By the time that the Constitutional Convention met in Philadelphia in 1787, Americans had a long history of writing and adopting constitutions. Before the Revolution, all of the colonies operated under written charters that established the form of government, pledged allegiance to the king, and in many instances protected individual rights. Two months before independence was declared, the Second Continental Congress on May 15, 1776, recommended the replacement of these colonial charters with new constitutions amenable to the people. John Adams wrote that the ancient lawgivers would be jealous of the opportunity afforded Americans of writing constitutions for three million people.
All of the provincial legislatures drafted constitutions or adjusted their charters and then, by fiat, declared these new documents to be in force. Only in Massachusetts, the last state to draft a new constitution, did the provincial legislature submit its proposal to the people for their approval in town meetings, where, in 1778, freemen rejected the draft constitution because it was not written by a specially elected constitutional convention. The next year such a convention drafted a constitution which Massachusetts freemen approved. This constitution of 1780 and its process of ratification would serve as a model for future American constitution-writing. In 1783 a convention revised New Hampshire’s “temporary” constitution of 1776, and the freemen followed Massachusetts’ example by ratifying it in town meetings.
In June 1776, the Second Continental Congress appointed a committee to draft articles of confederation. The final draft was submitted to the state legislatures in November 1777 for their unanimous approval. Seven states ratified the Articles quickly while also submitting proposed amendments to the Articles. Congress rejected all of the proposed amendments. It took three and a half years to ratify the Articles because of the requirement of the unanimous approval of the state legislatures. Between 1781 and 1787, Congress proposed and the states considered half a dozen amendments to the Articles to strengthen the powers of Congress. All of them had the support of a large majority of both the states and the people. But because the Articles required the unanimous ratification of the state legislatures, none of the amendments were adopted. Slim majorities in one or two states opposed the transference of power from the states to Congress. The delegates to the Constitutional Convention of 1787 were familiar with this decade-long constitutional heritage.
Preparing the Public for a New Constitution
The first steps in ratifying the new constitution occurred before and during the meeting of the Constitutional Convention in Philadelphia in May 1787. A widespread, uncoordinated campaign took place throughout the country to convince the people that the Articles of Confederation needed to be revised to maintain the Union. David Humphreys of Connecticut wrote to George Washington shortly after the Convention adjourned that “the well-affected have not been wanting in efforts to prepare the minds of the citizens for the favorable reception of whatever might be the result of your Proceedings. . . . Judicious & well-timed publications have great efficacy in ripening the judgment of men.” All of America’s newspapers supported the Convention and encouraged their readers to adopt whatever was proposed. The printers of the Northern Centinel in Lansingburgh, N.Y., admitted that they “conceived it as a duty incumbent on them to prepare the minds of their readers for” the Convention’s proposal. This widespread confidence was generated partially because of the stature of the Convention delegates, particularly George Washington and Benjamin Franklin. Consequently, when the Convention adjourned the American people and their state legislatures had a proclivity to accept the Convention’s recommendations.
The Constitutional Convention Plans a Process of Ratification
The next step in ratification occurred in the Constitutional Convention itself when the delegates determined the method most likely to ensure their proposal’s adoption. With Rhode Island not even represented in the Convention and New York likely to oppose any significant transfer of power from the states to Congress, the delegates knew that the unanimity requirement of the Articles would doom any hopes of ratification. The delegates felt it necessary to obtain majorities of both states and people. Ratification by seven small states might not provide a majority of people. On August 31, the delegates decided (by a vote of eight states to three) that nine states would be appropriate to implement the Constitution among the ratifying states—nine was the number of states necessary in the Confederation Congress to adopt important matters such as borrowing money, declaring war, ratifying treaties, and admitting new states into the Union.
The Convention also decided to substitute state conventions instead of state legislatures as the bodies to consider ratification. A proposal to allow each of the states their own discretion in deciding its method of ratification was rejected. Philosophically, by having conventions representing the will of the people directly, this process would make the new federal Constitution superior to any specific legislature. Politically, it would be easier to obtain ratification from ad hoc state conventions that would meet only once and then disappear forever as opposed to having legislatures consider giving up some of their own powers. Furthermore, eleven states had bicameral legislatures, meaning that two struggles would be necessary to obtain a single state’s adoption. Conventions would also allow prominent men who were not state legislators to participate in the ratification debate. Many prominent men throughout the country had retired from public service, while others were prohibited by law from serving in state legislatures—governors, judges, delegates to Congress, and in five states, religious ministers. All of these men could be elected to a state convention. In addition, property and residence requirements could be reduced or eliminated in voting for convention delegates, making the conventions more representative of the people at large. Finally, the Constitutional Convention removed the Articles’ requirement that Congress approve any change in the Articles. It was felt inappropriate to require Congress to agree to its own demise.
The Confederation Congress Considers the New Constitution
When the Constitutional Convention adjourned on September 17, 1787, delegates were given copies of the six-page broadside report printed by Dunlap and Claypool, printers of the Pennsylvania Packet, who were also the Convention’s official printers. The Convention sent its engrossed Constitution to Congress where it was formally received and read on September 20. Between September 26 and 28, Congress debated in secret whether it should comply with the wishes of the Convention and send the Constitution to the states asking them to call specially-elected state conventions to consider ratification. A large majority of the congressional delegates were Federalists, supporters of the Constitution, who wanted to forward it to the states with the approbation of Congress. A handful of opponents—soon to be called Antifederalists—proposed to send the Constitution to the states with amendments, including a bill of rights that was proposed by Richard Henry Lee of Virginia. Antifederalists also wanted to indicate that the ratification process suggested by the Philadelphia Convention violated the amendment procedure provided by the Articles of Confederation and the congressional resolution of February 21, 1787, that called for the Convention only to amend the Articles. Furthermore, the delegates themselves had violated their own instructions from their state legislatures which also called for only amendments to the Articles, not a completely new constitution.
James Madison of Virginia argued against any amendments, suggesting that some states might ratify the Constitution with amendments and some without them. With an overwhelming majority, Federalists could easily have sent the Constitution to the states with approbation. But, because they wanted to avoid any indication that there was opposition to the Constitution in Congress, they agreed to send the Constitution to the states without congressional approbation if all debate over the Constitution (including Lee’s bill of rights) would be stricken from Congress’ Journals. Astute politicians, Federalist leaders then included the word “unanimously” in the congressional resolution of September 28, 1787, sending the Constitution to the states with the recommendation that specially-elected conventions be called to ratify the Constitution. When told of the trickery, Washington responded to Madison: “Not everyone has opportunities to peep behind the curtain; and as the multitude often judge from externals, the appearance of unanimity in that body, on this occasion, will be of great importance.”
Antifederalists throughout the country willingly accepted the new ratification procedure. Only in Rhode Island did the state legislature refuse to call a ratifying convention, preferring instead to hold a popular referendum on the Constitution. Antifederalists also accepted two Federalist positions: (1) that the Constitution in its entirety must be either adopted or rejected and (2) that the ratifying conventions should not propose amendments as a requirement before they would ratify the Constitution. Accepting these Federalist “rules of the road” and abandoning the ratification procedure provided by the Articles of Confederation made ratification of the new Constitution much more likely.
To read more on this topic: See The Confederation Congress and the Constitution