia Plan at the beginning of the convention was a tactical coup. The Virginians had forced the debate into their own frame of reference and in their own terms.

For 10 days the members of the convention discussed the sweeping and, to many delegates, startling Virginia resolutions. The critical issue, described succinctly by Gouverneur Morris on May 30, was the distinction between a federation and a national government, the "former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation." Morris favored the latter, a "supreme power" capable of exercising necessary authority not merely a shadow government, fragmented and hopelessly ineffective.

The New Jersey Plan

This nationalist position revolted many delegates who cringed at the vision of a central government swallowing state sovereignty. On June 13 delegates from smaller states rallied around proposals offered by New Jersey delegate William Paterson. Railing against efforts to throw the states into "hotchpot," Paterson proposed a "union of the States merely federal." The "New Jersey resolutions" called only for a revision of the articles to enable the Congress more easily to raise revenues and regulate commerce. It also provided that acts of Congress and ratified treaties be "the supreme law of the States."

For 3 days the convention debated Paterson's plan, finally voting for rejection. With the defeat of the New Jersey resolutions, the convention was moving toward creation of a new government, much to the dismay of many small-state delegates. The nationalists, led by Madison, appeared to have the proceedings in their grip. In addition, they were able to persuade the members that any new constitution should be ratified through conventions of the people and not by the Congress and the state legislatures- -another tactical coup. Madison and his allies believed that the constitution they had in mind would likely be scuttled in the legislatures, where many state political leaders stood to lose power. The nationalists wanted to bring the issue before "the people," where ratification was more likely.

Hamilton's Plan

Alexander Hamilton

On June 18 called the British government "the best in the world" and proposed a model strikingly similar. The erudite New Yorker, however, later became one of the most ardent spokesmen for the new Constitution.

On June 18 Alexander Hamilton presented his own ideal plan of government. Erudite and polished, the speech, nevertheless, failed to win a following. It went too far. Calling the British government "the best in the world," Hamilton proposed a model strikingly similar an executive to serve during good behavior or life with veto power over all laws; a senate with members serving during good behavior; the legislature to have power to pass "all laws whatsoever." Hamilton later wrote to Washington that the people were now willing to accept "something not very remote from that which they have lately quitted." What the people had "lately quitted," of course, was monarchy. Some members of the convention fully expected the country to turn in this direction. Hugh Williamson of North Carolina, a wealthy physician, declared that it was "pretty certain . . . that we should at some time or other have a king." Newspaper accounts appeared in the summer of 1787 alleging that a plot was under way to invite the second son of George III, Frederick, Duke of York, the secular bishop of Osnaburgh in Prussia, to become "king of the United States."

Alexander Hamilton on June 18 called the British government "the best in the world" and proposed a model strikingly similar. The erudite New Yorker, however, later became one of the most ardent spokesmen for the new Constitution.

Strongly militating against any serious attempt to establish monarchy was the enmity so prevalent in the revolutionary period toward royalty and the privileged classes. Some state constitutions had even prohibited titles of nobility. In the same year as the Philadelphia convention, Royall Tyler, a revolutionary war veteran, in his play The Contract, gave his own jaundiced view of the upper classes:

Exult each patriot heart! this night is shewn A piece, which we may fairly call our own; Where the proud titles of "My Lord!" "Your Grace!" To humble Mr. and plain Sir give place.

Most delegates were well aware that there were too many Royall Tylers in the country, with too many memories of British rule and too many ties to a recent bloody war, to accept a king. As the debate moved into the specifics of the new government, Alexander Hamilton and others of his persuasion would have to accept something less.

By the end of June, debate between the large and small states over the issue of representation in the first chamber of the legislature was becoming increasingly acrimonious. Delegates from Virginia and other large states demanded that voting in Congress be according to population; representatives of smaller states insisted upon the equality they had enjoyed under the articles. With the oratory degenerating into threats and accusations, Benjamin Franklin appealed for daily prayers. Dressed in his customary gray homespun, the aged philosopher pleaded that "the Father of lights . . . illuminate our understandings." Franklin's appeal for prayers was never fulfilled; the convention, as Hugh Williamson noted, had no funds to pay a preacher.

On June 29 the delegates from the small states lost the first battle. The convention approved a resolution establishing population as the basis for representation in the House of Representatives, thus favoring the larger states. On a subsequent small-state proposal that the states have equal representation in the Senate, the vote resulted in a tie. With large-state delegates unwilling to compromise on this issue, one member thought that the convention "was on the verge of dissolution, scarce held together by the strength of an hair."

By July 10 George Washington was so frustrated over the deadlock that he bemoaned "having had any agency" in the proceedings and called the opponents of a strong central government "narrow minded politicians . . . under the influence of local views." Luther Martin of Maryland, perhaps one whom Washington saw as "narrow minded," thought otherwise. A tiger in debate, not content merely to parry an opponent's argument but determined to bludgeon it into eternal rest, Martin had become perhaps the small states' most effective, if irascible, orator. The Marylander leaped eagerly into the battle on the representation issue declaring, "The States have a right to an equality of representation. This is secured to us by our present articles of confederation; we are in possession of this privilege."

The Great Compromise

Also crowding into this complicated and divisive discussion over representation was the North-South division over the method by which slaves were to be counted for purposes of taxation and representation. On July 12 Oliver Ellsworth proposed that representation for the lower house be based on the number of free persons and three-fifths of "all other persons," a euphemism for slaves. In the following week the members finally compromised, agreeing that direct taxation be according to representation and that the representation of the lower house be based on the white inhabitants and three-fifths of the "other people." With this compromise and with the growing realization that such compromise was necessary to avoid a complete breakdown of the convention, the members then approved Senate equality. Roger Sherman had remarked that it was the wish of the delegates "that some general government should be established." With the crisis over representation now settled, it began to look again as if this wish might be fulfilled.

For the next few days the air in the City of Brotherly Love, although insufferably muggy and swarming with blue-bottle flies, had the clean scent of conciliation. In this period of welcome calm, the members decided to appoint a Committee of Detail to draw up a draft constitution. The convention would now at last have something on paper. As Nathaniel Gorham of Massachusetts, John Rutledge, Edmund Randolph, James Wilson, and Oliver Ellsworth went to work, the other delegates voted themselves a much needed 10-day vacation.

During the adjournment, Gouverneur Morris and George Washington rode out along a creek that ran through land that had been part of the Valley Forge encampment 10 years earlier. While Morris cast for trout, Washington pensively looked over the now lush ground where his freezing troops had suffered, at a time when it had seemed as if the American Revolution had reached its end. The country had come a long way.

The First Draft

On Monday August 6, 1787, the convention accepted the first draft of the Constitution. Here was the article-by-article model from which the final document would result some 5 weeks later. As the members began to consider the various sections, the willingness to compromise of the previous days quickly evaporated. The most serious controversy erupted over the question of regulation of commerce. The southern states, exporters of raw materials, rice, indigo, and tobacco, were fearful that a New England-dominated Congress might, through export taxes, severely damage the South's economic life. C. C. Pinckney declared that if Congress had the power to regulate trade, the southern states would be "nothing more than overseers for the Northern States."

On August 21 the debate over the issue of commerce became very closely linked to another explosive issue--slavery. When Martin of Maryland proposed a tax on slave importation, the convention was thrust into a strident discussion of the institution of slavery and its moral and economic relationship to the new government. Rutledge of South Carolina, asserting that slavery had nothing at all to do with morality, declared, "Interest alone is the governing principle with nations." Sherman of Connecticut was for dropping the tender issue altogether before it jeopardized the convention. Mason of Virginia expressed concern over unlimited importation of slaves but later indicated that he also favored federal protection of slave property already held. This nagging issue of possible federal intervention in slave traffic, which Sherman and others feared could irrevocably split northern and southern delegates, was settled by, in Mason's words, "a bargain." Mason later wrote that delegates from South Carolina and Georgia, who most feared federal meddling in the slave trade, made a deal with delegates from the New England states. In exchange for the New Englanders' support for continuing slave importation for 20 years, the southerners accepted a clause that required only a simple majority vote on navigation laws, a crippling blow to southern economic interests.

The bargain was also a crippling blow to those working to abolish slavery. Congregationalist minister and abolitionist Samuel Hopkins of Connecticut charged that the convention had sold out: "How does it appear . . . that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorize them to enslave their fellow men . . . Ah! these unclean spirits, like frogs, they, like the Furies of the poets are spreading discord, and exciting men to contention and war." Hopkins considered the Constitution a document fit for the flames.

On August 31 a weary George Mason, who had 3 months earlier written so expectantly to his son about the "great Business now before us," bitterly exclaimed that he "would sooner chop off his right hand than put it to the Constitution as it now stands." Mason despaired that the convention was rushing to saddle the country with an ill-advised, potentially ruinous central authority. He was concerned that a "bill of rights," ensuring individual liberties, had not been made part of the Constitution. Mason called for a new convention to reconsider the whole question of the formation of a new government. Although Mason's motion was overwhelmingly voted down, opponents of the Constitution did not abandon the idea of a new convention. It was futilely suggested again and again for over 2 years.

One of the last major unresolved problems was the method of electing the executive. A number of proposals, including direct election by the people, by state legislatures, by state governors, and by the national legislature, were considered. The result was the electoral college, a master stroke of compromise, quaint and curious but politically expedient. The large states got proportional strength in the number of delegates, the state legislatures got the right of selecting delegates, and the House the right to choose the president in the event no candidate received a majority of electoral votes. Mason later predicted that the House would probably choose the president 19 times out of 20.

In the early days of September, with the exhausted delegates anxious to return home, compromise came easily. On September 8 the convention was ready to turn the Constitution over to a Committee of Style and Arrangement. Gouverneur Morris was the chief architect. Years later he wrote to Timothy Pickering: "That Instrument was written by the Fingers which wrote this letter." The Constitution was presented to the convention on September 12, and the delegates methodically began to consider each section. Although close votes followed on several articles, it was clear that the grueling work of the convention in the historic summer of 1787 was reaching its end.

Before the final vote on the Constitution on September 15, Edmund Randolph proposed that amendments be made by the state conventions and then turned over to another general convention for consideration. He was joined by George Mason and Elbridge Gerry. The three lonely allies were soundly rebuffed. Late in the afternoon the roll of the states was called on the Constitution, and from every delegation the word was "Aye."

On September 17 the members met for the last time, and the venerable Franklin had written a speech that was delivered by his colleague James Wilson. Appealing for unity behind the Constitution, Franklin declared, "I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats." With Mason, Gerry, and Randolph withstanding appeals to attach their signatures, the other delegates in the hall formally signed the Constitution, and the convention adjourned at 4 o'clock in the afternoon.

Weary from weeks of intense pressure but generally satisfied with their work, the delegates shared a farewell dinner at City Tavern. Two blocks away on Market Street, printers John Dunlap and David Claypoole worked into the night on the final imprint of the six-page Constitution, copies of which would leave Philadelphia on the morning stage. The debate over the nation's form of government was now set for the larger arena.

As the members of the convention returned home in the following days, Alexander Hamilton privately assessed the chances of the Constitution for ratification. In its favor were the support of Washington, commercial interests, men of property, creditors, and the belief among many Americans that the Articles of Confederation were inadequate. Against it were the opposition of a few influential men in the convention and state politicians fearful of losing power, the general revulsion against taxation, the suspicion that a centralized government would be insensitive to local interests, and the fear among debtors that a new government would "restrain the means of cheating Creditors."

The Federalists and the Anti-Federalists

Because of its size, wealth, and influence and because it was the first state to call a ratifying convention, Pennsylvania was the focus of national attention. The positions of the Federalists, those who supported the Constitution, and the anti-Federalists, those who opposed it, were printed and reprinted by scores of newspapers across the country. And passions in the state were most warm. When the Federalist-dominated Pennsylvania assembly lacked a quorum on September 29 to call a state ratifying convention, a Philadelphia mob, in order to provide the necessary numbers, dragged two anti-Federalist members from their lodgings through the streets to the State House where the bedraggled representatives were forced to stay while the assembly voted. It was a curious example of participatory democracy.

