Ratification: The People Debate the Constitution, 1787-1788

"The story of how the Constitution was ratified is just as remarkable as the story of how it was framed. By the end of 10 months of public debate, each of the 11 states that originally ratified the Constitution had independently adopted it. States could recommend amendments, but the only binding action they could take was to vote the entire Constitution up or down. Comparing that process to what Europeans have been going through over the last decade with the EU constitutional treaty makes you think the framers were geniuses. They came up with a remarkably efficient way to get the Constitution adopted. It required a lot of debate and a lot of political manoeuvring but it was ratified in less than a year. Until Pauline Maier published this book, that story has never been well told. There have been examinations of particular state debates. There was one older narrative, which was adequate. But no one has looked at ratification as comprehensively. Recently, the Historical Society of Wisconsin compiled some 20 volumes of ratification debate records. Maier uses those records cohesively and effectively. She tells a great story. They won the day in various ways. Under the Articles of Confederation you needed all 13 states to approve amendments. The framers of the Constitution said, “We’re only going to require the approval of nine states to replace the Articles.” Since state legislatures might lose power under the new Constitution, the ratification went through constitutional conventions rather than legislatures. It was a gimmick that worked. Ratification got off to a good start. The Federalists got six states to ratify within the first few months of debate. They made one big mistake in Pennsylvania, which was the second most populous state at the time. The Pennsylvania convention was divided into two parties: two-thirds of the members were Federalists who supported ratification; another third were anti-Federalists who opposed it. The Federalist majority rode roughshod over the anti-Federalist minority. That played poorly in the press – it looked as if the Federalists were being overly manipulative and insufficiently democratic. Criticism of what took place in Pennsylvania helped make the overall process of ratification elsewhere fairer. Furthermore, Federalists didn’t control all the press but they did dominate it. They got George Washington and Benjamin Franklin on their side. They capitalised on the prevailing sense that the Articles of Confederation, which came into effect towards the end of the Revolutionary War, were riddled with problems. Whatever controversy there might be about particular provisions of the federal constitution, it seemed more promising than the Articles. Maier walks us through the debates, one by one, so we understand how the politics of ratification played out within individual states. If you read Maier, you get to see the complexities of what happens when citizens are given the opportunity to discuss their national constitution. Most historians are very sceptical about the way that the Supreme Court is doing this. To reason accurately about the past is much trickier than one might think. The current version of originalism is what’s called “public meaning originalism”. It says we don’t really care about the history of how these provisions got adopted, we’re not going to try to reconstruct the debates to figure out what the framers wanted and what the ratifiers thought. We just want to get at the holistic meaning of the language. To historians this is a terribly flawed enterprise, but that’s the current regime."