Dr. Almon Leroy Way, Jr.,

University President & Professor of Political Science

1. "Ratification of a Constitution" -- A Definition:

"Ratification of a constitution" means formal acceptance by a political society, or community, of a proposed constitution that has been drafted and submitted to the society for its decision on acceptance or rejection.

The proposed constitution is formally adopted by the society and goes into effect as that society's supreme law.

2. How the United States Constitution Was Ratified & Why:

        The Mode of Ratification. The delegates attending and participating in the Federal Constitutional Convention incorporated into the proposed U.S. Constitution Article VII, Clause 1:

    "The Ratification of the Constitution of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."

According to this constitutional provision and a resolution adopted by the Constitutional Convention, the Constitution of the United States would go into effect for those states ratifying the document when it had been ratified by conventions in nine of the thirteen states.

The proposed U.S. Constitution, when it had been accepted by three-fourths of the states, would go into effect and become the supreme law of those states ratifying the document.

By majority vote, the Federal Convention made two very important decisions. First, the Convention voted to formally submit to the thirteen states the constitution it had drafted and recommend that the states ratify the document. Second, the Convention passed a resolution that was to be submitted to the states, along with the proposed U.S. Constitution. The resolution called on the legislature of each state to provide for a direct popular election to choose a State Convention. The popularly elected State Convention was to (1) assemble and deliberate on the proposed Constitution and (2) decide for the state the question of its ratification or rejection of the U.S. Constitution.

By the end of June, 1788, the Constitution had been ratified by popularly elected conventions in nine states. By the end of the 1780s, the Constitution had been ratified by such conventions in all thirteen states.

        Why This Mode of Ratification? Firstly, the delegates to the Federal Convention sought to by-pass the state legislatures, since opposition to ratification of the U.S. Constitution was quite strong in many of the state legislatures. Secondly, the delegates sought to get around the unanimous ratification requirement in Article XIII of the Articles of Confederation -- the requirement that constitutional amendments and revisions be accepted by the legislatures of all the states. Thirdly, many delegates believed that the Federal Constitution -- a constitution intended to be the fundamental and supreme law of the entire nation -- should be ratified by an authority higher than a legislature, that higher authority being American society at large, i.e., the people as a whole. The delegates, being committed republicans as well as ardent constitutionalists, expected a constitution founded on the acceptance of the general American populace, rather than on merely the approval of political factions and elites in the state legislatures, would have a significantly higher moral and legal status. The delegates believed that ratification of the U.S. Constitution by popularly elected state conventions was more likely to enhance the political legitimacy of the Constitution.

3. Nature of the Political Conflict over Ratification:

The issue of ratification or rejection of the U.S. Constitution was highly controversial throughout the entire nation, highly controversial in every region of the U.S.A. In some states, the voters were almost evenly divided on the issue.

The controversy resulted in the emergence of two opposing political coalitions, the Federalists and the Antifederalists.

        The Federalists. The Federalists were those persons who favored ratification of the U.S. Constitution. The Federalists, with some important exceptions, were numerous and had strong popular and elite support in the the "low-country," or "tidewater," region of each state, especially in the seaports. A state's tidewater region, with good seaports, had the advantage of easy access to the channels of foreign and interstate trade. The economic prosperity and well-being of tidewater inhabitants depended on high levels of activity in international and interstate commerce.

The livelihoods and fortunes of the tidewater inhabitants of the southern states were closely bound up with and directly affected by agriculture of international significance -- large-scale agriculture based on slave labor and the shipment of agricultural exports out of the seaports to Great Britain and other European countries. The livelihoods and fortunes of the tidewater residents of the New England states were closely tied to and hinged on manufacturing, shipping, and interstate commerce. As regards the tidewater economy of the middle states, it was a "mixed economy," having features of both the New England and southern tidewater economies.

People in all three segments of the tidewater region were hurting economically, due to the economic depression caused by the weaknesses and consequent paralysis of the central government under the Articles of Confederation. The collapse of the tidewater economy was due, in paticular, to the central government's (1) want of authority to lay and collect taxes and regulate foreign and interstate commerce, (2) inability to prevent the states from setting up tariff barriers to interstate and foreign trade, and (3) resultant lack of ability to persuade British and other European governments to enter into trade treaties favorable to the U.S.A.

