CHAPTER
3

Ratification and the Bill of Rights

In This Chapter

• Beginning ratification
• Objections from the states
• Changing minds with the Federalist Papers
• The Bill of Rights
• What about slaves and Native Americans?

Ratification of the new Constitution by the states was not a slam dunk. Some states had objections to the omission of a Bill of Rights. And some states did not want a new Constitution at all.

Madison and his allies resorted to writing and publishing a series of articles called the Federalist Papers that served—and still serve—as some of the clearest explanations of the Constitution, and some of the best rationale for ratification.

The Constitution was ratified, of course, creating a new government with George Washington as the first president. The Bill of Rights was soon added in the form of the first 10 Amendments.

The Process of Ratification

On September 17, 1787, the convention put the Constitution to a vote. Among the original 55 delegates, 13 had gone home already, some because of political objections and some because of personal or professional obligations. Three delegates still at the convention refused to sign.

One of the continuing concerns throughout the long summer had been whether the Constitution should include provisions protecting individual liberty—a Bill of Rights. One of those who abstained, Roger Mason, who had drafted Virginia’s Bill of Rights, said he could not endorse the Constitution without a national Bill of Rights. Back in Massachusetts, another founding father, Sam Adams, agreed that the convention should have included a Bill of Rights to protect individual freedoms such as speech and religion.

However, James Madison and other leaders at the convention argued that a Bill of Rights was not necessary because individual rights were protected in the bills of rights the states were including in their individual constitutions.

On the other hand, those calling for a federal Bill of Rights were afraid that a strong central government might someday restrict the individual rights of citizens, even if those rights were guaranteed by state laws.

Madison acknowledged those concerns, but he and other leaders were afraid that introducing something as large and potentially controversial as a Bill of Rights would risk further friction and delays at the convention that could imperil passage of the Constitution. The vast majority of the delegates agreed—no Bill of Rights would be debated, at least not then, in Philadelphia. The delegates wanted to get the job done and go home before the winter of 1787 settled on them.

The Constitution was, and still is, a model of brevity. The final draft of the original seven Articles and the Preamble, as approved by the delegates, was about 4,400 words, compared with the typical 26,000 words for a state constitution. (Although over the years, the 27 amendments swelled the count for today’s U.S. Constitution to a still-succinct 7,500 words.)

Signing the Constitution

George Washington was the first to sign the new Constitution on September 17, followed by the delegates from the states, in order, from north to south. Alexander Hamilton signed, but because the other two members of the New York delegation had departed, New York did not have a quorum and its vote did not count. But 11 states approved, and only 9 were required under Article VII, so the Constitution was approved, sent to printers, and dispatched from the Constitutional Convention to the Confederation Congress and the 13 state legislatures for ratification.

During the long convention, delegates had often remarked on the Chippendale chair, decorated with a sun on the back, that had served as Washington’s presiding seat throughout the proceedings. When Franklin rose and gave a final speech, he noted that he and other delegates had often wondered, through that long summer, whether the sun was rising or setting on their infant nation. Now, he said, with the signing of the Constitution, he knew: it was a rising sun.

We the People

“The makers of our constitution undertook to secure conditions favorable to the pursuit of happiness …. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of the rights and the right most valued by civilized men, ….”

—Supreme Court Justice Louis Brandeis

The story may be apocryphal, but it has been widely reported over the years that a woman who knew Benjamin Franklin encountered him as he was leaving what is now Independence Hall after the signing ceremony. The framers had done an admirable job keeping their proceedings secret through all those months—there was still talk in the coffee shops and some newspapers of making Washington king, even though the delegates never seriously considered it—and now the public was eager for news. The woman reportedly asked, “Well, Doctor Franklin, what have we got? A republic or a monarchy?”

Franklin supposedly answered immediately. “A republic,” he replied. “If you can keep it.”

That evening, after the signing ceremony in Philadelphia, most of the delegates celebrated with a convivial supper at the City Tavern on Second Street. Within a day or two, many of them had packed up and headed home, knowing they would be called on to explain and defend the new Constitution to their states’ citizens and legislatures.

The States Vote

When the delegates returned to their home states, they typically followed a common line: “This is a good Constitution, maybe a very good one, but it is not without flaws.” Nobody liked everything in the Constitution, but it was good enough. It provided the framework for growth, ensured balanced state and federal power, and was flexible enough to be changed.