On October 5 anti-Federalist Samuel Bryan published the first of his "Centinel" essays in Philadelphia's Independent Gazetteer. Republished in newspapers in various states, the essays assailed the sweeping power of the central government, the usurpation of state sovereignty, and the absence of a bill of rights guaranteeing individual liberties such as freedom of speech and freedom of religion. "The United States are to be melted down," Bryan declared, into a despotic empire dominated by "well-born" aristocrats. Bryan was echoing the fear of many anti-Federalists that the new government would become one controlled by the wealthy established families and the culturally refined. The common working people, Bryan believed, were in danger of being subjugated to the will of an all-powerful authority remote and inaccessible to the people. It was this kind of authority, he believed, that Americans had fought a war against only a few years earlier.

The next day James Wilson, delivering a stirring defense of the Constitution to a large crowd gathered in the yard of the State House, praised the new government as the best "which has ever been offered to the world." The Scotsman's view prevailed. Led by Wilson, Federalists dominated in the Pennsylvania convention, carrying the vote on December 12 by a healthy 46 to 23.

The vote for ratification in Pennsylvania did not end the rancor and bitterness. Franklin declared that scurrilous articles in the press were giving the impression that Pennsylvania was "peopled by a set of the most unprincipled, wicked, rascally and quarrelsome scoundrels upon the face of the globe." And in Carlisle, on December 26, anti-Federalist rioters broke up a Federalist celebration and hung Wilson and the Federalist chief justice of Pennsylvania, Thomas McKean, in effigy; put the torch to a copy of the Constitution; and busted a few Federalist heads.

In New York the Constitution was under siege in the press by a series of essays signed "Cato." Mounting a counterattack, Alexander Hamilton and John Jay enlisted help from Madison and, in late 1787, they published the first of a series of essays now known as the Federalist Papers. The 85 essays, most of which were penned by Hamilton himself, probed the weaknesses of the Articles of Confederation and the need for an energetic national government. Thomas Jefferson later called the Federalist Papers the "best commentary on the principles of government ever written."

Against this kind of Federalist leadership and determination, the opposition in most states was disorganized and generally inert. The leading spokesmen were largely state-centered men with regional and local interests and loyalties. Madison wrote of the Massachusetts anti-Federalists, "There was not a single character capable of uniting their wills or directing their measures. . . . They had no plan whatever." The anti-Federalists attacked wildly on several fronts: the lack of a bill of rights, discrimination against southern states in navigation legislation, direct taxation, the loss of state sovereignty. Many charged that the Constitution represented the work of aristocratic politicians bent on protecting their own class interests. At the Massachusetts convention one delegate declared, "These lawyers, and men of learning and moneyed men, that . . . make us poor illiterate people swallow down the pill . . . they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!" Some newspaper articles, presumably written by anti-Federalists, resorted to fanciful predictions of the horrors that might emerge under the new Constitution pagans and deists could control the government; the use of Inquisition-like torture could be instituted as punishment for federal crimes; even the pope could be elected president.

One anti-Federalist argument gave opponents some genuine difficulty--the claim that the territory of the 13 states was too extensive for a representative government. In a republic embracing a large area, anti-Federalists argued, government would be impersonal, unrepresentative, dominated by men of wealth, and oppressive of the poor and working classes. Had not the illustrious Montesquieu himself ridiculed the notion that an extensive territory composed of varying climates and people, could be a single republican state? James Madison, always ready with the Federalist volley, turned the argument completely around and insisted that the vastness of the country would itself be a strong argument in favor of a republic. Claiming that a large republic would counterbalance various political interest groups vying for power, Madison wrote, "The smaller the society the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party and the more easily will they concert and execute their plans of oppression." Extend the size of the republic, Madison argued, and the country would be less vulnerable to separate factions within it.

Ratification

By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution--Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, withFederalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168. The revolutionary leader, John Hancock, elected to preside over the Massachusetts ratifying convention but unable to make up his mind on the Constitution, took to his bed with a convenient case of gout. Later seduced by the Federalists with visions of the vice presidency and possibly the presidency, Hancock, whom Madison noted as "an idolater of popularity," suddenly experienced a miraculous cure and delivered a critical block of votes. Although Massachusetts was now safely in the Federalist column, the recommendation of a bill of rights was a significant victory for the anti-Federalists. Six of the remaining states later appended similar recommendations.

When the New Hampshire convention was adjourned by Federalists who sensed imminent defeat and when Rhode Island on March 24 turned down the Constitution in a popular referendum by an overwhelming vote of 10 to 1, Federalist leaders were apprehensive. Looking ahead to the Maryland convention, Madison wrote to Washington, "The difference between even a postponement and adoption in Maryland may . . . possibly give a fatal advantage to that which opposes the constitution." Madison had little reason to worry. The final vote on April 28 63 for, 11 against. In Baltimore, a huge parade celebrating the Federalist victory rolled through the downtown streets, highlighted by a 15-foot float called "Ship Federalist." The symbolically seaworthy craft was later launched in the waters off Baltimore and sailed down the Potomac to Mount Vernon.

On July 2, 1788, the Confederation Congress, meeting in New York, received word that a reconvened New Hampshire ratifying convention had approved the Constitution. With South Carolina's acceptance of the Constitution in May, New Hampshire thus became the ninth state to ratify. The Congress appointed a committee "for putting the said Constitution into operation."

In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.

The Bill of Rights

The call for a bill of rights had been the anti-Federalists' most powerful weapon. Attacking the proposed Constitution for its vagueness and lack of specific protection against tyranny, Patrick Henry asked the Virginia convention, "What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances." The anti-Federalists, demanding a more concise, unequivocal Constitution, one that laid out for all to see the right of the people and limitations of the power of government, claimed that the brevity of the document only revealed its inferior nature. Richard Henry Lee despaired at the lack of provisions to protect "those essential rights of mankind without which liberty cannot exist." Trading the old government for the new without such a bill of rights, Lee argued, would be trading Scylla for Charybdis.

A bill of rights had been barely mentioned in the Philadelphia convention, most delegates holding that the fundamental rights of individuals had been secured in the state constitutions. James Wilson maintained that a bill of rights was superfluous because all power not expressly delegated to thenew government was reserved to the people. It was clear, however, that in this argument the anti-Federalists held the upper hand. Even Thomas Jefferson, generally in favor of the new government, wrote to Madison that a bill of rights was "what the people are entitled to against every government on earth."

By the fall of 1788 Madison had been convinced that not only was a bill of rights necessary to ensure acceptance of the Constitution but that it would have positive effects. He wrote, on October 17, that such "fundamental maxims of free Government" would be "a good ground for an appeal to the sense of community" against potential oppression and would "counteract the impulses of interest and passion."

Madison's support of the bill of rights was of critical significance. One of the new representatives from Virginia to the First Federal Congress, as established by the new Constitution, he worked tirelessly to persuade the House to enact amendments. Defusing the anti-Federalists' objections to the Constitution, Madison was able to shepherd through 17 amendments in the early months of the Congress, a list that was later trimmed to 12 in the Senate. On October 2, 1789, President Washington sent to each of the states a copy of the 12 amendments adopted by the Congress in September. By December 15, 1791, three-fourths of the states had ratified the 10 amendments now so familiar to Americans as the "Bill of Rights."

Benjamin Franklin told a French correspondent in 1788 that the formation of the new government had been like a game of dice, with many players of diverse prejudices and interests unable to make any uncontested moves. Madison wrote to Jefferson that the welding of these clashing interests was "a task more difficult than can be well conceived by those who were not concerned in the execution of it." When the delegates left Philadelphia after the convention, few, if any, were convinced that the Constitution they had approved outlined the ideal form of government for the country. But late in his life James Madison scrawled out another letter, one never addressed. In it he declared that no government can be perfect, and "that which is the least imperfect is therefore the best government."

The Document Enshrined

The fate of the United States Constitution after its signing on September 17, 1787, can be contrasted sharply to the travels and physical abuse of America's other great parchment, the Declaration of Independence . As the Continental Congress, during the years of the revolutionary war, scurried from town to town, the rolled-up Declaration was carried along. After the formation of the new government under the Constitution, the one-page Declaration, eminently suited for display purposes, graced the walls of various government buildings in Washington, exposing it to prolonged damaging sunlight. It was also subjected to the work of early calligraphers responding to a demand for reproductions of the revered document. As any visitor to the National Archives can readily observe, the early treatment of the now barely legible Declaration took a disastrous toll. The Constitution, in excellent physical condition after more than 200 years, has enjoyed a more serene existence. By 1796 the Constitution was in the custody of the Department of State along with the Declaration and traveled with the federal government from New York to Philadelphia to Washington. Both documents were secretly moved to Leesburg, VA, before the imminent attack by the British on Washington in 1814. Following the war, the Constitution remained in the State Department while the Declaration continued its travels--to the Patent Office Building from 1841 to 1876, to Independence Hall in Philadelphia during the Centennial celebration, and back to Washington in 1877. On September 29, 1921, President Warren Harding issued an Executive order transferring the Constitution and the Declaration to the Library of Congress for preservation and exhibition. The next day Librarian of Congress Herbert Putnam, acting on authority of Secretary of State Charles Evans Hughes, carried the Constitution and the Declaration in a Model-T Ford truck to the library and placed them in his office safe until an appropriate exhibit area could be constructed. The documents were officially put on display at a ceremony in the library on February 28, 1924. On February 20, 1933, at the laying of the cornerstone of the future National Archives Building, President Herbert Hoover remarked, "There will be aggregated here the most sacred documents of our history--the originals of the Declaration of Independence and of the Constitution of the United States." The two documents however, were not immediately transferred to the Archives. During World War II both were moved from the library to Fort Knox for protection and returned to the library in 1944. It was not until successful negotiations were completed between Librarian of Congress Luther Evans and Archivist of the United States Wayne Grover that the transfer to the National Archives was finally accomplished by special direction of the Joint Congressional Committee on the Library.

On December 13, 1952, the Constitution and the Declaration were placed in helium-filled cases, enclosed in wooden crates, laid on mattresses in an armored Marine Corps personnel carrier, and escorted by ceremonial troops, two tanks, and four servicemen carrying submachine guns down Pennsylvania and Constitution avenues to the National Archives. Two days later, President Harry Truman declared at a formal ceremony in the Archives Exhibition Hall.

"We are engaged here today in a symbolic act. We are enshrining these documents for future ages. This magnificent hall has been constructed to exhibit them, and the vault beneath, that we have built to protect them, is as safe from destruction as anything that the wit of modern man can devise. All this is an honorable effort, based upon reverence for the great past, and our generation can take just pride in it."

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Constitution

By: History.com Editors

Updated: March 28, 2023 | Original: October 27, 2009

Signing of the United States Constitution(Original Caption) The signing of the United States Constitution in 1787. Undated painting by Stearns.

The Constitution of the United States established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens.

It was signed on September 17, 1787, by delegates to the Constitutional Convention in Philadelphia. Under America’s first governing document, the Articles of Confederation, the national government was weak and states operated like independent countries. At the 1787 convention, delegates devised a plan for a stronger federal government with three branches—executive, legislative and judicial—along with a system of checks and balances to ensure no single branch would have too much power.

The Preamble to the U.S. Constitution

The Preamble outlines the Constitution's purpose and guiding principles. It reads:

The Bill of Rights were 10 amendments guaranteeing basic individual protections, such as freedom of speech and religion, that became part of the Constitution in 1791. To date, there are 27 constitutional amendments.

Articles of Confederation

America’s first constitution, the Articles of Confederation , was ratified in 1781, a time when the nation was a loose confederation of states, each operating like independent countries. The national government was comprised of a single legislature, the Congress of the Confederation; there was no president or judicial branch.

The Articles of Confederation gave Congress the power to govern foreign affairs, conduct war and regulate currency; however, in reality these powers were sharply limited because Congress had no authority to enforce its requests to the states for money or troops.

