Ratification Debate: Power, Rights & New York — Print · Grade 7 Social Studies

Part 1 · Two sides, badly named

The labels mislead and it is worth saying so at the start. A federal system is one in which power is divided between a centre and its parts, so the people most committed to that division were the Anti-Federalists. Their opponents, who wanted a far stronger centre, took the name Federalists first and left their critics defined by a negative. It was effective and it was not accurate.

The Anti-Federalists were not cranks or losers in the argument's own terms. They included George Mason, who had written Virginia's Declaration of Rights and refused to sign the Constitution; Patrick Henry, the most famous orator of the Revolution; and in New York Clinton and Melancton Smith, an able debater who led the opposition at Poughkeepsie.

They were also, in one important respect, better prophets than their opponents. Brutus — probably the New York judge Robert Yates, who had walked out of the Philadelphia convention — predicted in 1788 that the Supreme Court would become the final judge of the Constitution's meaning, answerable to nobody, and that its reading would expand federal power over time. Marbury in 1803 and two centuries of expansion since suggest he read the document more accurately than the men defending it.

Their case rested on a respectable principle. Montesquieu, whom everyone had read, held that a republic could only survive in a small territory, because self-government depends on citizens sharing interests and knowing their representatives. A republic stretching from Georgia to New Hampshire would, on that reasoning, have to become either a tyranny or a collection of strangers.

Part 2 · What each side was afraid of

The Anti-Federalist objections were specific. There was no bill of rights. A standing army in peacetime was permitted, which every student of the Roman republic knew was how republics died. The necessary and proper clause and the supremacy clause seemed open-ended enough to swallow anything. The Senate, with six-year terms and members chosen by legislatures, looked like an aristocracy in waiting. And federal courts would sit far from the people whose disputes they settled.

The Federalist answer came mainly through the eighty-five essays published in New York newspapers between October 1787 and August 1788 under the name Publius — fifty-one by Hamilton, twenty-nine by Madison, five by Jay. They were journalism aimed at this fight, not philosophy written for posterity, which is why they are so concrete.

The essays were a newspaper campaign and were treated as one. They appeared two or three a week in the New York press, were reprinted in other states, and were answered in the same columns by Brutus and Cato within days. Hamilton organised the whole effort and wrote at a pace that suggests the deadline mattered more than polish. That they are now read as founding philosophy is a later honour; in 1788 they were argument aimed at delegates who had not yet voted.

Madison's Federalist 10 turned the Montesquieu argument upside down. Faction, he argued, is unavoidable because people differ in property and opinion, and a small republic is the most vulnerable to it, because one faction can easily become a majority and oppress the rest. Enlarge the republic and you multiply the factions, so no single one can dominate and any majority must be assembled from many interests. Size, on this argument, is the protection rather than the danger.

Part 3 · Poughkeepsie

New York's convention opened in June 1788 with the Anti-Federalists holding roughly two to one. Hamilton's tactic was delay: argue clause by clause, keep the convention sitting, and wait for news from elsewhere. It worked because the news arrived.

New Hampshire ratified on 21 June, which made nine and brought the Constitution into effect whatever New York did. Virginia ratified on 25 June, removing the hope of a southern bloc standing out together. The question in Poughkeepsie changed from whether the Constitution was a good one to whether New York wished to be a foreign country between New England and the rest.

There was also a threat close to home. New York City was strongly Federalist, and it was openly suggested that the city and the southern counties might separate and join the union on their own, taking the port and the customs revenue with them. Melancton Smith, who had argued ably against ratification for weeks, finally moved to ratify with recommended amendments. The vote was 30 to 27.

Part 4 · The losers wrote part of the result

Massachusetts had found the formula that made ratification possible: approve the Constitution and simultaneously recommend amendments. Several states followed, and the recommendations ran to more than two hundred proposals. Madison sifted them into the twelve he introduced in 1789, ten of which became the Bill of Rights in 1791.

New York attached a long list of its own. Its instrument of ratification ran to pages of proposed amendments and a declaration of the rights its delegates believed were retained, and it called for a second general convention to consider them — a call Virginia had made too and which came uncomfortably close to succeeding. Madison introduced his amendments in Congress partly to head that off, judging that a second convention might reopen everything.

So the Anti-Federalists lost the vote and won the most quoted part of the document. The First Amendment exists because people who opposed the Constitution refused to accept it without written limits, and the Federalists who had argued such limits were unnecessary wrote them to keep their promise.

Smith's change of position deserves respect rather than suspicion. He had led the opposition for six weeks and had argued, correctly, that the document gave too much away without securing rights. Once nine states had ratified he judged that keeping New York out would damage his state without improving the Constitution, and that recommending amendments from inside was the better route to the protections he wanted. The Bill of Rights two years later suggests he was right.

The last two states held out and show how real the pressure was. North Carolina refused in 1788 and ratified only in November 1789, after the amendments had been sent to the states. Rhode Island, which had never sent delegates to Philadelphia at all, held out until May 1790 and ratified thirty-four to thirty-two, after Congress began discussing treating it as a foreign nation for trade purposes.