The Constitution was generally well received by the public. It meant a lot to have so many big names from the Revolution attached—Benjamin Franklin, James Madison, Alexander Hamilton, John Jay, and especially George Washington. But there was still stiff opposition from two different groups, the anti-Federalists who thought the Constitution went too far in limiting the rights of the states, and the liberal critics who thought it didn’t go far enough in protecting individual rights, particularly in failing to have a Bill of Rights. Some people were in both camps with misgivings toward the Constitution.

The first wave of ratification came quickly. The Delaware Legislature was the first state to vote to ratify the Constitution on December 7, 1787. Pennsylvania followed on December 12, and New Jersey on December 18. Georgia ratified on January 2, 1788, followed by Connecticut on January 9. Massachusetts voted in favor of ratification on February 7, but it was close—187 for, 168 against. If 10 votes had gone the other way, Massachusetts would have rejected the Constitution. That was one of several very narrow votes to ratify. In Virginia and New Hampshire, the Constitution would have been rejected with a swing of 5 votes each, and in New York, only 2 votes would have had to change.

To build support, in the autumn of 1787, soon after the convention ended, James Madison, John Jay, and Alexander Hamilton began publishing a series of articles called the Federalist Papers, explaining and promoting the Constitution. These essays—eventually 85 in all—were published under the pseudonym Publius. (In those days, it was common for pamphlets and newspaper articles to be published anonymously because newspapers had relatively little straightforward news as we know it, especially local news. Periodicals were rife with opinion, and people were typically drawn to those that espoused their particular political slant, much like some television news networks today. Madison probably reckoned, correctly, that his arguments in favor of the Constitution would be considered more fairly if his name wasn’t on them.)

To appease those demanding more protections for individual liberties, Madison and other leading Federalists agreed to push for a Bill of Rights after the Constitution was ratified and the new U.S. government was functioning. The promise apparently helped push other states to vote for ratification: Maryland in April, South Carolina in May, and New Hampshire and Virginia in June. The June 21 endorsement by New Hampshire was the ninth from the states and meant that the Constitution was ratified. Virginia followed 4 days later. On July 2, the Confederation Congress made the formal announcement: America had a new Constitution. New York, North Carolina, and Rhode Island were the remaining states holding out, but to no purpose. The Constitution would go into effect with or without their votes.

On July 23, 1788, thousands of professionals, artists, and craftsmen marched through the streets of New York City in support of the Constitution. Three days later, the New York State Legislature finally approved it by a vote of 30 to 27. Like a number of other states, New York’s vote came with a call for amendments, including a Bill of Rights. North Carolina eventually voted for ratification in 1789, and Rhode Island in 1790.

Today’s critics of the modern federal government and its power might fondly note the period from November 1, 1788, to April 1, 1789, when the United States formally had no central government. The first presidential election was held on February 4, 1789, and George Washington defeated John Adams 69 to 34 in the Electoral College to become the first president. Adams, as the runner-up, became the first vice president.

The new Congress was supposed to open its first session on March 4, 1789—and thereby mark the beginning of the new federal government. But just as bad roads kept the Constitutional Convention from starting on time in Philadelphia 2 years earlier, it took until April 1 to gather a quorum in the House of Representatives and until April 6 in the Senate.

Adams was sworn in as vice president on April 21, and Washington, then 57 years old, was sworn in on April 30 on the balcony of Federal Hall. (The original hall was demolished long ago, but the site—26 Wall Street, then and now, the heart of the Financial District—became the Federal Hall National Memorial, part of the National Park Service.) Throngs watched Washington swear the oath of office, his hand on a Bible borrowed from a nearby Masonic lodge, and then ad lib the words, “So help me God,” at the end of the oath. He was required, by an act of Congress, to attend a service afterward at nearby St. Paul’s Church. An inaugural ball was held a week later.

In the autumn of 1789, Congress established the judiciary with the first federal courts—the Supreme Court, the federal district courts, and three regional circuit courts that became the U.S. Courts of Appeal. Congress also established the U.S. Army—a standing force of 1,000 men—along with the national census and the Thanksgiving holiday.