Did you know? George Washington was initially reluctant to attend the Constitutional Convention. Although he saw the need for a stronger national government, he was busy managing his estate at Mount Vernon, suffering from rheumatism and worried that the convention wouldn't be successful in achieving its goals.

Soon after America won its independence from Great Britain with its 1783 victory in the American Revolution , it became increasingly evident that the young republic needed a stronger central government in order to remain stable.

In 1786, Alexander Hamilton , a lawyer and politician from New York , called for a constitutional convention to discuss the matter. The Confederation Congress, which in February 1787 endorsed the idea, invited all 13 states to send delegates to a meeting in Philadelphia.

Forming a More Perfect Union

On May 25, 1787, the Constitutional Convention opened in Philadelphia at the Pennsylvania State House, now known as Independence Hall, where the Declaration of Independence had been adopted 11 years earlier. There were 55 delegates in attendance, representing all 13 states except Rhode Island , which refused to send representatives because it did not want a powerful central government interfering in its economic business. George Washington , who’d become a national hero after leading the Continental Army to victory during the American Revolution, was selected as president of the convention by unanimous vote.

The delegates (who also became known as the “framers” of the Constitution) were a well-educated group that included merchants, farmers, bankers and lawyers. Many had served in the Continental Army, colonial legislatures or the Continental Congress (known as the Congress of the Confederation as of 1781). In terms of religious affiliation, most were Protestants. Eight delegates were signers of the Declaration of Independence, while six had signed the Articles of Confederation.

At age 81, Pennsylvania’s Benjamin Franklin (1706-90) was the oldest delegate, while the majority of the delegates were in their 30s and 40s. Political leaders not in attendance at the convention included Thomas Jefferson (1743-1826) and John Adams (1735-1826), who were serving as U.S. ambassadors in Europe. John Jay (1745-1829), Samuel Adams (1722-1803) and John Hancock (1737-93) were also absent from the convention. Virginia’s Patrick Henry (1736-99) was chosen to be a delegate but refused to attend the convention because he didn’t want to give the central government more power, fearing it would endanger the rights of states and individuals.

Reporters and other visitors were barred from the convention sessions, which were held in secret to avoid outside pressures. However, Virginia’s James Madison (1751-1836) kept a detailed account of what transpired behind closed doors. (In 1837, Madison’s widow Dolley sold some of his papers, including his notes from the convention debates, to the federal government for $30,000.)

Debating the Constitution

The delegates had been tasked by Congress with amending the Articles of Confederation; however, they soon began deliberating proposals for an entirely new form of government. After intensive debate, which continued throughout the summer of 1787 and at times threatened to derail the proceedings, they developed a plan that established three branches of national government–executive, legislative and judicial. A system of checks and balances was put into place so that no single branch would have too much authority. The specific powers and responsibilities of each branch were also laid out.

Among the more contentious issues was the question of state representation in the national legislature. Delegates from larger states wanted population to determine how many representatives a state could send to Congress, while small states called for equal representation. The issue was resolved by the Connecticut Compromise, which proposed a bicameral legislature with proportional representation of the states in the lower house ( House of Representatives ) and equal representation in the upper house (Senate).

Another controversial topic was slavery. Although some northern states had already started to outlaw the practice, they went along with the southern states’ insistence that slavery was an issue for individual states to decide and should be kept out of the Constitution. Many northern delegates believed that without agreeing to this, the South wouldn’t join the Union. For the purposes of taxation and determining how many representatives a state could send to Congress, it was decided that enslaved people would be counted as three-fifths of a person. Additionally, it was agreed that Congress wouldn’t be allowed to prohibit the slave trade before 1808, and states were required to return fugitive enslaved people to their owners.

Ratifying the Constitution

By September 1787, the convention’s five-member Committee of Style (Hamilton, Madison, William Samuel Johnson of Connecticut, Gouverneur Morris of New York, Rufus King of Massachusetts ) had drafted the final text of the Constitution, which consisted of some 4,200 words. On September 17, George Washington was the first to sign the document. Of the 55 delegates, a total of 39 signed; some had already left Philadelphia, and three–George Mason (1725-92) and Edmund Randolph (1753-1813) of Virginia , and Elbridge Gerry (1744-1813) of Massachusetts–refused to approve the document. In order for the Constitution to become law, it then had to be ratified by nine of the 13 states.

James Madison and Alexander Hamilton, with assistance from John Jay, wrote a series of essays to persuade people to ratify the Constitution. The 85 essays, known collectively as “The Federalist” (or “The Federalist Papers”), detailed how the new government would work, and were published under the pseudonym Publius (Latin for “public”) in newspapers across the states starting in the fall of 1787. (People who supported the Constitution became known as Federalists, while those opposed it because they thought it gave too much power to the national government were called Anti-Federalists.)

Beginning on December 7, 1787, five states– Delaware , Pennsylvania, New Jersey , Georgia and Connecticut–ratified the Constitution in quick succession. However, other states, especially Massachusetts, opposed the document, as it failed to reserve un-delegated powers to the states and lacked constitutional protection of basic political rights, such as freedom of speech, religion and the press.

In February 1788, a compromise was reached under which Massachusetts and other states would agree to ratify the document with the assurance that amendments would be immediately proposed. The Constitution was thus narrowly ratified in Massachusetts, followed by Maryland and South Carolina . On June 21, 1788, New Hampshire became the ninth state to ratify the document, and it was subsequently agreed that government under the U.S. Constitution would begin on March 4, 1789. George Washington was inaugurated as America’s first president on April 30, 1789. In June of that same year, Virginia ratified the Constitution, and New York followed in July. On February 2, 1790, the U.S. Supreme Court held its first session, marking the date when the government was fully operative.

Rhode Island, the last holdout of the original 13 states, finally ratified the Constitution on May 29, 1790.

The Bill of Rights

In 1789, Madison, then a member of the newly established U.S. House of Representatives , introduced 19 amendments to the Constitution. On September 25, 1789, Congress adopted 12 of the amendments and sent them to the states for ratification. Ten of these amendments, known collectively as the Bill of Rights , were ratified and became part of the Constitution on December 10, 1791. The Bill of Rights guarantees individuals certain basic protections as citizens, including freedom of speech, religion and the press; the right to bear and keep arms; the right to peaceably assemble; protection from unreasonable search and seizure; and the right to a speedy and public trial by an impartial jury. For his contributions to the drafting of the Constitution, as well as its ratification, Madison became known as “Father of the Constitution.”

To date, there have been thousands of proposed amendments to the Constitution. However, only 17 amendments have been ratified in addition to the Bill of Rights because the process isn’t easy–after a proposed amendment makes it through Congress, it must be ratified by three-fourths of the states. The most recent amendment to the Constitution, Article XXVII, which deals with congressional pay raises, was proposed in 1789 and ratified in 1992.

The Constitution Today

In the more than 200 years since the Constitution was created, America has stretched across an entire continent and its population and economy have expanded more than the document’s framers likely ever could have envisioned. Through all the changes, the Constitution has endured and adapted.

The framers knew it wasn’t a perfect document. However, as Benjamin Franklin said on the closing day of the convention in 1787: “I agree to this Constitution with all its faults, if they are such, because I think a central government is necessary for us… I doubt too whether any other Convention we can obtain may be able to make a better Constitution.” Today, the original Constitution is on display at the National Archives in Washington, D.C. Constitution Day is observed on September 17, to commemorate the date the document was signed.

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Ratification of the Constitution

Digital Encyclopedia

George Mason

Renowned for his authorship of the Virginia Declaration of Rights,and the Virginia Bill of Rights and Constitution, George Mason became an advocate for the rights of colonists by the 1760s and flourished through the 1770s. Later in life, Mason remained politically independent, refusing to sign the 1787 Constitution.

Justice Kennedy on George Washington

The Honorable Anthony Kennedy, Associate Justice of the United States Supreme Court, discusses the vital role that George Washington played in the establishment of the Constitution and the office of the President of the United States.

Shays' Rebellion

Shays' Rebellion, arising in the Massachusetts countryside during 1786 and 1787, was inspired by the fiscal crisis following the Revolution. The Rebellion strengthened calls to reform the Articles of Confederation, leading eventually to the Constitutional Convention.

Howard Chandler Christy's interpretation of the signing of the Constitution, painted in 1940.

Washington also sent copies to Benjamin Harrison, Patrick Henry , and Edmund Randolph , the three most recent governors of Virginia who each had serious reservations about the Constitution. Once back home at Mount Vernon , Washington spent his mornings writing letters to political leaders throughout the nation, urging them to support the Constitution. At the same time, Washington knew that if the Constitution was adopted, he would most likely become the first President of the United States and be called away from his beloved estate.

In his correspondence, Washington clearly laid out the reasons why he believed the Constitution should be ratified. The unity of the nation had been sorely tested under the Articles of Confederation. Washington, in fact, feared the current government was so powerless that it would soon dissolve either from deteriorating support of the people or from the fact that states would no longer bother to send representatives to the Confederation Congress. While the Constitution was not perfect, it created a stronger central government that included a Congress with the power to tax, a President who would act as the nation’s chief executive, and a national court system. Washington urged people who had doubts about the Constitution to support it, reminding them that once it was approved it could be amended.

By defending the Constitution, Washington parted company with older revolutionaries such as George Mason , and allied himself with younger political leaders like James Madison . Washington opposed many of his fellow planters who believed the Constitution would destroy the republic. As Washington explained in a letter to the Marquis de Lafayette, he found it "a little strange that the men of large property in the south should be more afraid that the constitution should produce an aristocracy or a monarchy than the genuine democratical people of the east." 1 Deeply in debt himself, Washington was also troubled that so many Virginians believed they had a better chance for prosperity in a weak nation rather than a strong one.

At the start of the ratification convention in Richmond in May of 1788, eight states had already approved the Constitution. While Washington did not attend the convention, he stayed in contact with Madison who defended the document in a series of brilliant debates. When the vote was finally taken on June 25, the Constitution was approved by a margin of 89 to 79.

Washington headed for a celebration in Alexandria , believing that Virginia had been the ninth state to approve the document. Even when news arrived that New Hampshire had approved the Constitution immediately before Virginia, the celebrations went on. Many people agreed with James Monroe, that Washington’s influence had "carried this government." 2 But a more humble Washington believed that "Providence" had once again smiled on the American people. 3

Mary Stockwell, Ph.D.

Notes: 1. "George Washington to Marquis de Lafayette, 19 June 1788," quoted in Joseph Ellis, His Excellency: George Washington (New York: Alfred A. Knopf, 2004), 181.

2. "James Monroe to Thomas Jefferson, 12 July 1788," quoted in Ron Chernow, George Washington: A Life (New York: Penguin Press, 2010), 546.

3. "George Washington to Charles Cotesworth Pinckney, 28 June 1788," quoted in Douglas Southall Freeman, George Washington: A Biography, Volume Six, Patriot and President (New York: Charles Scribner’s Sons, 1954), 140.

Bibliography: Chernow, Ron. Washington: A Life. New York: Penguin Press, 2010.

Ellis, Joseph. His Excellency: George Washington. New York: Alfred A. Knopf, 2004.

Freeman, Douglas Southall. George Washington: A Biography, Volume Six, Patriot and President. New York: Charles Scribner's Sons, 1954.

Maier, Pauline. Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010.

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The Ratification Debate on the Constitution

Written by: Bill of Rights Institute

By the end of this section, you will:.

Explain the differing ideological positions on the structure and function of the federal government

Suggested Sequencing

Use this Narrative with the Were the Anti-Federalists Unduly Suspicious or Insightful Political Thinkers? Point-Counterpoint and the Federalist/Anti-Federalist Debate on Congress’s Powers of Taxation DBQ Lesson to have students analyze the debate between Federalists and Anti-Federalists.

On September 19, 1787, the Pennsylvania Packet newspaper published the draft of the Constitution for the consideration of the people and their representatives. On September 28, the Confederation Congress voted to send the Constitution to the state legislatures as written, so state conventions could be called to decide whether to ratify the new framework of government.