Hence, the tidewater inhabitants tended strongly to favor significant constitutional change at the national level. They tended to perceive the need for a much stronger and more effective central government for the U.S.A. -- a government that would be able and willing to raise revenue by taxation, regulate trade among the states and with foreign countries, adopt and enforce a common tariff policy for the entire nation, successfully conclude favorable treaties with foreign governments, and thereby bring an end to the economic paralysis and severe hard times afflicting the people of the tidewater region.

So, the tidewater region was "Federalist country."

        The Antifederalists. The Antifederalists were those persons who opposed ratification of the U.S. Constitution. While there were exceptions, the Antifederalists tended to be politically strong in the hinterland, or back-country regions, comprising a territorial area extending northeastward from Georgia through what is now Maine (then part of Massachusetts). In the hinterland, the inhabitants were dependent for their livelihoods on small-scale agriculture and trade in local markets. The back-country residents did not depend, to any great extent, on economic activity in international and interstate trade and were largely unaffected by the severely depressed economic conditions under which the people of the tidewarter region were suffering.

Therefore, people of the back-country inclined to prefer the political status quo and resist the drive for significant constitutional change at the national level.

4. Federalists Versus Antifederalists:

        The Federalist -- The Federalist Papers:  1787-1755. The Federalist, or The Federalist Papers, is a group of eighty-five essays which emerged from the great debate over ratification of the U.S. Constitution. The essays, many of which were written by James Madison, some by Alexander Hamilton and a few by John Jay, (1) were addressed to the people of the State of New York, (2).appeared in a number of New York newspapers in 1787 and 1788, (3) explained the principles of the proposed U.S. Constitution and how the new national government was expected to operate under the Constitution, and (4) presented the case for a strong and stable national government which would cope effectively with problems facing the American nation, make and enforce decisions on national public policy, and operate to counterbalance and restrain the power of the state legislatures.

The immediate purpose of The Federalist Papers was to persuade the voters of New York to elect a pro-Federalist state convention -- a state convention that would, deciding and acting for and in the name of the State of New York, vote to ratify the U.S. Constitution.

        The Antifederalist Position. The Antifederalists objected to the U.S. Constitution on two main grounds:

    Their belief that the proposed Constitution would, if adoped, give the central government entirely too much power;

    The absence of a Bill of Rights in the Constitution.

The Antifederalist argument was that the new and more powerful national government, operating under a constitution without a Bill of Rights, would seriously endanger both the rights of individual citizens and the rights of the states. The Antifederalists maintained that the new central government would constitute a grave threat to individual liberty as well as the autonomy of the states.

As regards the type of government needed to safeguard liberty, the Antifederalists argued that liberty could be protected and preserved only in a "small repunlic," defining a "small republic" as a constitutional republican government over a small population inhabiting a small territorial area -- a republic in which those who ran the government were physically close to the people they governed and were closely watched, checked, and restrained by the voting citizenry. The Antifederalist model for a "small republic" was probably the government of a typical local community in America at that time or the government of one of the small states of the era, say, Rhode Island or New Jersey.

The Antifederalists were opposed to establishing a strong national government because they believed that such a government would be distant from the people and employ its sweeping powers to ride roughshod over the people's vital interests, deprive them of their constitutional rights and liberties, concentrate all political authority in its own hands, and destroy state autonomy, or home rule.

What kind of union of states did the Antifederalists favor? The Antifederalists, being advocates and defenders of state sovereignty (which entailed an extreme degree of political decentralization), wanted to make certain that the U.S.A. remained a loose union or association of virtually sovereign states (as it was under the Articles of Confederation), that the authority of the central government continue to be severely limited and circumscribed, and that most governmental power be retained by the states.

5. James Madison's Response to the Antifederalists' Argument That Liberty Was Safest     in a Small Republic:

        Madison's Response in Federalist 10 and Federalist 51.

