Ratification: The People Debate the Constitution, 1787-1788
By Pauline Maier
(Simon & Schuster, 589 pages, $30)
This solid and splendidly organized and written block of a book, carved largely from the wealth of material collected in The Documentary History of the Ratification of the Constitution, published since 1976 by the Wisconsin Historical Society, tells the story of the public debate that raged between Federalists and their opponents after the Constitutional Convention adjourned in September 1787, with the Constitution just a set of proposals, until July 1788, when New York became the 11th state to ratify the document. In September of that year Congress declared the Constitution ratified, and laid down the rules for the first presidential election, to be conducted in 1789.
Pauline Maier, a professor of American history at MIT who once heard Barbara Tuchman talk and took it to heart, writes with a narrative flair and the conviction that history must be written to be read beyond the classroom. She succeeds admirably, opening with a ploy that draws us into a lengthy prologue set at Mount Vernon, where we join George Washington, “the American Cincinnatus, a man who left the plow to save his country, then took it up again when the danger had passed.” With his love for his lands and his fascination with practical matters, it’s a role he cherishes, and the prospect of heading up the Virginia delegation to the ratification convention gives him no pleasure.
“Above all,” Maier writes, “Washington wanted to stay home.” And if there’s a flaw here, it’s that Maier’s portrait of Washington at this moment in his life is so compelling that he very nearly hijacks her work, and at least one reader would almost prefer that he stay home, let Maier write more about life at Mount Vernon, stay with him there, and forget the whole noisy political business that lies ahead — a sentiment one suspects he shared.
But as the first American scholar to write comprehensively on these ratification debates, Maier has her duty to do. And so when “On May 8, Washington finally set out for Philadelphia,” she takes her narrative with him, then leaves him to assume her place among members of the state conventions charged by the Constitutional Convention with determining the document’s fate — and in the process, determining the shape and form of our national government.
It was at this ratification convention that our first national political argument would take place, centering on many of the same issues that animate the political arguments of today. “No taxation without representation,” a major issue at the heart of the American Revolution, clashed with proposals to give Congress the power to levy direct taxes. Opponents were deeply suspicious of congressional power to set arrangements for congressional elections and of the proposed federal court system. In these and other areas, the seeds were planted for ongoing debates over states’ rights versus federal control, and the proper division of power between federal and state governments.
There were also debates about religion and slavery, although Maier shows that despite current preoccupations, the latter wasn’t a central issue. Some opponents wanted religious tests included that would disqualify “Popish priests,” Deists, and other pagans from holding office. Others spoke for abolition.
But the prevailing attitude seemed best summed up by Isaac Backus, a Baptist minister from Massachusetts:
Both reason and the Bible showed that religion was always a matter between God and the individual, he said. As a result, no man or men could impose religious tests without invading “the essential prerogatives of our Lord Jesus Christ.” Moreover, all history showed that religious tests were “the greatest engine of tyranny in the world.”
As for slavery, he too hated it, but he noted that the Constitution had opened a door for the future abolition of the slave trade that was absent under the Articles of Confederation and affirmed an earlier prediction by [Thomas] Dawes that slavery itself was fated to die out.
MOST READERS, if not well informed about the details of ratification — understandably, since this is the first coherent account — are familiar with the leading actors, among them George Washington, James Madison, Alexander Hamilton, Patrick Henry, Gouverneur Morris, who wrote a fine satirical poem on the proceedings, too long to reproduce here. Others are less familiar, or forgotten — Rufus King, Edmund Randolph, Edmund Pendleton, Melancton Smith, James Iredell, William Findley.
Some of the best anecdotes in Maier’s narrative involve such men. William Findley from Pennsylvania, a self-educated Irish immigrant who had fought in the Revolutionary War, farmed land still claimed by Indians, and opposed the Constitution, asserted at his state’s convention that the document was flawed because it failed to secure trial by jury in civil cases. “The future of freedom was at stake, Findley claimed: When Sweden abandoned jury trials, ‘the commons of that nation lost their freedom’ and a ‘tyrannical aristocracy’ took over.”
His remarks threw the Federalists into a fury, especially Thomas McKean, Pennsylvania’s chief justice, and James Wilson, later an associate justice of the U.S. Supreme Court, who belittled Findley for his ignorance and presumption to learning, and declared that Sweden had never had trial by jury.
When the delegates reassembled, Findley produced his evidence, the third volume of William Blackstone’s Commentaries, in which Blackstone wrote that when the Swedish jury system collapsed, the country had become an aristocratic tyranny. Said Findley: “If his son had been studying law for six months and remained unacquainted with the passage in Blackstone ‘I should be justified in whipping him.'”
Of the ordinary citizens who wholeheartedly joined in the debate, Maier writes:
They refused to be told that the issues of the day were beyond their competence. They put their minds to complicated problems, tried to reconcile the ideals of the Revolution with the needs of the nation, and considered the impact of contemporary decisions not just on their own lives but for the future — for “millions yet unborn,” as one person after another put it. They were engaged, often remarkably well informed given the primitive communications of the day, and… honored majority rule, even when it went against them.
Maier is scrupulously fair to the Anti-Federalists, and refuses to call them that. Because of objections from men like William Findley, who called it “a name of reproach,” she “preferred to type out ‘critics of the Constitution’ and its synonyms over and over.” Moreover, she believes, the Federalists enjoy an advantage routinely denied to their opponents by historians:
Let me be clear on this: I have no doubt that we need to understand the Federalists’ understanding of the Constitution… they provided the intellectual foundations of American government. For that we tend to believe everything they said.… The Federalists were intelligent and articulate, the kind of people with whom historians tend to identify, and so to trust.… What they said seems wise and persuasive, which is to say true.
From a certain perspective they won, and winners generally tell the stories.
And they had the means to help shape those stories:
[T]he Federalists also controlled the documents on which historians depend. They owned most of the newspapers. They sometimes paid those who took notes on the convention debates or subsidized the publication of their transcripts. In some places… Federalists forcibly blocked the circulation of literature critical of the Constitution.
However, she writes:
They were not trying to distort history. They were struggling to win a very tough fight on behalf of what they understood as the nation’s welfare in a world where the rules of the political game were different from those of today.
And in fact, Maier believes, casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government, as conventional history would have it, is misleading. Nearly everyone, she maintains, was for a federal government stronger than the one provided for by the Articles of Confederation. But the reluctance of the Federalists to allow amendments before ratification aroused opposition among those who saw in it a threat to the rights won during the Revolution.
In the end, the Federalists won. But Maier believes their opponents also won a good deal more than historians acknowledge or perhaps realize. Congress met many of their concerns by expanding the House of Representatives, approving the Judiciary Act of 1789, modifying the plan to levy direct taxes except in times of war, and proposing a series of amendments.
“Without their determined opposition,” Maier writes,
the first ten amendments would not have become a part of the Constitution for later generations to transform into a powerful instrument for the defense of American freedom. “We the People” of 1787 and 1788 inaugurated a dialogue between power and liberty that has continued, reminding us regularly of the principles of 1776 upon which the United States was founded and that has given us direction and national identity. Their example might well be their greatest gift to posterity.
In her concluding section, Maier gives the last word to William Findley, who in 1796 recorded how his thinking had changed.
In the end, like so many onetime critics of the Constitution, William Findley “embraced the government as my own and my children’s inheritance.” He knew that the Constitution had defectS.… In his mature judgment, the Constitution was, however, not just good or maybe good enough.
Findley came to believe that it was “capable of being well administered, and on the whole, the best government in the world.”