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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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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.

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