We the People

After two terms in the House, Madison served as Thomas Jefferson’s secretary of state from 1801 to 1809 and then was elected to succeed Jefferson. He served as the fourth U.S. president, from 1808 to 1816. His wife, Dolley Madison, is widely credited for defining the public role of First Lady. Madison was known as a benevolent slave owner, but he never freed Montpelier’s slaves.

The Bill of Rights

The failure to offer a Bill of Rights at the Constitutional Convention was a rare miscalculation by James Madison. But he was able, through the Federalist Papers and his own assurances to critics, to achieve ratification of the Constitution and then soon add the Bill of Rights.

Madison, who had narrowly defeated another future president, James Monroe, for a seat in the first House of Representatives, proposed the amendments that became the Bill of Rights. The Bill of Rights was probably familiar, at least in concept, to many Americans, as an echo of the Bill of Rights that was part of their respective state constitutions. Freedom of speech, for example, was a given—that was sure to be in the federal Bill of Rights. So was freedom of assembly, freedom of religion, and the right to bear arms, along with the right to a free trial and guarantees against cruel and unusual punishment.

But Madison offered a few unexpected wrinkles. For instance, the states more often said they “ought not” violate the freedom of the press. Madison, in the First Amendment, wrote that the government “shall not” impinge upon freedom of the press. Most of the states did not require compensation to private citizens when the government took their property via eminent domain, but Madison included compensation in the federal Bill of Rights. Double jeopardy—the prohibition against being tried twice for the same offense—was another Madison effort to strengthen the Bill of Rights beyond the rights typically guaranteed by the states.

Once approved by Congress and ratified by the states, the Bill of Rights became part of the Constitution in 1791. The assurances in the Bill of Rights originally applied to the federal government only; those assurances were expanded to cover the states, too, beginning with the Fourteenth Amendment in 1868.

Considering Slaves and Native Americans

In retrospect, many believe a greater failing by Madison and the other framers was putting off resolution of the issues of slavery and treatment of Native Americans.

We the People

“It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.”

—John Jay, statesman, diplomat, politician, and the first Chief Justice of the Supreme Court

Yes, the United States was the first government built entirely from scratch, with an entirely new structure that became a model for many other governments around the world as they struggled out of monarchy, dictatorships, and colonialism. But it was hypocritical, at best, to declare a new nation based on the natural rights of human beings and the rule of law while at the same time ignoring or even violently abusing the rights of Native Americans and African Americans, who together represented a substantial part of the population. One in five Americans was a slave at the birth of the United States. Nobody knows how many Indians there were because they were not counted, and little thought was given to the future of Native Americans despite the inevitability of a huge westward population expansion.

Many of the convention delegates, including some of the Northerners, owned slaves or had owned them in the past. Many of the slave owners, even the Southerners, had misgivings about the morality of slavery. Yet the framers were constrained by the realities of eighteenth-century economics. Much of their personal wealth was tied up in land and slaves—and their land was worth much less without slaves to work the farms and plantations. The economy of the South—and maybe the entire continental economy—would have collapsed without slaves.

It was not unusual for prominent Americans, including some of the founding fathers, to own slaves, hate slavery, yet refuse to set their slaves free. Virginia’s George Mason was one of the prominent slave owners at the Constitutional Convention who had qualms about the morality of owning another human being. During a debate on slavery, he warned, “By an inevitable chain of causes and effects, providence punishes national sins by national calamities.” He did not list potential calamities, but certainly the Civil War would count.

Thomas Jefferson, himself a prominent slave owner, described the slavery issue as trying to hold “a wolf by the ears.” In the Confederation Congress, he tried to ban slavery in any new states beyond the original 13. He also called for a ban on slavery after 1800. Both those proposals were defeated. The word slavery does not appear in the Constitution.

Beyond resolving the slave question in terms of population for voting purposes—were they property or were they people?—with the clumsy “three-fifths” compromise, the Constitutional Convention’s only potential restraint on slavery was a prohibition against Congress banning slavery for at least 20 years, not before 1808. As it turned out, of course, slavery lasted much longer, until the Civil War.

Between the signing of the Declaration of Independence and the signing of the Emancipation Proclamation in 1863, the slave population of the United States grew from about 500,000 to an estimated 4 million.