Where Did the Constitution Come From? Part Two: Drafting & Ratification

Welcome back to Constitutional Perspectives!

Last time, I began to tell the Constitution's origin story – well, the Level One version of it, anyway. We left off in the mid-1780s, after the Treaty of Paris had ended the War for Independence. But the constitutional order of 1776, as formalized in the Articles of Confederation, was growing increasingly untenable.

In the meantime, though, something interesting had been happening at the state level. I mentioned that, at the time of independence, the states operated under their existing colonial charters. But in fact, concurrent with the national Declaration of Independence, many of the states set to work replacing their charters. Virginia acted first, indeed acted before the Continental Congress. A statewide convention, notably featuring the likes of George Mason and James Madison, adopted a Declaration of Rights on June 12th, 1776. Two weeks later, the convention had produced a new organizing document for Virginia's government – a constitution.

By the following year, ten of the thirteen states had adopted such constitutions. Two – Connecticut and Rhode Island – would not until many years later. (In Rhode Island's case, it took a civil war in the 1840s. I am not making this up.) Massachusetts, though, adopted its first state constitution (authored largely by John Adams) in 1780. I highlight Massachusetts in particular because it introduced a highly significant innovation: adoption of the 1780 constitution was put to a vote, before the people of the state, not merely a convention or legislature. This is commonly recognized as the first popular ratification in world history, and along with the earlier round of constitutional ferment in the states, it gave those who were dissatisfied with the Articles of Confederation some ideas.

So, in the fall of 1786, delegates from five states met in Annapolis, Maryland for the so-called Annapolis Convention. Ostensibly this was just about getting the various states to work out their differences on e.g. internal trade barriers. But two of the delegates, James Madison and Alexander Hamilton, were already scheming and dreaming bigger. The Convention's report, authored by Hamilton, recommended to the Continental Congress a broader reworking of the Articles; Congress responded by summoning a convention in Philadelphia. Which we know today as the Constitutional Convention.

Again, on paper the Philadelphia Convention was only tasked with suggesting amendments to the Articles – which would have to be adopted by the unanimous agreement of the states. But Madison and friends had bigger ideas: right from the get-go they were proposing something new entirely. We now think of this as the Virginia Plan, and it was basically a blueprint for a true national government, dominated by a powerful, bicameral legislature apportioned according to population. (In other words, the more populous states would enjoy greater representation in both houses of the new legislature.) You can read the whole thing here.

I don't want to say too much yet about the details of the negotiations and arguments at Philadelphia. It is enough, for now, to sketch the basic narrative of the Convention. Madison's faction came into the Convention with all the momentum, and at first the basic contours of their Plan were broadly accepted. But within a couple of weeks, another faction had emerged that wanted to dream a little smaller: to strengthen the Articles, yes, but not to replace them altogether, and to maintain the basic structure of the Continental Congress – unicameral, equal representation for each state. This is what we now call the New Jersey plan, after its lead sponsor, William Paterson of New Jersey. (You can read it here; I'm not finding any source any clearer than Madison's notes.)

Those of you who took American history in high school have probably heard it said that the New Jersey plan was favored by the small states (yes, New Jersey was a small state at the time). There's some truth to this, but only some: the nationalism vs. localism divide only somewhat tracked the one between large and small states. New York's delegation, aside from Hamilton (who, as the song says, was only a junior delegate), was loyal to then-Governor George Clinton, who dominated the state's politics and fiercely opposed anything that would reduce his power. Small states like Georgia, on the other hand, allied with Madison's faction.

In the end, the Convention rejected the New Jersey plan convincingly, with only the delegations from New York, New Jersey, and Delaware supporting it (with Maryland divided). But there was still enough discontent with the Virginia Plan that things remained deadlocked for several weeks thereafter. The famous breakthrough, which we now call the Great Compromise or the Connecticut Compromise, was made by Roger Sherman and Oliver Ellsworth of, you guessed it, Connecticut. It's a pretty simple compromise, really. One side wanted representation based on population, the other wanted equal voting power for each state. Well don'tcha know, this new legislature is going to have two separate chambers, so why not say that each side gets one of them?

Madison & co. were not happy about this. Indeed, Madison came out of the Convention rather despondent, feeling that his whole project had failed. But the partisans of the Virginia Plan could see well enough that there was never going to be enough support to adopt their vision unadulterated, and the compromise was made. (There was another dimension to it as well, which I am being deliberately coy about for the moment.) Hammering out the remaining details went relatively smoothly after that point. (Ha ha, just kidding, it took another TWO MONTHS to get the whole thing finished, but again, I don't want to get too much in any of those weeds yet.)

So, on September 17th – which we now celebrate as Constitution Day – the delegates signed the final proposal, the Convention adjourned, and the text of the Constitution was made public for the first time. Oh, did I mention that they had been working in absolute secrecy this whole time? The broader public knew nothing of the story I just relayed, indeed would know nothing of it until after Madison's death in 1836, when his meticulous notes from the Convention (which remain our principal source of knowledge about all this) were made public. This is the context for the famous exchange between Benjamin Franklin – at the age of 82, the dean of the Convention and by far its most famous member – and Philadelphia socialite Elizabeth Willing Powel, who accosted him leaving Independence Hall:

Powel: What have we got, a republic or a monarchy?
Franklin: A republic, madam, if you can keep it.

