We the People

It seems that they are on the news programs every night: Americans dressed as 18th-century Founders, waving placards saying “Don’t Tread On Me” and complaining that members of Congress pass legislation without regard for the Constitution. Perhaps never before have so many citizens invested so much of their political energy in the proposition that we should return to the first principles of the Founding.

Critics of the tea-party movement have been quick to question its members’ constitutional bona fides. Washington Post columnist E.J. Dionne, for instance, sniffed that tea-party supporters more closely resemble Anti-Federalists—opponents of the Constitution in 1788—than they do the Founders.

In a sense the critics are right. To a remarkable extent, the tea-party movement is raising the same questions of constitutional governance that Anti-Federalists (and not a few Federalists) raised in the debates over whether to adopt a new Plan of Union in 1788. Just a few days ago, a poll by Rasmussen Reports showed that fully 61% of American adults believe that the federal government has too much power; 66% think Americans are overtaxed; and 70% believe the government does not spend taxpayers’ money wisely or fairly.

Too bad Rasmussen wasn’t around in the 1780s—the results might have been strikingly similar. Even while ratifying the Constitution, at least seven of the state conventions—representing the vast majority of Americans—expressed the view that the new government had been given too much power. The conventions demanded amendments to curb the government’s potential for oppression. And the most popular of the amendments—the only one agreed on by all the states proposing the changes—limited the federal government’s broad power of taxation.

Yet it’s doubtful that many Americans today, even tea-party enthusiasts, are aware that those debates took place.

The arrival of Pauline Maier’s “Ratification,” then, could not be more timely. It is the first comprehensive account of the debates in the 13 states over adoption of the Constitution. Others have written about specific aspects of the ratification struggle—about the arguments of one side or the other, or about the debate in a particular state—but remarkably, until now, no historian had written a full-length account of the politics, personalities, arguments, and outcomes between Sept. 17, 1787, when the Constitutional Convention completed its work, and May 29, 1790, when the last of the original states, Rhode Island, ratified the document.

“Ratification,” for all its scope and technical detail, is a gripping and eye-opening read. Ms. Maier is a member of that rare breed of historians who write vividly and with a flair for depicting dramatic events. She has benefited from an ongoing project led by John Kaminski and Gaspare Saladino called The Documentary History of the Ratification of the Constitution, an effort to collect and publish all extant records, newspaper articles, letters and notes bearing on the subject of ratification. Much of this material, Ms. Maier writes, “I suspect no historian has ever used before.” She mined the papers to produce a description of the ratification process that is rich in detail, bringing to light episodes and arguments previously unknown even to constitutional historians.

For example, the supporters of the Constitution in Pennsylvania were so determined to make it appear that the state overwhelmingly supported ratification that they suppressed publication of the proceedings. Despite weeks of spirited debate, in which opponents raised numerous issues of substance, only two speeches, both by supporters, made it into the official reports. The Federalist majority even voted to expunge any mention of defeated motions for amendments from the journal of the proceedings. Most prior accounts of the Pennsylvania events thus missed most of this fight.

Drawing on freshly uncovered archival sources, Ms. Maier tells the story of a Pennsylvania backwoods opponent of the Constitution, William Findley, who denounced the absence of a provision for civil jury trials in the Constitution—an omission later rectified by the Seventh Amendment. He commented that when Sweden had abandoned jury trials, “the commons of that nation lost their freedom.” Immediately, two lions of the Pennsylvania legal establishment pounced. James Wilson (later associate justice of the United States Supreme Court) and Thomas McKean (who had served 10 years as chief justice of Pennsylvania) declared that trial by jury never existed anywhere but in England and mocked Findley’s supposed ignorance.

The next day, however, Findley produced the third volume of William Blackstone’s “Commentaries on the Laws of England,” which attributed the invention of the jury to Scandinavia and recounted that when the jury ceased to be used in Sweden, that nation “degenerated into a mere aristocracy.” Wilson, who should have been more embarrassed than he was, conceded that Findley was correct—but added, superciliously, that he had forgotten more law than Findley had ever learned. No wonder Wilson was burned in effigy by Pennsylvanians who thought he was high-handed, and no wonder the opponents of the Constitution felt abused by the arrogance of the Federalists.