During the year-long debates over ratification, supporters of the Constitution called themselves Federalists; as a result, their opponents were known as Anti-Federalists. At the center of the often-contentious arguments that took place in homes, taverns, and on the printed page was the federal principle of balancing national and state power. Federalists defended the Constitution’s strengthened national government, with its greater congressional powers, more powerful executive, and independent judiciary. They argued that the new government supported the principles of separation of powers, checks and balances, and federalism. Anti-Federalists, on the other hand, worried that the proposed constitution represented a betrayal of the principles of the American Revolution. Had not Americans fought a war against the consolidation of power in a distant, central government that claimed unlimited powers of taxation? They feared a large republic in which the government, like the Empire from which they had declared independence, was unresponsive to the people. They also feared that a corrupt senate, judiciary, and executive would conspire to form an aristocracy. Finally, they argued against the absence of a bill of rights. States had them, in no small part because they remembered the English Bill of Rights of 1689, which had helped focus attention on the ways in which the British government abused its power.

Through September and October, various Anti-Federalists published essays under pseudonyms like Brutus, Cato, and the Federal Farmer in New York newspapers critiquing the Constitution. Although they did not coordinate their efforts, a coherent set of principles about government and opposition to the proposed Constitution emerged. Alexander Hamilton noted that the “artillery of [the Constitution’s] opponents makes some impression.”

In mid-October, for a series of essays he planned to defend the Constitution from critics, Hamilton enlisted the contributions of Madison, the “father of the Constitution,” as well as John Jay, the president of the Continental Congress and a New York diplomat. The first of these Federalist essays was published in a New York newspaper, under the pseudonym Publius, on October 27. It was addressed to the people of New York but was aimed at the delegates to the state’s Ratifying Convention. In it, Hamilton described the meaning of the choice the states would make:

It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

A portrait of Alexander Hamilton is shown.

Alexander Hamilton, shown in an 1806 portrait by John Trumbull, was the driving force behind The Federalist Paper sand wrote fifty-one of the essays arguing for ratification.

By mid-January, 1788, five states (Connecticut, Delaware, Georgia, New Jersey, and Pennsylvania) had ratified the Constitution. The Federalists were building momentum toward the nine states they needed to win, but they knew the main opposition would come from Anti-Federalists in large and powerful states, including Massachusetts, New York, and Virginia.

The Anti-Federalists were also mounting an effective opposition in essays and debates. Some demanded prior amendments to be sent to a second convention before they would accept the new government. During the debate in Massachusetts, opposition forced the Federalists to promise to consider amendments protecting the liberties of the people after the Constitution was ratified as written. On February 6, Massachusetts became the sixth state to approve the Constitution by a narrow vote of 187 to 168.

In New Hampshire, the Federalists thought they did not have enough votes to ratify, so they strategically adjourned the convention until June so that they could muster more support. Two other states, Maryland and South Carolina, met that spring and overwhelmingly ratified the Constitution, bringing the total to eight. Still, to be considered legitimate the Constitution would need the support of Virginia and New York, because of their political and economic influence and geographical location, even if the approval of nine other states met the constitutional threshold for the new government to go into operation.

On March 22, Hamilton and Madison arranged for the first thirty-six Federalist essays to be published in book form and distributed copies to friends in hope of influencing the delegates to the New York and Virginia ratifying conventions. Because the outcome remained highly uncertain, a second volume including the rest of the eighty-five essays was published on May 28. George Washington praised The Federalist for throwing “new lights upon the science of government” and giving “the rights of man a full and fair discussion.” Thomas Jefferson said it was “the best commentary on the principles of government which ever was written.” The Anti-Federalist essays contributed important reflections on human nature and the character of a republican government in making arguments about why the writers thought the proposed Constitution dangerously expanded the powers of the central government.

When the Virginia Convention met on June 2, a titanic debate took place as two Federalist masters of political debate, Madison and John Marshall, clashed with George Mason and the fiery orator Patrick Henry. Among other Virginians, Washington stayed above the debate, although everyone knew he supported the Constitution, and Jefferson, then in Paris, at first opposed and then supported ratification with prior amendments, because he favored a bill of rights.

Railing against the Constitution, Henry warned that the states would lose their sovereignty in a Union of “we the people” instead of “we the states.” He cautioned that a powerful national government would violate natural rights and civil liberties, thus destroying “the rights of conscience, trial by jury, liberty of the press . . . all pretentions to human rights and privileges, are rendered insecure, if not lost, by this change.” Henry also thundered that the president would lead a standing army against the people.

Madison countered with a line-by-line exposition of the reasoning behind each clause of the Constitution. On June 25, the Virginia Convention voted 89 to 79 for ratification.

Meanwhile, the Anti-Federalists dominated the New York Convention three to one. Hamilton passionately defended the Constitution and urged his allies in Virginia and New Hampshire to send word of the outcomes in those two states by express rider to influence the New York debate. New Yorkers soon learned that the Constitution had officially become the fundamental law of the land for the states adopting it. The question was now whether New York would join the new federal union. On July 26, by a narrow vote of 30 to 27, New York answered in the affirmative, conditionally ratifying the Constitution with a call for another convention to propose a bill of rights. Only after Congress voted in 1789 to send amendments to the states for approval did North Carolina and Rhode Island vote to ratify the new Constitution.

The sovereign people participated in a great deliberative moment in which they ultimately decided to accept a new Constitution with a central government wielding greater powers to protect their rights, safety, and happiness. The formal and informal deliberations about the principles of government defined the republican nature of the new U.S. government. Meanwhile, the spirit of compromise that yielded not only ratification but also, at the urging of Anti-Federalists, the adoption of the Bill of Rights, reflected genuine patriotism by the people who served the public good and suggested that the Americans were capable of self-government.

Review Questions

1. Who of the following were key advocates for the Constitution?

Alexander Hamilton, John Jay, and James Madison
John Jay, George Mason, and James Madison
Alexander Hamilton, James Madison, and Edmund Randolph
George Mason, Patrick Henry, and Edmund Randolph

2. Who of the following refused to sign the Constitution because, in their opinion, it gave too much power to the federal government?

George Mason, Elbridge Gerry, and Edmund Randolph

3. What key feature, which many Anti-Federalists argued was essential, was missing from the original Constitution?

A due process clause
A decision on the issue of the slave trade
A bill of rights
Multiple branches of government

4. Which of the following was the primary source of disagreement between the Federalists and the Anti-Federalists when debating the merits of the Constitution?

Inclusion of clauses that acknowledge slavery and included slaves in representation
Size and scope of the federal government balanced with that of the states
Ability to conduct foreign affairs at the federal level only
Possibility of the legislative branch requiring taxes at the state level

5. The Anti-Federalists’ distrust of corrupt elite politicians is best exemplified by their adamant insistence on the

electoral college, which would elect the president
Supreme Court Justices, who would be elected not appointed
Bill of Rights, which articulated the rights of each person
executive position, which would be eligible for reelection

6. One advantage the Federalists had during the ratification debate was that

many smaller state governments were open to the concept of a stronger federal government
highly organized authors published essay after essay supporting and explaining the new form of government
the large and influential states of New York and Virginia were eager to ratify the Constitution as soon as possible
almost unanimous support for the Constitution existed in every state

7. Many Anti-Federalists argued that the Constitution’s strong national government was

absolutely necessary to protect the sovereignty of the nation
too similar to the monarchy from which colonists had fought to be free
carefully crafted to prevent any abuses of private citizens
akin to the Articles of Confederation, which required no change

8. How did the debate for ratification ultimately end?

Not enough states voted to ratify and the Constitution did not become the government of the United States,
The minimum number of states ratified the Constitution, so it became the law of the land, but only for the states that accepted it.
Each state ultimately ratified the Constitution, despite close votes and thorough debates.
Debates continue on the merits of the Constitution, and a few states still need to hold their ratifying convention.

Free Response Questions

How did the ratification debate demonstrate republicanism in the United States’ founding?
How was the deliberative process of making and ratifying the Constitution a key moment in the history of republics?

AP Practice Questions

An engraving titled The Federalist Pillars. Six pillars are shown representing states, with the sixth pillar falling over. Below the pillars reads United they stand - divided fall.

The Federal Pillars.

1. The image shown best supports which argument of the ratification debate?

The need for a bill of rights to curtail the powers of the central government and guarantee people’s individual liberties
The potential destruction of deliberation and creation of rival factions
The view that states need to stand individually without an overarching, omnipotent central government
The need for states to support and ratify the Constitution to guarantee the existence of a republican union

“In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.”

Alexander Hamilton, The Federalist Papers: No. 1 , October 27, 1787

2. Which of the following best describes the purpose of The Federalist essays?

To promote the advantages of states’ rights
To convince delegates and people to support the Constitution to secure ratification
To narrate the ongoing deliberations at the ratification conventions
To outline characteristics of a new form of government to be included in the Constitution

3. Which of the following is an accurate statement about Anti-Federalist and Federalist beliefs in constitutional principles?

Anti-Federalists argued for the value of limited central government, whereas Federalists maintained that natural rights to life, liberty, and property would be best protected under a strong central government.
Anti-Federalists supported the idea of a strong executive elected by the consent of the governed, whereas Federalists argued for states’ rights and cooperation of the states as a confederacy.
Anti-Federalists asserted that the rule of law would best serve the people of the United States, whereas Federalists promoted a limited government and cooperation of the states.
Anti-Federalists advocated for republicanism and self-governance, whereas Federalists argued that a representative government could be legitimized only through cooperation with international allies.

“Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The United States Bill of Rights, 1789

4. Which of the following pieces of outside evidence provides context for this document?

Many citizens were concerned that individual rights were not expressed in the Constitution and demanded the addition.
The Founders wanted to follow in the footsteps of Great Britain by adding a bill of rights.
Women felt strongly their needs were not being met by the Constitution and held a convention of their own, resulting in this document.
After intense debate, state conventions decided this document would replace the Constitution.

5. Which of the following did not influence the addition of the Bill of Rights?

Actions taken by the British government before and during the Revolution inspired some of the amendments.
State constitutions had articulated many of these rights prior to the Constitution.
Political factions demanded clarification of inalienable rights to support the Constitution’s ratification.
The French alliance inspired the founders to adopt the French form of government.

6. Which of the following explains why the amendments provided were not included in the original Constitution?

State delegations at the Convention argued that additional amendments were unnecessary because most states already had a Bills of Rights.
The Founders published the Constitution in newspapers and forgot to include the page with these amendments.
The Founders were influenced by the British tradition of unwritten government that relied on precedent.
Delegates at the convention were unable to reach a quorum to vote on these items, because the summer was over and many had already headed home.

7. Which political faction primarily advocated the document excerpted previously?

Federalists
Anti-Federalists

Primary Sources

Hamilton, Alexander. The Federalist 1 . American History. University of Groningen. http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-1.php

U.S. Constitution . Yale Law School. http://avalon.law.yale.edu/18th_century/usconst.asp

Suggested Resources

Allen, W.B. and Gordon Lloyd, eds. The Essential Anti-Federalist . Lanham: Rowman & Littlefield, 2002.

Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles, and Letters During the Struggle over Ratification . 2 vols. New York: Library of America, 1993.

Carey, George W. and James McClellan. The Federalist: The Gideon Edition . Indianapolis: Liberty Fund, 2001.

Cornell, Saul. The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 . Chapel Hill: University of North Carolina Press, 1999.

Ketcham, Ralph, ed. The Anti-Federalist Papers and the Constitutional Convention Debates . New York: New American Library, 1986.

Lloyd, Gordon. “The Federalist-Antifederalist Debate.” TeachingAmericanHistory.org. http://teachingamericanhistory.org/founding/

Lloyd, Gordon. “The Ratification of the United States Constitution.” TeachingAmericanHistory.org. http://teachingamericanhistory.org/founding/

Maier, Pauline. Ratification: The People Debate the Constitution, 1787-1788 . New York: Simon & Schuster, 2010.

Main, Jackson Turner. The Anti-Federalists: Critics of the Constitution, 1781-1788 . Chapel Hill: University of North Carolina Press, 1961.

