The Magazine

Closing the Deal

Framing the Constitution was one thing, ratifying it was quite another.

Nov 29, 2010, Vol. 16, No. 11 • By JAMES M. BANNER JR.
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Ratification

Closing the Deal

Photo Credit: Getty Images

The People Debate the
Constitution, 1787-1788
by Pauline Maier
Simon & Schuster, 608 pp., $30

As hard as it is to believe, this is the first complete history ever written about the American people’s acceptance of the Constitution written in Philadelphia in the summer of 1787. That fact alone makes Pauline Maier’s book pathbreaking. It is also authoritative, masterful, and definitive.

Maier is known for her earlier studies of the coming of the Revolution, of the older figures among the revolutionaries, and, most recently, of the Declaration of Independence and its many sister declarations—the last a work of many surprises. Few know the revolutionary era as well as she, and few are as dogged in their research. With characteristic modesty, Maier credits the close-to-complete letterpress edition of the state-by-state record of the Constitution’s ratification in 1787 and 1788 for making possible the newest of her works. Those volumes are truly extraordinary in exhaustiveness and accuracy. It remains the case, however, that it is Maier and none other who has used the contents of the existing volumes to write this particular book, and then made up in archival digging and broad scholarship for those volumes that have not yet appeared.

That we have had to wait roughly 225 years for such a work has much to do with the place that the Declaration and the Constitution hold in Americans’ minds. The first spelled out our enduring commitments, the second the basic structure of American government ever since. But while the Declaration was adopted in a moment of revolutionary passion, the Constitution was the product of a more sober, disenthralled time. It was also the product of two distinct, if linked, sets of acts: first, of the celebrated gathering that wrote and adopted it; second, of the independent state conventions that ratified (and in two cases did not ratify) the text agreed to earlier in Philadelphia.

Since then, Americans have vaunted the “miracle at Philadelphia”—the writing of the Constitution by a group of “demigods”—but paid little attention to the second act of that world-historical drama: the debate about whether the proposed constitution warranted the people’s backing. That battle was, in Maier’s words, “one of the greatest and most probing public debates in American history,” one that took place “in newspapers, taverns, coffeehouses, and over dinner tables,” and engaged Americans, women as well as men, of all ranks and status everywhere. Ratification was, of course, fought out formally only among adult white men, for only they were authorized to exercise political power in the 18th century. Yet modest as well as great men participated in this public battle, and voices that rarely break through the record of great constitutional events made themselves heard with clarity and force.

“One excellent effect produced by the constitution,” one contemporary New York newspaper reflected, was “that almost every man is now a politician, and can judge for himself” the merits of the proposed constitution. The whole nation was involved in constitutional debate as rarely, if ever, it has been since. Maier captures all of the debate with unvarying balance and skill.

Yet notwithstanding widespread engagement in this high-stakes drama, ratification was never guaranteed. We forget how narrowly the Constitution won approval, by what whisker’s breadth the United States has not been governed since the 1780s under another kind of constitutional regime. For had the proposed constitution gone down to defeat in the ratification conventions, as often it nearly did, the United States would have continued to be governed, at least for a while, under the weak Articles of Confederation.

And then by what? Who knows. It’s hard to imagine that a second attempt would not have been made to replace the Articles, but any constitution emerging from a second convention would not have been the one we know now. It is Maier’s purpose to relate the tale of how ratification secured this Constitution, the longest-lived written national constitution in the world.

Directly after the proposed constitution’s emergence from Philadelphia, and as soon as the Confederation Congress agreed to send the text forth to the states for consideration, the proponents of the Constitution, the “Federalists,” had to decide whether or not they would accept revisions and amendments to the document proposed along the way by their “Antifederalist” opponents. Their negotiating stance, if it can be called that, was simple and firm: “This or nothing.” Such a granite strategy needed to work in 9 of 13 states, for the Framers’ draft had deftly got around the paralyzing rule of the Confederation Congress that all changes to or replacement of the Articles of Confederation required unanimity. But securing ratification in even 9 states proved difficult; and were any of the major states to withhold their approval, the entire union would remain in peril. So even if the end result seems to have vindicated the Federalists’ all-or-nothing strategy, that strategy was not without danger.

Alternative approaches did exist. One was to allow ratification conventions to approve the Constitution conditionally—to give their consent only in return for particular, specified changes to the original text. But this approach ran the risk of making reconvening the Philadelphia convention almost certain. Another was to accept ratification on the understanding that the first federal Congress would consider amendments proposed by the states. The Federalists gradually came to accept this modest deviation from their basic approach: They would accept nonbinding suggestions for amendments as the price of ratification in those states where only this concession would gain a majority vote for ratification.

Even so, it was a close call.