In Pennsylvania and elsewhere, as Ms. Maier reports, debates sometimes broke into violence. The Pennsylvania legislature gained the quorum necessary to call a ratifying convention only when a mob broke into the homes of two recalcitrant legislators and dragged them forcibly to the statehouse. When the New York convention, dominated by delegates from upstate counties, appeared adamantly opposed to ratification, metropolitan New Yorkers threatened to secede from the state, even at the risk of possible civil war. Later, Rhode Island was coerced into ratification by an act of Congress cutting off all trade. Any merchant caught trading with Rhode Islanders would face confiscation of his ship, a substantial fine and up to six months’ imprisonment.

A particularly notorious incident occurred in Albany, N.Y., on the Fourth of July, 1788. After hearing news of Virginia’s ratification, supporters of the Constitution staged a noisy celebration. Infuriated opponents counter-marched, publicly burned a copy of the Constitution, and later assaulted a group of supporters with clubs, stones and bricks. Federalists then trashed the tavern where the Anti contingent met and took several prisoners.

Later that month, in the middle of the night, 500 supporters of the Constitution in Manhattan attacked the premises of the New-York Journal, the one newspaper in the city that had regularly published essays critical of the Constitution. According to Ms. Maier, they smashed the windows and threw printing equipment into the street. The publisher, Thomas Greenleaf, escaped through a back door. The publisher of a rival paper commented: “God save us, if these be the dawnings of the new federal government.”

Religion, too, reared its head in unexpected ways. The Constitutional Convention famously conducted its proceedings without a chaplain or daily prayer, but the Virginia and New York ratifying conventions began each day with a prayer, without controversy or objection. Two of the ratifying conventions met in church buildings. Delegates in several states worried that the Constitution would allow “Jews, deists, and infidels” to hold office. Yet when the New York City supporters of the Constitution scheduled a procession to celebrate ratification by the nine states necessary to form the new government, they postponed it out of respect for a Jewish holiday. When the procession did take place, clergy of various denominations walked hand-in-hand. Among them was a bearded rabbi.

History is written by the winners. Opponents of the Constitution have long been dismissed as being motivated by fear of outsiders, narrow self-interest, and localized concerns. It used to be thought that most of the critics fought against the Constitution because its superior court system and prohibitions on paper money would force them to pay their lawful debts. And of course there was some of that. But Ms. Maier emphasizes that the overriding concern of the Constitution’s opponents was with the defense of liberty against federal overreach and the lack of proper representation of the people.

Still more interesting: Federalists shared these concerns. The vast majority on both sides of the issue wanted a decentralized federal system of limited government, responsive to the people and protective of their rights. The difference was over how to achieve this. As Ms. Maier tells the story, the Constitution’s critics sought more to improve the plan through amendments than to scuttle it, and to a great extent they succeeded. Not only did they obtain amendments, which we call the Bill of Rights, but the critics also won a host of other assurances: states would retain their autonomy; the federal government would be allowed to impose few taxes other than tariffs; and the nation would rely mostly on state militias rather than a large standing army. All of these concessions addressed Anti-Federalist demands or concerns.

Far more than the Constitutional Convention, the ratification debates touched on fundamental questions of liberty and order, and their relation to centralization and practical democracy. The immediate concerns of the young nation were resolved—the Constitution was ratified, with amendments. But those fundamental questions would recur, as fundamental questions always do, at key junctures of history when citizens feel the need for guidance about how to carry forward what Washington called “the experiment entrusted to the hands of the American people.” We seem to live in such a time.

Mr. McConnell, a former federal judge, is the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution.


Full article and photo: http://online.wsj.com/article/SB10001424052702304410504575560882312246198.html