Meyerson, Michael I. Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World . New York: Basic, 2008.

Morris, Richard B. Witnesses at the Creation: Hamilton, Madison, Jay, and the Constitution. New York: Holt, Rinehart, and Winston, 1985.

Rakove, Jack. Original Meanings: Politics and Ideas in the Making of the Constitution . New York: Vintage, 1996.

Storing, Herbert. What the Anti-Federalists were For: The Political Thought of the Opponents of the Constitution</e

Life, Liberty, and the Pursuit of Happiness

In our resource history is presented through a series of narratives, primary sources, and point-counterpoint debates that invites students to participate in the ongoing conversation about the American experiment.

Alexander Hamilton and the Ratification of the Constitution

By The Gilder Lehrman Institute of American History

Americans argued and even fought over the adoption of the United States Constitution. Alexander Hamilton and the other Federalists supported the new form of government. Anti-Federalists opposed it.

Philadelphia, PA

Independence Hall In 1787, the Constitutional Convention met at Independence Hall to improve the Articles of Confederation, which had been ratified in 1781. Almost immediately, the delegates decided to write a new constitution instead of revising the existing form of government. They struggled to create a document that would balance the rights of states and individuals with the powers of a central government. For three months, they proposed articles, made speeches, argued, and compromised.

Alexander Hamilton (The Metropolitan Museum of Art) (ca. 1804-1806) by Trumbull, John (1756-1843) The Gilder Lehrman Institute of American History

Portrait of Alexander Hamilton by Jonathan Trumbull, 1804-1806 Most delegates agreed that the country needed executive, legislative, and judicial branches. However, they disagreed on how the members would be selected and how the states would be represented in Congress. The Virginia Plan of representation favored large states. The New Jersey Plan favored smaller states. Hamilton proposed an alternative to the Virginia and New Jersey Plans.

John Lansing Jr.'s notes on Alexander Hamilton's speech in the Constitutional Convention The Gilder Lehrman Institute of American History

Alexander Hamilton’s Plan of Government, June 18, 1787 While there is no existing copy of Hamilton’s speech, the notes taken by several delegates, including this set by John Lansing, survive. Hamilton spoke for six hours and angered many delegates. The most controversial part of Hamilton’s plan called for the president and senators to serve for life “during good Behaviour.” Many saw this as a form of monarchy and denounced Hamilton. Historians have argued that Hamilton introduced his radical plan to make the Virginia Plan more acceptable to the delegates.

New York, NY

Hanover Square Hanover Square was named after King George I and the House of Hanover. During the eighteenth century, it earned the nickname “Printing House Square” because many printers worked in the area. Once the Convention drafted the Constitution, the battle to ratify it began in the newspapers. Federalists wrote articles supporting ratification, while anti-Federalists expressed fears that the strong central government would take away the liberties won in the Revolution.

Title page of the first printing of the Federalist Papers (Courtesy of Rare Books and Special Collections Division in Madison's Treasures ) (1904-11-22) The Gilder Lehrman Institute of American History

The Federalist Papers, 1787-1788 James Madison, John Jay, and Alexander Hamilton were leaders of the Federalists. Together, they wrote 85 essays published under the pseudonym “Publius” in New York newspapers. Hamilton wrote fifty-one of the essays, Madison twenty-nine, and Jay five. As New York prepared for the state’s ratification convention, J. & A. McLean in Hanover Square collected all the essays and printed them in a book. The Federalist Papers were essential in convincing Americans across the country to support the Constitution.

Federalist papers, Number 51 (February 6, 1788) by Madison, James (1751-1836) The Gilder Lehrman Institute of American History

Federalist Number 51, February 6, 1788 In Federalist Number 51, James Madison explained how the system of checks and balances would safeguard the country from a corrupt government. “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government ... If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Gunston Hall George Mason, who lived in this house in Virginia, helped write the Virginia Declaration of Rights in 1776, which spelled out the liberties of individual citizens. As one of Virginia’s delegates to the Constitutional Convention, Mason was concerned about the amount of power being given to the federal government. During the Convention, he argued that only a bill of rights would protect citizens from a strong central government that could pass laws to limit their freedom.

George Mason (New York Public Library) (3/2/1905) by Rosenthal, Albert (1863-1939) The Gilder Lehrman Institute of American History

George Mason Opposes the Constitution The delegates rejected Mason’s proposed bill of rights. On August 31, 1787, Mason declared that he “would sooner cut off his right hand than put it to the constitution as it now stands.” He was one of only three delegates who refused to sign the Constitution.

The Freeman's Journal, objections of George Mason to the Constitution (December 5, 1787) The Gilder Lehrman Institute of American History

Objections to the Constitution Published by Mason Just like Hamilton and the Federalists, the anti-Federalists took their arguments to the press. Unlike most politicians of the time, George Mason boldly used his real name rather than a pseudonym. He argued that without a bill of rights, the government could become corrupt and destroy the liberty of citizens: “It is at present impossible to foresee whether [the Constitution] will ... produce a monarchy, or a corrupt, tyrannical aristocracy.”

Barnstable, MA

Statue of Mercy Otis Warren Born in Barnstable, Massachusetts, Mercy Otis Warren was a patriot, poet, and historian. She defied the idea that women should not participate in politics. She argued that women, as both citizens and mothers, had a moral responsibility to take part in civic discussions. Writing under a pseudonym, Warren advocated independence during the Revolution.

Mercy Otis Warren (Ca. 1763) The Gilder Lehrman Institute of American History

Portrait of Mercy Otis Warren, ca. 1763 Writing three days after the Constitution was adopted in Philadelphia, Warren observed in Boston that “almost every one whom I have yet seen reads with attention[,] holds the page with solemnity & silently wraps up his opinion within his own breast.”

Mercy Otis Warren to Catharine Macaulay (September 28, 1787) by Warren, Mercy Otis (1728-1814) The Gilder Lehrman Institute of American History

Mercy Otis Warren to Catharine Macaulay, 1787 In this letter written on September 28, 1787, to English historian Catharine Macaulay, Warren denounces the strong role of the federal government: “We have struggled for liberty & made lofty sacrifices at her shrine: and there are still many among us who revere her name too much to relinquish ... the rights of man for the Dignity of Government.” In 1788, Warren published a pamphlet, Observations on the New Constitution, summarizing her objections.

Poughkeepsie, NY

Clinton House In February 1788, the New York State legislature met at the Clinton House in Poughkeepsie and proclaimed that the state’s ratification convention would take place on June 21. New York, New Hampshire, and Virginia all scheduled their conventions for the month of June. By the beginning of June, eight states had already voted to accept the Constitution and only one more was needed to approve the new government.

Broadsheet printing of the United States Constitution (September 17, 1787) by Constitutional Convention The Gilder Lehrman Institute of American History

The US Constitution Printed in Albany, New York, June 1788 Unlike most versions of the Constitution, this printing does not start with the preamble. Instead, it begins with the letter George Washington wrote at the Constitutional Convention supporting the new form of government. This broadsheet was printed in June 1788 by Claxton and Babcock at the Federal Printing Office in Albany, New York. It can be viewed as a last-minute offensive by the Federalists to garner support for the proposed Constitution.

Federalists vs. Anti-Federalists Debates over the ratification of the Constitution took place in towns and villages across the country. To gain support, both Federalists and anti-Federalists held meetings and marches that sometimes became violent. One such encounter happened on this street in Albany, New York.

The Freeman's Journal, reporting on a street brawl (July 16, 1788) The Gilder Lehrman Institute of American History

Reporting on a Street Brawl In July 1788, Federalists marched through Albany, New York, and were stopped at Green Street by a group of anti-Federalists. According to a newspaper report, “a general battle took place, with swords, bayonets, clubs, stones, &c. which lasted for some time, both parties fighting with the greatest rage, and determined obstinacy, till at last the antifederalists being overpowered by numbers gave way and retreated.”

Portrait of Alexander Hamilton (New York Public Library) The Gilder Lehrman Institute of American History

Alexander Hamilton, Delegate to the NYS Ratification Convention At the New York ratification convention, forty-seven anti-Federalists outnumbered nineteen Federalists. Over the course of six weeks, Hamilton spoke twenty-six times in support of the Constitution. He argued eloquently, passionately, and logically and overcame the anti-Federalists’ concerns. On July 26, 1788, New York became the eleventh state to ratify the Constitution.

Developed by the Gilder Lehrman Institute of American History .

The American Revolution through the Eyes of Hamilton

The gilder lehrman institute of american history, alexander hamilton establishes the us economy, alexander hamilton and washington's presidency, the private life of alexander hamilton, the hamilton-burr duel, hamilton's new york: lower manhattan walking tour, “we the people”: printings of the us constitution from the gilder lehrman collection, alexander hamilton: a chronology, alexander hamilton: the man who made modern america, slave resistance.

The Constitution of the United States: Contemporary Ratification

October 12, 1985

No related resources

Introduction

Justice William Brennan (1906–1997), who was appointed to the Court in 1956 by President Eisenhower, was the architect of some of the most important decisions of the Warren Court (1953–1969) and one of the most influential associate justices in Supreme Court history. In response to Ed Meese’s speech calling for “originalist” interpretations of the Constitution, Brennan offered a full-throated defense of living constitutionalism. In Brennan’s view, originalism was “little more than arrogance cloaked as humility” because it was impossible to know how the authors of the Constitution would have responded to particular circumstances today. The Constitution, he said, contained “majestic generalities and ennobling pronouncements” that “are both luminous and obscure.” Because of the inherent ambiguities of the text, justices must interpret the Constitution “as twentieth-century Americans,” asking “what do the words of the text mean in our time?”

Source: William Brennan, “The Constitution of the United States: Contemporary Ratification,” University of California Davis Law Review 19, no. 1 (fall 1985): 2–14, https://lawreview.law.ucdavis.edu/issues/19/1/addresses-construing-constitution/DavisVol19No1_Brennan.pdf .

I am deeply grateful for the invitation to participate in the “Text and Teaching” symposium. This rare opportunity to explore classic texts with participants of such wisdom, acumen, and insight as those who have preceded and will follow me to this podium is indeed exhilarating. But it is also humbling. Even to approximate the standards of excellence of these vigorous and graceful intellects is a daunting task. I am honored that you have afforded me this opportunity to try.

It will perhaps not surprise you that the text I have chosen for exploration is the amended Constitution of the United States, which, of course, entrenches the Bill of Rights and the Civil War Amendments, and draws sustenance from the bedrock principles of another great text, the Magna Carta. So fashioned, the Constitution embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. The Declaration of Independence, the Constitution, and the Bill of Rights solemnly committed the United States to be a country where the dignity and rights of all persons were equal before all authority. In all candor we must concede that part of this egalitarianism in America has been more pretension than realized fact. But we are an aspiring people, a people with faith in progress. Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad, and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text. The encounter with the constitutional text has been, in many senses, my life’s work.

My approach to this text may differ from the approach of other participants in this symposium to their texts. Yet such differences may themselves stimulate reflection about what it is we do when we “interpret” a text. Thus I will attempt to elucidate my approach to the text as well as my substantive interpretation.

Perhaps the foremost difference is the fact that my encounters with the constitutional text are not purely or even primarily introspective; the Constitution cannot be for me simply a contemplative haven for private moral reflection. My relation to this great text is inescapably public. That is not to say that my reading of the text is not a personal reading, only that the personal reading perforce occurs in a public context and is open to critical scrutiny from all quarters.

The Constitution is fundamentally a public text—the monumental charter of a government and a people—and a justice of the Supreme Court must apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the American habit, extraordinary to other democracies, of casting social, economic, philosophical, and political questions in the form of lawsuits, in an attempt to secure ultimate resolution by the Supreme Court. In this way, important aspects of the most fundamental issues confronting our democracy may finally arrive in the Supreme Court for judicial determination. Not infrequently, these are the issues upon which contemporary society is most deeply divided. They arouse our deepest emotions. The main burden of my twenty-nine terms on the Supreme Court has thus been to wrestle with the Constitution in this heightened public context, to draw meaning from the text in order to resolve public controversies.