Liberty is safe neither in a small society governed by a direct democracy nor in a small society with a republican, or representative, government characterized by a large unicameral legislative assembly, a large number of small legislative election districts, and very short terms of office for members of the legislature and for other elected officers in the government. Liberty is not safe in a small political community, regardless of whether the government of that community be a direct democracy or a small republic.

Liberty is safest in a large republic. In a large republic, there are many competing interests and views, rather than a single prevailing interest or view -- an interest or view held by an overwhelming and dominant majority which is in a position to suppress and oppress unpopular minorities and dictate conformity and uniformity. In a larger, more populous and diverse society, individuals and groups with interests and views at odds with those of the majority find it easier to gain political allies -- i.e. to coalesce with other persons and groups in order to more effectively oppose the majority, compete for political power, and further their own interests and views.

To govern a society, different interests and factions within the society must come together and form a majority political coalition, or "\political alliance. In a larger republic, the political coalitions that are put together are inclined to be (1) more diverse and loosely held together, (2) less radical, less rigid and doctrinaire, and less demanding in the public policies they advocate, and (3) more moderate, with a greater tendency to negotiate, bargain, and compromise with their own internal component factions and interests as well as with competiting coalitions.

In a larger republic, a majority coalition is more difficult to put together and can more easily fall apart. Compromise with and accomodation of the views and vital interests of the different groups and factions making up the political coalition constitute the essential condition for holding the coalition together.

In a republic the size of the U.S.A., with its huge variety of interests and views,

    "... a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good." [James Madison, Federalist 51.]

        The Implication of Madison's Argument. What Madison implied in his argument was that America's national government should be at some distance from the general populace and insulated from temporary popular moods and passions. For the central government to have these characteristics, the chief executive and the members of the legislative assembly must serve during comparatively long terms of office.Moreover the chief executive and one chamber of a bicameral legislature should be indirectly elected.

What was Madison's rationale for advocating a central government with these features? Within a political society, the popular majority does not always govern in a lawful and just fashion. The majority does not always permit its authoritative decisions and actions to be guided and controlled by what is morally or legally right. It does not always seek justice. It does not always strive to safeguard liberty.

Liberty is endangered by momentary popular moods and passions, especially when they are exploited by a cohesive political faction consisting of a self-interested, overbearing popular majority bent on riding roughshod.over the rights and vital interests of minorities. Popular forces of this sort constitute a threat to liberty equal to or greater than the threat posed by a strong and all-powerful government under the direction and control of one person or a small, cohesive group.

A popular majority can be and, in some cases, has been tyrannical. Tyranny of the majority -- i.e. absolute democracy, or unlimited rule by the majority -- can be an even greater danger to liberty than is autocracy (unlimited rule by one) or oligarchy (unlimited rule by the few).

In a society governed by an unrestrained and unbalanced government supported and controlled by a self-interested and overbearing popular majority, dissenting individuals and minority groups need not appeal to popular opinion for support or hope for redress of grievances as the result of a popular revolt.

If liberty is to be safe and secure, the government must be structured in such a manner that the majority and the minority are prevented from using that government to abuse each other. The majority as well as the minority must be restrained and prevented from utilizing governmental authority to achieve unwise, unjust, and despotic ends. Liberty must be safeguarded and protected from majority encroachments as well as from minority encroachments.

6. The Issue of the Absence of a Bill of Rights in the U.S. Constitution:

The Antifederalists most potent criticism of the proposed U.S. Constitution was the document's lack of a Bill of Rights, lack of a set of provisions clearly stipulating and guaranteeing the basic rights of the individual citizen.