Maier devotes the bulk of Ratification to detailing arguments and events in each state convention. In another’s hands, her approach might have been plodding and dull; constitutional argument does not lend itself naturally to liveliness and color. But while the nature of her subject often requires her to subdue her well-known effervescence, Maier manages to give vivid life to the debates and debaters. In Pennsylvania, the first state to take up the Constitution, the Federalists steamrollered their Antifederalist opponents, effectively closed the newspapers to them, and left opponents and others with a bad taste in their mouths. From then on, those who had the initiative in their hands—those who had written and now fought for the new frame of government—conceded their Antifederalist opponents more time and occasion to argue their case while waiting for fatigue to set in and watching as, one by one, the states slowly fell into line.

But confidence in the final outcome was always misplaced as long as the results in Virginia and New York, among the last three states to schedule their conventions, remained in doubt—even when the ninth state had signed on. And remain in doubt they did, giving the final months of this epochal battle all the drama of great theater. Had these two states not ratified the Philadelphia text, the union might not have endured.

The apogee of debate was reached in the Virginia ratifying convention, “a battle of giants,” as Maier terms it, whose greatest figure, the Constitution’s avowed opponent Patrick Henry, thundered away and kept the Federalists there on the defensive and in a state of anguished worry. If Virginia failed to ratify, New York’s ratification would no doubt also fail, and the Constitution would be doomed. James Madison, Edmund Randolph, and others entered the lists against Henry to extract success from the fires he set. Others who would later command the nation’s attention—James Monroe, John Tyler Sr., Benjamin Harrison, and John Marshall—played their own parts. The Federalists narrowly carried the day, but not before agreeing to a set of proposed amendments, many of which Madison later squired through Congress to become the Bill of Rights.

The battle in New York, which was to become the 11th state to ratify, was no less fraught, the suspense there probably even greater than in Richmond. Virginia’s ratification made New York’s situation awkward, for if the state did not ratify the Constitution, it would be the only major jurisdiction still outside the union. But New York’s governor George Clinton—no Patrick Henry, we might say, but a force to reckon with notwithstanding—proved unmovable, even with such figures as Alexander Hamilton and John Jay entering the contest against him. Save for the defection of a few Antifederalists to the opposing camp, New York would have remained, at least temporarily, an independent jurisdiction—just as, for a time, North Carolina and Rhode Island did. Only by the thinnest of threads was the new Constitution secured.

None of the major outlines of this history is new. What Maier has added to it is detail, nuance, and suspense. Never before have the stakes been so vividly evident. Never before have the modest figures who had their brief moments of historical significance gained the historical portrayals they always deserved. And never before have we been able to see with the clarity Maier brings to her story how remarkable a crisis this constitutional moment was and how penetrating were the arguments on both sides of the debate.

Those who already know some of this history and the arguments among historians that have long surrounded it will be surprised by one characteristic of Maier’s work. It is silent about one of the single most influential historical debates of the past century: whether the Constitution was the product of Enlightenment thought, of the political culture of the late 18th-century Anglo-American world, or of economic interests. The name of Charles A. Beard, who in 1913 inaugurated this enduring interpretive battle over the foundations of American government, does not even appear in the index, nor do the names of those scholars who did battle with Beard, reinterpreted the evidence he used, or took scholarship about the framing and ratification of the Constitution in new directions.

Beard sought to establish the capitalist and class basis of American constitutional government in order to call into question claims made for its universal timeliness and applicability. While Beard’s crude interpretation did not stand up to scrutiny, he indelibly established most, even if not all, of the bases on which historians still argue about the Constitution’s origins and significance.

Ratification suggests, by its silence about this debate, that an era—a full century—of historiography of the Constitution has come to an end. Yet it’s curious that Maier shows no interest in that debate one way or the other, because it’s hard to think of a time since the 1920s when a review of the constitutional foundations of American mis-government and market economies run amok would be more appropriate than it is now. Nor would it have been inappropriate for Maier to suggest the unfavorable implications for originalist interpretations of the Constitution embodied in her history.

But she has no axe to grind, no overarching argument to offer. Her intent, made all the more justifiable by the previous absence of a book like this, is simply to narrate the story of one of the most critical moments in American history in all its complexity and suspense. But doing so without connecting the story’s elements to a strong thematic or interpretive spine robs it of the clear place in the literature of its subject and, equally important, of a sense of its relevance to our times that it might otherwise have had. Hers is necessarily a story of often-dry debate, historical and legal back-and-forth, occasional moments of high oratory, but not of the kind of color, character, and pacing that makes naturally for exciting history. The book’s interest and value lie elsewhere: in bringing to life the contents of debate, a sense of what hung in the balance, and the enduring consequences of the outcome.

Surely her conclusion is correct: that both sides, the Federalists and Antifederalists alike, won their battles, the Feds the basic document, the Antis the Bill of Rights. William Findley, a Pennsylvanian who had fought as hard as anyone to defeat the Constitution, eventually came round to the view that the Constitution deserved to be seen as a testament of freedom. It gave the United States, he wrote, “the best government in the world.”

James M. Banner Jr., a cofounder of the National History Center, is the editor, with John R. Gillis, of Becoming Historians, a set of the memoirs of 11 historians.

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