Two other aspects of my relation to this text warrant mention. First, constitutional interpretation for a federal judge is, for the most part, obligatory. When litigants approach the bar of court to adjudicate a constitutional dispute, they may justifiably demand an answer. Judges cannot avoid a definitive interpretation because they feel unable to, or would prefer not to, penetrate to the full meaning of the Constitution’s provisions. Unlike literary critics, judges cannot merely savor the tensions or revel in the ambiguities inhering in the text—judges must resolve them.

Second, consequences flow from a justice’s interpretation in a direct and immediate way. A judicial decision respecting the incompatibility of Jim Crow with a constitutional guarantee of equality is not simply a contemplative exercise in defining the shape of a just society. It is an order—supported by the full coercive power of the state—that the present society change in a fundamental aspect. Under such circumstances the process of deciding can be a lonely, troubling experience for fallible human beings conscious that their best may not be adequate to the challenge. We justices are certainly aware that we are not final because we are infallible; we know that we are infallible only because we are final. One does not forget how much may depend on the decision. More than the litigants may be affected. The course of vital social, economic, and political currents may be directed.

These three defining characteristics of my relation to the constitutional text—its public nature, obligatory character, and consequentialist aspect—cannot help but influence the way I read that text. When justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predilections. Precisely because coercive force must attend any judicial decision to countermand the will of a contemporary majority, the justices must render constitutional interpretations that are received as legitimate. The source of legitimacy is, of course, a wellspring of controversy in legal and political circles. At the core of the debate is what the late Yale Law School professor Alexander Bickel labeled “the counter-majoritarian difficulty.” Our commitment to self-governance in a representative democracy must be reconciled with vesting in electorally unaccountable justices the power to invalidate the expressed desires of representative bodies on the ground of inconsistency with higher law. Because judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation.

There are those who find legitimacy in fidelity to what they call “the intentions of the framers.” In its most doctrinaire incarnation, this view demands that justices discern exactly what the framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?—or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to “original intention”—and proposing nullification of interpretations that fail this quick litmus test—must inevitably come from persons who have no familiarity with the historical record.

Perhaps most importantly, while proponents of this facile historicism justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice. A position that upholds constitutional claims only if they were within the specific contemplation of the framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. It is far from clear what justifies such a presumption against claims of right. Nothing intrinsic in the nature of interpretation—if there is such a thing as the “nature” of interpretation—commands such a passive approach to ambiguity. This is a choice no less political than any other; it expresses antipathy to claims of the minority rights against the majority. Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.

Another, perhaps more sophisticated, response to the potential power of judicial interpretation stresses democratic theory: because ours is a government of the people’s elected representatives, substantive value choices should by and large be left to them. This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government. Yet it has similar consequences for the nature of proper judicial interpretation. Faith in the majoritarian process counsels restraint. Even under more expansive formulations of this approach, judicial review is appropriate only to the extent of ensuring that our democratic process functions smoothly. Thus, for example, we would protect freedom of speech merely to ensure that the people are heard by their representatives, rather than as a separate, substantive value. When, by contrast, society tosses up to the Supreme Court a dispute that would require invalidation of a legislature’s substantive policy choice, the Court generally would stay its hand because the Constitution was meant as a plan of government and not as an embodiment of fundamental substantive values.

The view that all matters of substantive policy should be resolved through the majoritarian process has appeal under some circumstances, but I think it ultimately will not do. Unabashed enshrinement of majority will would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislative body, fairly elected, approved. Our Constitution could not abide such a situation. It is the very purpose of a Constitution—and particularly of the Bill of Rights—to declare certain values transcendent, beyond the reach of temporary political majorities. The majoritarian process cannot be expected to rectify claims of minority right that arise as a response to the outcomes of that very majoritarian process. . . .

Faith in democracy is one thing, blind faith quite another. Those who drafted our Constitution understood the difference. One cannot read the text without admitting that it embodies substantive value choices; it places certain values beyond the power of any legislature. Obvious are the separation of powers; the privilege of the writ of habeas corpus; prohibition of bills of attainder and ex post facto laws; prohibition of cruel and unusual punishments; the requirement of just compensation for official taking of property; the prohibition of laws tending to establish religion or enjoining the free exercise of religion; and, since the Civil War, the banishment of slavery and official race discrimination. With respect to at least such principles, we imply have not constituted ourselves as strict utilitarians. While the Constitution may be amended, such amendments require an immense effort by the People as a whole.

To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of these substantive value choices, and must accept the ambiguity inherent in the effort to apply them to modern circumstances. The framers discerned fundamental principles through struggles against particular malefactions of the Crown; the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices. Each generation has the choice to overrule or add to the fundamental principles enunciated by the framers; the Constitution can be amended or it can be ignored. Yet with respect to its fundamental principles, the text has suffered neither fate. . . .

We current justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendant will learn, cannot be the measure to the vision of their time. . . .

Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter—abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote—we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste.

Having discussed at some length how I, as a Supreme Court justice, interact with this text, I think it time to turn to the fruits of this discourse. For the Constitution is a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law. Some reflection is perhaps required before this can be seen.

The Constitution on its face is, in large measure, a structuring text, a blueprint for government. And when the text is not prescribing the form of government it is limiting the powers of that government. The original document, before addition of any of the amendments, does not speak primarily of the rights of man, but of the abilities and disabilities of government. When one reflects upon the text’s preoccupation with the scope of government as well as its shape, however, one comes to understand that what this text is about is the relationship of the individual and the state. The text marks the metes and bounds of official authority and individual autonomy. When one studies the boundary that the text marks out, one gets a sense of the vision of the individual embodied in the Constitution.

As augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vision of the supremacy of the human dignity of every individual. This vision is reflected in the very choice of democratic self-governance: the supreme value of a democracy is the presumed worth of each individual. And this vision manifests itself most dramatically in the specific prohibitions of the Bill of Rights, a term which I henceforth will apply to describe not only the original first eight amendments, but the Civil War Amendments as well. It is a vision that has guided us as a people throughout our history, although the precise rules by which we have protected fundamental human dignity have been transformed over time in response to both transformations of social condition and evolution of our concepts of human dignity.

Until the end of the nineteenth century, freedom and dignity in our country found meaningful protection in the institution of real property. In a society still largely agricultural, a piece of land provided men not just with sustenance but with the means of economic independence, a necessary precondition of political independence and expression. Not surprisingly, property relationships formed the heart of litigation and of legal practice, and lawyers and judges tended to think stable property relationships the highest aim of the law.

But the days when common law property relationships dominated litigation and legal practice are past. To a growing extent economic existence now depends on less certain relationships with government—licenses, employment, contracts, subsidies, unemployment benefits, tax exemptions, welfare, and the like. Government participation in the economic existence of individuals is pervasive and deep. Administrative matters and other dealings with government are at the epicenter of the exploding law. We turn to government and to the law for controls which would never have been expected or tolerated before this century, when a man’s answer to economic oppression or difficulty was to move two hundred miles west. Now hundreds of thousands of Americans live entire lives without any real prospect of the dignity and autonomy that ownership of real property could confer. Protection of the human dignity of such citizens requires a much modified view of the proper relationship of individual and state.

In general, problems of the relationship of the citizen with government have multiplied and thus have engendered some of the most important constitutional issues of the day. As government acts ever more deeply upon those areas of our lives once marked “private,” there is an even greater need to see that individual rights are not curtailed or cheapened in the interest of what may temporarily appear to be the “public good.” And as government continues in its role of provider for so many of our disadvantaged citizens, there is an even greater need to ensure that government act with integrity and consistency in its dealings with these citizens. To put this another way, the possibilities for collision between government activity and individual rights will increase as the power and authority of government itself expands, and this growth, in turn, heightens the need for constant vigilance at the collision points. If our free society is to endure, those who govern must recognize human dignity and accept the enforcement of constitutional limitations on their power conceived by the framers to be necessary to preserve that dignity and the air of freedom which is our proudest heritage. Such recognition will not come from a technical understanding of the organs of government, or the new forms of wealth they administer. It requires something different, something deeper—a personal confrontation with the wellsprings of our society. Solutions of constitutional questions from that perspective have become the great challenge of the modern era. All the talk in the last half-decade about shrinking the government does not alter this reality or the challenge it imposes. The modern activist state is a concomitant of the complexity of modern society; it is inevitably with us. We must meet the challenge rather than wish it were not before us.

The challenge is essentially, of course, one to the capacity of our constitutional structure to foster and protect the freedom, the dignity, and the rights of all persons within our borders, which it is the great design of the Constitution to secure. During the time of my public service this challenge has largely taken shape within the confines of the interpretive question whether the specific guarantees of the Bill of Rights operate as restraints on the power of state government. We recognize the Bill of Rights as the primary source of express information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundation of America’s freedoms. Each is a protection with centuries of history behind it, often dearly bought with the blood and lives of people determined to prevent oppression by their rulers. The first eight amendments, however, were added to the Constitution to operate solely against federal power. It was not until the Thirteenth and Fourteenth Amendments were added, in 1865 and 1868, in response to a demand for national protection against abuses of state power, that the Constitution could be interpreted to require application of the first eight amendments to the states.

It was in particular the Fourteenth Amendment’s guarantee that no person be deprived of life, liberty, or property without process of law that led us to apply many of the specific guarantees of the Bill of Rights to the states. In my judgment, Justice Cardozo 1 best captured the reasoning that brought us to such decisions when he described what the Court has done as a process by which the guarantees “have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption . . .[that] has had its source in the belief that neither liberty nor justice would exist if [those guarantees]. . .were sacrificed.” 2 But this process of absorption was neither swift nor steady. As late as 1922 only the Fifth Amendment guarantee of just compensation for official taking of property had been given force against the states. Between then and 1956 only the First Amendment guarantees of speech and conscience and the Fourth Amendment ban of unreasonable searches and seizures had been incorporated—the latter, however, without the exclusionary rule to give it force. 3 As late as 1961, I could stand before a distinguished assemblage of the bar at New York University’s James Madison Lecture and list the following as guarantees that had not been thought to be sufficiently fundamental to the protection of human dignity so as to be enforced against the states: the prohibition of cruel and unusual punishments, the right against self-incrimination, the right to assistance of counsel in a criminal trial, the right to confront witnesses, the right to compulsory process, the right not to be placed in jeopardy of life or limb more than once upon accusation of a crime, the right not to have illegally obtained evidence introduced at a criminal trial, and the right to a jury of one’s peers.

The history of the quarter century following that Madison Lecture need not be told in great detail. Suffice it to say that each of the guarantees listed above has been recognized as a fundamental aspect of ordered liberty. Of course, the above catalogue encompasses only the rights of the criminally accused, those caught, rightly or wrongly, in the maw of the criminal justice system. But it has been well said that there is no better test of a society than how it treats those accused of transgressing against it. Indeed, it is because we recognize that incarceration strips a man of his dignity that we demand strict adherence to fair procedure and proof of guilt beyond a reasonable doubt before taking such a drastic step. These requirements are, as Justice Harlan once said, “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” 4 There is no worse injustice than wrongly to strip a man of his dignity. And our adherence to the constitutional vision of human dignity is so strict that even after convicting a person according to these stringent standards, we demand that his dignity be infringed only to the extent appropriate to the crime and never by means of wanton infliction of pain or deprivation. I interpret the Constitution plainly to embody these fundamental values.

Of course the constitutional vision of human dignity has, in this past quarter century, infused far more than our decisions about the criminal process. Recognition of the principle of “one person, one vote” as a constitutional one redeems the promise of self governance by affirming the essential dignity of every citizen in the right to equal participation in the democratic process. Recognition of so-called new property rights in those receiving government entitlements affirms the essential dignity of the least fortunate among us by demanding that government treat with decency, integrity, and consistency those dependent on its benefits for their very survival. After all, a legislative majority initially decides to create governmental entitlements; the Constitution’s due process clause merely provides protection for entitlements thought necessary by society as a whole. Such due process rights prohibit government from imposing the devil’s bargain of bartering away human dignity in exchange for human sustenance. Likewise, recognition of full equality for women—equal protection of the laws—ensures that gender has no bearing on claims to human dignity.