The proposed Constitution was sent to the Congress, which overlooked the Convention's arguable overstepping of its bounds and sent the thing along to the states to consider ratification. Per the terms of the new Constitution itself, it would go into effect upon ratification by nine of the thirteen states, and each state was to summon a special convention to debate ratification. (This was a rather deliberate slight to the state legislatures, who of course would have rejected the thing, as it reduced their own institutional powers considerably.)

Public debate on the new Constitution was fierce right from the start, with copious writings from authors both supporting and opposing ratification. The most significant of these was a series of essays published in a local newspaper in New York City beginning in late October 1787, titled The Federalist and signed only with the pseudonym "Publius." This name was itself a bit of propaganda, for the word "federalist" was used at the time to describe the "federal" structure of the Articles of Confederation. Enemies of the proposed Constitution charged that it would replace this "federal" structure with a unitary national government that would wholly subsume the states. Publius, then – a staunch supporter of ratification – adopted the "Federalist" moniker to rebut these allegations, and to suggest that the Philadelphia Convention's plan was not so outrageous a departure from the status quo as all that. Indeed, supporters of ratification quickly became known as Federalists, while opponents became known as Anti-Federalists.

Of course the reason we still care about this particular series of essays – eighty-five of them, when all was said and done! – today is that "Publius" was in fact a team of authors including both James Madison and Alexander Hamilton. (John Jay of New York was the third, and unlike Madison and Hamilton he had not been present at the Convention, but in any event he only wrote five of the essays.) Thus these Federalist Papers, as we now call them, are frequently regarded as an authoritative guide to the intentions and understandings of the very men who wrote the thing. There is some truth to this, but of course the actual purpose of those essays was to convince New York State to ratify the document, and as we know, the final plan was nowhere near what Hamilton and Madison themselves had wanted. (You can read every Federalist Paper at the Yale Law Library's Avalon Project.)

Anyway. Amidst all this debate, three states ratified almost immediately, in December 1787 – Delaware, Pennsylvania, and (rather ironically) New Jersey – and two more, Georgia and Connecticut, followed the next month. Three of those states' ratifying conventions were unanimous in favor, with Pennsylvania sporting a 46-23 supermajority and Connecticut an even more lopsided 128-40 one: of course the first states to ratify were those most strongly in favor. Then things began to slow down, as sentiment in the remaining states was more evenly divided.

Drama was at its highest in the Massachusetts, Virginia, and New York conventions. Of the three, Massachusetts ratified first, by a narrow 187 to 168 margin in early February of 1788. But to overcome resistance, the Massachusetts Federalists had had to offer their Anti-Federalist foes some concessions: in ratifying the Constitution, the Massachusetts convention expressly called for certain amendments to be made addressing the Anti-Federalists' concerns and criticisms. (They did not, as the Anti-Federalists might have preferred, make ratification literally conditional on the adoption of those amendments, among other things because it was unclear whether such a thing would be permitted.)

A similar strategy eventually overcame resistance in Virginia (in June, by a vote of 89-79) and New York (in July, 30-27). In fact by the time those big states ratified, the necessary nine had already been accomplished, with Maryland, South Carolina, and New Hampshire all ratifying between April and June. But New York and Virginia were essential to the Union's success, not just because of their size and economic might but because, if they had refused to sign on, they would have bisected the nation's territory. (Imagine trying to get to New England if New York were not part of the United States!) But they did ratify, and in November North Carolina would do the same.

By then the old Continental Congress certified that the new Constitution had been properly adopted, thereby dissolving itself. Operations began on March 4th, 1789, for which reason the document is sometimes called the "1789 Constitution" (although 1787 also works). One of the first orders of business under the new government was honoring the promise the Federalists had made to secure ratification: that they would adopt amendments addressing the Anti-Federalists' biggest concerns.

Of these concerns, one towered above the rest: the absence of a bill of rights. Every one of the new state constitutions had one of these, starting with the famous Virginia Declaration, so the delegates' decision not to put one in their proposal seemed, well, odd. Now, they had their reasons: the Federalists argued that, due to some differences between the structures of the state and federal constitutions, a bill of rights wasn't needed in the latter. This is a fascinating topic that I will address at great length later in this series. For now all that matters is that the country had rather decisively rejected the argument, and had demanded the addition of a bill of rights as the price of ratification.

Madison himself – a leading champion of the theory that a bill of rights was unnecessary – quickly drafted a slate of fourteen amendments. Of these, twelve were passed by the Congress and sent to the states for ratification; of those, ten were ratified by the requisite three-fourths majority in 1791. Those ten make up what we now call the Bill of Rights, and along with the actual, original document adopted in 1789 can be thought of as the Founders' Constitution.

This concludes the story of where the Constitution came from! (Well, mostly: there is one more tale to tell, which I am not going to tell just yet.) Join me next time as we begin to delve into matters of substance with a quick sketch of the essentials of the constitutional scheme!