        Why the Delegates Failed to Include a Bill of Rights of Rights in the Proposed Constitution. In drawing up the U.S. Constitution, the Convention delegates did not completely disregard the concern for civil liberties, concern for constitutional guarantee and protection of individual rights and liberties The Constitution, as drafted and proposed by the Federal Convention, did contain a number of specific guarantees of individual liberty:

    The right to trial by jury in criminal cases [Article III, Section 2];

    The right to a writ of habeas corpus (i.e., a court decree ordering a government officer who has a person in custody to bring the prisoner or detainee into court and show cause for his arrest and confinement) [Article I. Section 9];

    Protection against the government's enforcement of a bill of attainder (i.e., any law or resolution passed by a legislature declaring an individual guilty of a crime and setting the punishment to be imposed on that individual, thereby depriving him of the benefit of trial by jury) [Article I, Sections 9 & 10];

    Protection against the government's execution of an ex post facto law (i.e., any law that defines an act as a crime and makes prosecution, conviction, and punishment under that law applicable to any person who committed the act before it was defined by law as a crime) [Article I, Sections 9 & 10];

    Protection against religious tests (qualifications, or requirements) for holding office in the national government [Article VI, paragraph 3];

    Protection against state laws impairing the obligation of contracts (i.e., state laws that weaken the effect of or make it more difficult to enforce contracts legally entered into by and between or among individuals or contracts made by the states) [Article I, Section 10, Contract Clause];

    Guarantee that the citizens of each state would enjoy the same basic, or fundamental, rights enjoyed by the citizens of every other state; [Article IV, Section 2, Privileges and Immunities Clause];

    Narrow definition of the political crime of "treason against the United States" and specification of very strict legal requirements that must be met and procedures that must be followed in order to convict a person of teason. [Article III. Section 3];

Seven of the thirteen state constitutions contained Bills of Rights, or Declarations of Rights. In other state constitutions, the guarantees of individual rights and liberties were scattered throughout each constitutional document. Because of this, the delegates at the Federal Convention did not think it was necessary to attempt to draft an all-inclusive, all-embracing enumeration of the fundamental rights of the individual and incoporate guarantee and protection of those rights into the new national constitution.

A "Bill of Rights" is essentially a list of "thy shall nots" for the government, an enumeration which, according to the perceptions of the Founders, left a whole lot to be desired, no matter how detailed and compresensive the enumeration. Those who drafted and proposed the U.S. Constitution did not think that liberty could be most effectively safeguarded by numerous constitutional provisions specifying what government could and could not do. The Framers were not convinced that a Bill of Rights, even a detailed and comprehensive Bill of Rights, was the best and most viable method restraining governmental power and protecting liberty. They tended to see balanced government as, by far, the most effective means of limiting governmental power and safeguarding liberty.

In drafting the U.S. Constitution, the Framers saw themselves as devising a central government with specific and strictly limited powers. In their view, the national government would be able to do only what the Constitution specifically granted it authority to do. And, in the proposed Constitution, among the specific grants of authority to the national government, one could not find any authorization for the central government to deprive individual citizens of their fundamental rights and liberties. The seven original articles of the Constitution drawn up by the Federal Convention and submitted to the states contained no delegation of power that would enable the central government to encroach on and destroy individual liberty.

7. The Federal Bill of Rights -- The Important Political Bargain That Emerged from the     Ratification Campaign:

The movement to obtain ratification of the U.S. Constitution ran into a formidable obstacle early in the ratification campaign. This obstacle was in the form of very strong political opposition and resistance growing out of concern over the proposed Constitution's lack of a Bill of Rights.

The Federalist leaders quickly discovered that they would have to negotiate and bargain on the Bill-of-Rights issue and offer an acceptable compromise, a compromise that would eliminate the tremendous obstacle to ratification -- absence of a Bill of Rights in the proposed Constitution. In order to obtain ratification of the Constitution by popularly elected state conventions in some of the key large states (e.g., Massachusetts, Virginia, and New York), the Federalist leaders made a promise, assuring the the voters that the Federalists would immediately seek addition of a Bill of Rights to the Constitution, if and when it was adopted. The Federalist leaders agreed that the very first Congress meeting under the new Constitution would propose a series of amendments providing for a Federal Bill of Rights.

This, of course, was done. Twelve amendments were proposed by Congress. Ten of them were ratified by the states in 1791, becoming the Federal Bill of Rights as well as the first ten amendments to the U.S. Constitution.

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