Recognition of broad and deep rights of expression and of conscience reaffirm the vision of human dignity in many ways. They too redeem the promise of self-governance by facilitating—indeed demanding—robust, uninhibited, and wide-open debate on issues of public importance. Such public debate is of course vital to the development and dissemination of political ideas. As importantly, robust public discussion is the crucible in which personal political convictions are forged. In our democracy, such discussion is a political duty, it is the essence of self-government. The constitutional vision of human dignity rejects the possibility of political orthodoxy imposed from above; it respects the right of each individual to form and to express political judgments, however far they may deviate from the mainstream and however unsettling they might be to the powerful or the elite. Recognition of these rights of expression and conscience also frees up the private space for both intellectual and spiritual development free of government dominance, either blatant or subtle. Justice Brandeis put it so well sixty years ago when he wrote: “Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.” 5

I do not mean to suggest that we have in the last quarter century achieved a comprehensive definition of the constitutional ideal of human dignity. We are still striving toward that goal, and doubtless it will be an eternal quest. For if the interaction of this Justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve.

Indeed, I cannot in good conscience refrain from mention of one grave and crucial respect in which we continue, in my judgment, to fall short of the constitutional vision of human dignity. It is in our continued tolerance of state-administered execution as a form of punishment. 6 I make it a practice not to comment on the constitutional issues that come before the Court, but my position on this issue, of course, has been for some time fixed and immutable. I think I can venture some thoughts on this particular subject without transgressing my usual guideline too severely.

As I interpret the Constitution, capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. This is a position of which I imagine you are not unaware. Much discussion of the merits of capital punishment has in recent years focused on the potential arbitrariness that attends its administration, and I have no doubt that such arbitrariness is a grave wrong. But for me, the wrong of capital punishment transcends such procedural issues. As I have said in my opinions, I view the Eighth Amendment’s prohibition of cruel and unusual punishments as embodying to a unique degree moral principles that substantively restrain the punishments our civilized society may impose on those persons who transgress its laws. Foremost among the moral principles recognized in our cases and inherent in the prohibition is the primary principle that the state, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings. A punishment must not be so severe as to be utterly and irreversibly degrading to the very essence of human dignity. Death for whatever crime and under all circumstances is a truly awesome punishment. The calculated killing of a human being by the state involves, by its very nature, an absolute denial of the executed person’s humanity. The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity. Yet an executed person has lost the very right to have rights, now or ever. For me, then, the fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. It is, indeed, “cruel and unusual.” It is thus inconsistent with the fundamental premise of the clause that even the most base criminal remains a human being possessed of some potential, at least, for common human dignity.

This is an interpretation to which a majority of my fellow justices—not to mention, it would seem, a majority of my fellow countrymen—does not subscribe. Perhaps you find my adherence to it, and my recurrent publication of it, simply contrary, tiresome, or quixotic. Or perhaps you see in it a refusal to abide by the judicial principle of stare decisis , obedience to precedent. In my judgment, however, the unique interpretive role of the Supreme Court with respect to the Constitution demands some flexibility with respect to the call of stare decisis . Because we are the last word on the meaning of the Constitution, our views must be subject to revision over time, or the Constitution falls captive, again, to the anachronistic views of long-gone generations. I mentioned earlier the judge’s role in seeking out the community’s interpretation of the constitutional text. Yet, again in my judgment, when a justice perceives an interpretation of the text to have departed so far from its essential meaning, that justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived.

You have doubtless observed that this description of my personal encounter with the constitutional text has in large portion been a discussion of public developments in constitutional doctrine over the last century. That, as I suggested at the outset, is inevitable because my interpretive career has demanded a public reading of the text. This public encounter with the text, however, has been a profound source of personal inspiration. The vision of human dignity embodied there is deeply moving. It is timeless. It has inspired Americans for two centuries and it will continue to inspire as it continues to evolve. That evolutionary process is inevitable and indeed, it is the true interpretive genius of the text.

If we are to be as a shining city upon a hill, it will be because of our ceaseless pursuit of the constitutional ideal of human dignity. For the political and legal ideals that form the foundation of much that is best in American institutions—ideals jealously preserved and guarded throughout our history—still form the vital force in creative political thought and activity within the nation today. As we adapt our institutions to the ever-changing conditions of national and international life, those ideals of human dignity—liberty and justice for all individuals—will continue to inspire and guide us because they are entrenched in our Constitution. The Constitution with its Bill of Rights thus has a bright future, as well as a glorious past, for its spirit is inherent in the aspirations of our people.

1. Justice Benjamin Cardozo (1870–1938).
2. Justice Brennan’s note: Palko v. Connecticut, [302 U.S. 319, 326 (1937),].
3. A rule that prohibits the use of illegally obtained evidence in a trial.
4. Justice Brennan’s note: In re Winship, [397 U.S. 358, 372 (1970),] (concurring opinion).
5. Justice Brennan’s note: Whitney v. California [274 U.S. 357, 375 (1927),] (concurring opinion).
6. See the argument of Justice Antonin Scalia in Originalism: The Lesser Evil.

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The first amendment, the anti-federalists and their important role during the ratification fight.

September 27, 2017 | by Ugonna Eze

On this day in 1787, the debate over the newly written Constitution began in the press after an anonymous writer in the New York Journal warned citizens that the document was not all that it seemed.

Most Americans know of the Federalist Papers, the collection of essays written by Alexander Hamilton, John Jay, and Madison, in defense of the U.S. Constitution. Fewer know of the Anti-Federalist Papers authored by Cato and other incognito writers, their significance to American political history, or their responsibility for producing the Bill of Rights.

When the Constitution was drafted in the summer of 1787, its ratification was far from certain; it still needed to be ratified by at least nine of the 13 state legislatures. The failure of the Articles of Confederation made it clear that America needed a new form of government. Yet there was worry that the Constitution gave too much power to the federal government. The original draft of the Constitution did not have a Bill of Rights, declared all state laws subservient to federal ones, and created a king-like office in the presidency. At the Philadelphia Convention and in the Federalist Papers, James Madison argued against having a Bill of Rights, fearing that they would limit the people’s rights.

Opposition to the Constitution after the Philadelphia Convention began with Elbridge Gerry, Edmund Randolph, and George Mason, the “Three Dissenters” who refused to sign the document. It then grew to include Patrick Henry, Samuel Adams, and Richard Henry Lee, heroes of the Revolutionary War who objected to the Constitution’s consolidation of power. In time, the various opponents to the new Constitution came to be known as the Anti-Federalists. Their collected speeches, essays, and pamphlets later became known as the “Anti-Federalist Papers.”

While each of the Anti-Federalists had their own view for what a new constitution for the United States should look like, they generally agreed on a few things. First, they believed that the new Constitution consolidated too much power in the hands of Congress, at the expense of states. Second, they believed that the unitary president eerily resembled a monarch and that that resemblance would eventually produce courts of intrigue in the nation’s capital. Third, they believed that the liberties of the people were best protected when power resided in state governments, as opposed to a federal one. Lastly, they believed that without a Bill of Rights, the federal government would become tyrannous.

These arguments created a powerful current against adopting the Constitution in each of the states. In state legislatures across the country, opponents of the Constitution railed against the extensive powers it granted the federal government and its detraction from the republican governments of antiquity. In Virginia, Patrick Henry, author of the famous “Give Me Liberty or Give Me Death” speech, called the proposed constitution, “A revolution as radical as that which separated us from Great Britain.” In the Essays of Brutus, an anonymous author worried that without any limitations, the proposed Constitution would make “the state governments… dependent on the will of the general government for their existence.”

The Anti-Federalists mobilized against the Constitution in state legislatures across the country.

Anti-Federalists in Massachusetts, Virginia and New York, three crucial states, made ratification of the Constitution contingent on a Bill of Rights. In Massachusetts, arguments between the Federalists and Anti-Federalists erupted in a physical brawl between Elbridge Gerry and Francis Dana. Sensing that Anti-Federalist sentiment would sink ratification efforts, James Madison reluctantly agreed to draft a list of rights that the new federal government could not encroach.

The Bill of Rights is a list of 10 constitutional amendments that secure the basic rights and privileges of American citizens. They were fashioned after the English Bill of Rights and George Mason’s Virginia Declaration of Rights. They include the right to free speech, the right to a speedy trial, the right to due process under the law, and protections against cruel and unusual punishments. To accommodate Anti-Federalist concerns of excessive federal power, the Bill of Rights also reserves any power that is not given to the federal government to the states and to the people.

Since its adoption, the Bill of Rights has become the most important part of the Constitution for most Americans. In Supreme Court cases, the Amendments are debated more frequently than the Articles. They have been cited to protect the free speech of Civil Rights activists, protect Americans from unlawful government surveillance, and grant citizens Miranda rights during arrest. It is impossible to know what our republic would look like today without the persistence of the Anti-Federalists over two hundred years ago.

Ugonna Eze is a Fellow for Constitutional Studies at the National Constitution Center.

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We the People

The constitution is not determined by the founders, judges, or even supreme court justices. we still get to decide what it should mean..

This is part of How Originalism Ate the Law , a Slate series about the legal theory that ruined everything.

As a branding exercise, originalism has been a wild success. The concept, once fodder for obscure law review articles no one read, went mainstream in the 1980s, after the Supreme Court dealt the conservative legal movement a series of high-profile losses on issues like affirmative action and abortion rights. In 1985 Edwin Meese III, then the attorney general under President Ronald Reagan, outlined his grand vision of a “jurisprudence of original intention” in a speech before the American Bar Association. “Those who framed the Constitution chose their words carefully,” he said. “The language they chose meant something. It is incumbent upon the court to determine what that meaning was.”

The idea quickly captured hearts and minds on the right by appealing at once to their obedience to authority, their distaste for the Warren court’s “activist” pro–civil rights decisions, and their nostalgia for bygone eras during which, coincidentally, civil rights did not really exist for people who were not white men. Today a loudly professed passion for originalism is table stakes for any ambitious conservative lawyer who hopes to warm a seat on the bench, and among members of the court’s six-justice conservative supermajority, it is basically the only acceptable method to divine the Constitution’s meaning.

Perhaps the most consistent features of originalist decisions are their density and verbosity: To determine whether a purported right is sufficiently “deeply rooted” in “history and tradition,” justices and judges conduct meandering surveys of English common law, quote the dusty treatises of mononymic philosophers, and parse the hastily scribbled notes of founding-era legislators who wrote the letter S , for some godforsaken reason , as F . The majority opinion in Dobbs v. Jackson Women’s Health Organization , in which the court voted to take away a fundamental right it had recognized five decades earlier, spans 79 pages, not including two appendixes of state-level antichoice laws. New York State Rifle & Pistol Association v. Bruen , in which the court invented an individual right to gun possession some two centuries after the Second Amendment’s passage, includes lengthy analyses of the 1328 Statute of Northampton, the roots of King Henry VIII’s skepticism of 16 th -century handguns, and the relevance (?) to modern gun safety laws of the “launcegay,” a Chaucer-era weapon akin to a 10-to-12-foot lance.

As a result, originalism’s ascendance has made the Constitution feel even less accessible than it was before, which was “not very.” Supreme Court opinions are famously laden with intimidating jargon, inscrutable shorthand, and italicized case names, all deployed in an effort to decipher a 250-year-old collection of aspirational vagaries and morally repugnant compromises . Understanding the Constitution now also requires familiarity with, to take an example from Dobbs , 19 th -century translations of 13 th -century treatises that were originally written in Latin . By design, originalism makes normal people—by which I mean those who had the good sense not to blow a quarter of a million dollars on law school—feel like insecure, conspicuous interlopers in a conversation that is plainly Not for Them.

But regular people are not actually alone here. Even some federal judges have started to voice frustration with the fact that originalism obligates them to tackle questions they are not trained to answer. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791,” wrote Carlton Reeves , a Black federal district court judge in Mississippi, after SCOTUS decided Bruen in 2022. “Yet we are now expected to play historian in the name of constitutional adjudication.”

This gatekeeping effect is, I think, the most pernicious lie of originalism because treating constitutional interpretation as the sole domain of judges running haphazard Wikipedia searches cuts everyone else out of the process. This is wrong. The Constitution was written not to be understood by think-tank gremlins writing dueling amicus briefs, or Supreme Court justices with the unreviewable authority to cherry-pick their preferred narrative. The Constitution was written for the people whose rights its language protects and who suffer the consequences if a judge decides otherwise. You simply do not need a medieval studies Ph.D. to be able to read what the law says and form a valid opinion about what it means. And you are not wrong to be skeptical of unelected, unaccountable judges who insist that the record, thin and ambiguous and contradictory though it may be, nonetheless compels but one objectively correct result.

There was a period when normal people, through their elected representatives, were much more active participants in the work of constitutional governance. We, as in We the People, used to regularly clarify the Constitution and fix the broken parts, often quickly. You are probably familiar with the first 10 amendments, which were approved as a package deal shortly after the Constitution’s ratification. Known as the Bill of Rights, these amendments collectively established a set of individual liberties on which the big, bad federal government, which had many of the Framers feeling understandably skittish, may not infringe. For example, the “right to remain silent” speech that cops ( are supposed to ) read to people under arrest is a mashup of the Fifth and Sixth amendment rights against self-incrimination and to be represented by counsel. A cop’s (ostensible) obligation to get a warrant before turning your house inside out is derived from the Fourth Amendment, which protects against “unreasonable searches and seizures.”

But these amendments are not the only amendments—or, I would argue, the most important ones. After the Civil War, Congress moved quickly to pass the Reconstruction amendments , which in sweeping terms guaranteed to people of color (and all Americans) their freedom, their citizenship, their right to vote, and their right to equal protection under the law. (In theory, at least.) The ratification of the 13 th , 14 th , and 15 th amendments meant that for the first time, the Constitution contained the tools necessary to build a thriving multiracial democracy. (Again, in theory.) As the historian Eric Foner writes in The Second Founding , the Reconstruction amendments “should be seen not simply as an alteration of an existing structure” but as creating “a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.”

Between 1909 and 1971, the Constitution was amended 11 more times—on average, about twice per decade—to do things like guarantee women’s suffrage, bar poll taxes, and include the District of Columbia in the Electoral College. Congress even adopted one amendment, the 21 st , that undid a prior one, the 18 th , which is why you can legally enjoy a cocktail while reading this sentence.

Alas, the pace of this work tapered off in the mid-20 th century. The amendments that did make it through the process were more incremental than revolutionary. Courts had hollowed out key provisions of the Reconstruction amendments, which never fully delivered on their lofty promises. The Equal Rights Amendment, which would have constitutionalized prohibitions on sex discrimination, died on the vine after failing to acquire ratification by three-quarters of state legislatures. This is how we ended up in a situation where, despite 50 years of dizzying technological, cultural, and social change, the only successful effort to amend the Constitution—the document at the heart of American democracy—during that period is a tweak to the effective date of congressional pay increases.

The reasons for this trend are too complex to detail here. (I will note that in a hyperpolarized political climate in which passing simple legislation counts as a monumental accomplishment, getting 38 state legislatures to agree on anything is borderline impossible.) But the result is a Constitution that is frozen in time unless life-tenured judges muster the votes to amend it by judicial fiat. By casting themselves as the only legitimate arbiters of constitutional meaning, originalist judges have transformed representative democracy into conservative oligarchy, in the name of fidelity to whichever version of “history and tradition” sounds most appealing to the likes of Justice Neil Gorsuch. Foner characterized originalism as “misconceived,” “ridiculous,” and “intellectually indefensible” in a 2022 interview published by Balls and Strikes and the Emancipator. “There’s nothing wrong with figuring out what people were trying to do,” he said. “But to think that there’s one original meaning is just foolish, in my opinion.”

One of the benefits originalism’s evangelists often tout is its putative infallibility: By considering only evidence from the time of a provision’s enactment, adherents are uniquely able to set aside their personal beliefs when tackling even the hardest legal questions that come before them. Or as Meese put it, originalism is superior to the alternatives because its application yields “defensible principles of government” that are not “tainted by ideological predilection.”

This has always been the sort of incoherent fairy tale that only lawyers could believe about themselves. But the Supreme Court’s handiwork over the past few years highlights just how riddled with policy choices the process actually is—not only in deciding which version of history is most persuasive but also in deciding which parts of the Constitution are worthy of this revisionist history treatment in the first place. Clarence Thomas could be taking the guarantees of the Reconstruction amendments as seriously as he takes, for example, the second half (and just the second half ) of the Second Amendment. The reason he doesn’t is because he cares about using his power to protect merely some rights, for some people, some of the time.

I am not suggesting that historical context is irrelevant to the task of deciding what law means. I am simply saying that historical context is not dispositive either. Even if it were possible to determine a single meaning of a particularly obscure turn of phrase, judges in 2024 are applying the Constitution to facts that people in 1789 (or 1865, or whenever the relevant clause was written) could not have imagined: whether domestic abusers have an inviolate right to possess guns, which are now capable of firing dozens or hundreds of rounds a minute. Whether lawmakers can force pregnant people to get airlifted out of state to avoid dying of sepsis. Whether a president who tried to overturn the results of an election he lost can hold the same office again. No one who wrote the Constitution did so with the benefit of knowledge about our current world, and none of them are alive today to deal with the consequences.

You are. And for this reason, you can and should participate in discussions about what your Constitution means—not only what it (may have) meant once upon a time but what it ought to mean, today, in a country with more guns than people , where doctors are afraid to provide lifesaving care to pregnant patients, and an oath-breaking insurrectionist is a coin flip to win the next election. Your opinion about how the Constitution applies to crises like these is just as legitimate and worthy of consideration as James Wilson’s or Benjamin Franklin’s—or, for that matter, Sam Alito’s. If the practice of constitutional law is largely amateur-hour history, it’s not as if he is any better at “reading books” than you are.

The purpose of a legal philosophy that tells you that your perspective doesn’t matter—that you aren’t smart or credentialed enough to be part of the conversation—is to insulate its believers’ policy decisions from well-deserved criticism. When a judge’s selective retelling of “history” yields answers that are anathema to the maintenance of a safe, inclusive, modern society, it is good and correct, actually, to reject the premise of originalism and do the reading yourself.

COMMENTS

5.5: The Ratification of the Constitution
Figure 1. This Massachusetts Sentinel cartoon (a) encourages the state's voters to join Georgia and neighboring Connecticut in ratifying the Constitution. Less than a month later, on February 6, 1788, Massachusetts became the sixth member of the newly formed federal union (b).
The Ratification of the Constitution
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James Wilson's State House Speech
The the ratification campaign began in earnest with this speech by James Wilson defending the Constitution and the absence of a bill of rights. Wilson (1742-1798), born in Scotland, immigrated to the United States when a young man, and became a leading lawyer and political figure in Pennsylvania. He signed both the Declaration of Independence ...
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James Madison and the Federal Constitutional Convention of 1787
Madison was a stalwart in defense of the new plan. Joining with Alexander Hamilton and John Jay to write a series of essays that could help turn public opinion toward ratification, Madison was a prime author of what became known as The Federalist—an oft-reprinted series of newspaper and then pamphlet articles. No one has absolutely identified ...
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The Ratification of the Constitution
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The Federalist Papers
The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States.The collection was commonly known as The Federalist until the name The Federalist Papers emerged in the twentieth century. ...
Ratification of the US Constitution (article)
Article V. The section of the Constitution that details how to amend the Constitution, either through a congressional proposal or a convention of the states, with final ratification from three-fourths of the states. Great Compromise. Also known as the Connecticut Compromise, a major compromise at the Constitutional Convention that created a two ...
Closing Speech at the Constitutional Convention (1787)
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Ratification of the U.S. Constitution: An Overview of the Process
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Constitution of the United States—A History
A More Perfect Union: The Creation of the U.S. Constitution Enlarge General George Washington He was unanimously elected president of the Philadelphia convention. May 25, 1787, freshly spread dirt covered the cobblestone street in front of the Pennsylvania State House, protecting the men inside from the sound of passing carriages and carts. Guards stood at the entrances to ensure that the ...
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The Bill of Rights. In 1789, Madison, then a member of the newly established U.S. House of Representatives, introduced 19 amendments to the Constitution. On September 25, 1789, Congress adopted 12 ...
Ratification of the Constitution
At the start of the ratification convention in Richmond in May of 1788, eight states had already approved the Constitution. While Washington did not attend the convention, he stayed in contact with Madison who defended the document in a series of brilliant debates. When the vote was finally taken on June 25, the Constitution was approved by a ...
2.4: The Battle for Ratification and the Bill of Rights
Federalists and Anti-Federalists had a bitter and acrimonious debate through newspaper editorials, pamphlets, letters, disagreements in pubs and churches, and at ratification conventions.The most famous documents became known as the Federalist Papers, which constituted a defense of the Constitution.Many Federalists in other parts of the country were also writing their own works, and the ...
The Ratification Debate
The Constitution was sent to the states for ratification, and the stage was set for a debate on the merits of the Constitution, including the need for a bill of rights. Perhaps the most important and radical thing about the ratification debate is that it was a debate. It was a national conversation in which the engagement centered on persuasion ...
The Ratification Debate on the Constitution
On July 26, by a narrow vote of 30 to 27, New York answered in the affirmative, conditionally ratifying the Constitution with a call for another convention to propose a bill of rights. Only after Congress voted in 1789 to send amendments to the states for approval did North Carolina and Rhode Island vote to ratify the new Constitution.
Alexander Hamilton and the Ratification of the Constitution
The Federalist Papers, 1787-1788. James Madison, John Jay, and Alexander Hamilton were leaders of the Federalists. Together, they wrote 85 essays published under the pseudonym "Publius" in New York newspapers. Hamilton wrote fifty-one of the essays, Madison twenty-nine, and Jay five. As New York prepared for the state's ratification ...
The Constitution of the United States: Contemporary Ratification
Justice Brennan's speech "Contemporary Ratification" is an ideal primary source for a secondary or postsecondary lesson plan about constitutional interpretation. ... The Constitution is fundamentally a public text—the monumental charter of a government and a people—and a justice of the Supreme Court must apply it to resolve public ...
Historical Background on Free Speech Clause
A year later, Jefferson suggested to Madison that the free speech-free press clause might read something like: The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the ...
The Anti-Federalists and their important role during the Ratification
Anti-Federalists in Massachusetts, Virginia and New York, three crucial states, made ratification of the Constitution contingent on a Bill of Rights. In Massachusetts, arguments between the Federalists and Anti-Federalists erupted in a physical brawl between Elbridge Gerry and Francis Dana. Sensing that Anti-Federalist sentiment would sink ...
How to fix the law in the United States: Form your own opinion about
The ratification of the 13 th, 14 th, and 15 th amendments meant that for the first time, the Constitution contained the tools necessary to build a thriving multiracial democracy. (Again, in ...

The Ratification of the Constitution

THE RATIFICATION PROCESS

INSIDER PERSPECTIVE

THE RATIFICATION CAMPAIGN

LINK TO LEARNING

FINDING A MIDDLE GROUND

CHAPTER REVIEW

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James Wilson’s State House Speech

Introduction

The Ratification of the Constitution

THE RATIFICATION PROCESS

THE RATIFICATION CAMPAIGN

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Ratification

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Ratifying the Constitution

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Introduction

Source: William Brennan, “The Constitution of the United States: Contemporary Ratification,” University of California Davis Law Review 19, no. 1 (fall 1985): 2–14, https://lawreview.law.ucdavis.edu/issues/19/1/addresses-construing-constitution/DavisVol19No1_Brennan.pdf .

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