Chapter 1
In the Beginning
The Pennsylvania Packet, and Daily Advertiser (September 19, 1787).
When, after a summer of closed meetings in Philadelphia, America’s leading statesmen went public with their proposed Constitution on September 17, 1787, newspapers rushed to print the proposal in its entirety. In several printings, the dramatic words of the Preamble appeared in particularly large type.
It started with a bang. Ordinary citizens would govern themselves across a continent and over the centuries, under rules that the populace would ratify and could revise. By uniting previously independent states into a vast and indivisible nation, New World republicans would keep Old World monarchs at a distance and thus make democracy work on a scale never before dreamed possible.
“We . . . do”
With simple words placed in the document’s most prominent location, the Preamble laid the foundation for all that followed. “We the People of the United States, . . . do ordain and establish this Constitution . . .”
These words did more than promise popular self-government. They also embodied and enacted it. Like the phrases “I do” in an exchange of wedding vows and “I accept” in a contract, the Preamble’s words actually performed the very thing they described. Thus the Founders’ “Constitution” was not merely a text but a deed—a constituting. We the People do ordain. In the late 1780s, this was the most democratic deed the world had ever seen.
Behind this act of ordainment and establishment stood countless ordinary American voters who gave their consent to the Constitution via specially elected ratifying conventions held in the thirteen states beginning in late 1787. Until these ratifications took place, the Constitution’s words were a mere proposal—the text of a contract yet to be accepted, the script of a wedding still to be performed.
The proposal itself had emerged from a special conclave held in Philadelphia during the summer of 1787. Twelve state governments—all except Rhode Island’s—had tapped several dozen leading public servants and private citizens to meet in Philadelphia and ponder possible revisions of the Articles of Confederation, the interstate compact that Americans had formed during the Revolutionary War. After deliberating behind closed doors for months, the Philadelphia conferees unveiled their joint proposal in mid-September in a document signed by thirty-nine of the continent’s most eminent men, including George Washington, Benjamin Franklin, James Wilson, Roger Sherman, James Madison, Alexander Hamilton, Gouverneur Morris, John Rutledge, and Nathaniel Gorham. When these notables put their names on the page, they put their reputations on the line.
An enormous task of political persuasion lay ahead. Several of the leaders who had come to Philadelphia had quit the conclave in disgust, and others who had stayed to the end had refused to endorse the final script. Such men—John Lansing, Robert Yates, Luther Martin, John Francis Mercer, Edmund Randolph, George Mason, and Elbridge Gerry—could be expected to oppose ratification and to urge their political allies to do the same. No one could be certain how the American people would ultimately respond to the competing appeals. Prior to 1787, only two states, Massachusetts and New Hampshire, had ever brought proposed state constitutions before the people to be voted up or down in some special way. The combined track record from this pair of states was sobering: two successful popular ratifications out of six total attempts.
In the end, the federal Constitution proposed by Washington and company would barely squeak through. By its own terms, the document would go into effect only if ratified by specially elected conventions in at least nine states, and even then only states that said yes would be bound. In late 1787 and early 1788, supporters of the Constitution won relatively easy ratifications in Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. Massachusetts joined their ranks in February 1788, saying “we do” only after weeks of debate and by a close vote, 187 to 168. Then came lopsided yes votes in Maryland and South Carolina, bringing the total to eight ratifications, one shy of the mark. Even so, in mid-June 1788, a full nine months after the publication of the Philadelphia proposal, the Constitution was still struggling to be born, and its fate remained uncertain. Organized opposition ran strong in all the places that had yet to say yes, which included three of America’s largest and most influential states. At last, on June 21, tiny New Hampshire became the decisive ninth state by the margin of 57 to 47. A few days later, before news from the North had arrived, Virginia voted her approval, 89 to 79.
All eyes then turned to New York, where Anti-Federalists initially held a commanding lead inside the convention. Without the acquiescence of this key state, could the new Constitution really work as planned? On the other hand, was New York truly willing to say no and go it alone now that her neighbors had agreed to form a new, more perfect union among themselves? In late July, the state ultimately said yes by a vote of 30 to 27. A switch of only a couple of votes would have reversed the outcome. Meanwhile, the last two states, North Carolina and Rhode Island, refused to ratify in 1788. They would ultimately join the new union in late 1789 and mid-1790, respectively—well after George Washington took office as president of the new (eleven!) United States.
Although the ratification votes in the several states did not occur by direct statewide referenda, the various ratifying conventions did aim to represent “the People” in a particularly emphatic way—more directly than ordinary legislatures. Taking their cue from the Preamble’s bold “We the People” language, several states waived standard voting restrictions and allowed a uniquely broad class of citizens to vote for ratification-convention delegates. For instance, New York temporarily set aside its usual property qualifications and, for the first time in its history, invited all free adult male citizens to vote.1 Also, states generally allowed an especially broad group of Americans to serve as ratifying-convention delegates. Among the many states that ordinarily required upper-house lawmakers to meet higher property qualifications than lower-house members, none held convention delegates to the higher standard, and most exempted delegates even from the lower. All told, eight states elected convention delegates under special rules that were more populist and less property-focused than normal, and two others followed standing rules that let virtually all taxpaying adult male citizens vote. No state employed spe-cial election rules that were more property-based or less populist than normal.
In the extraordinarily extended and inclusive ratification process envisioned by the Preamble, Americans regularly found themselves discussing the Preamble itself. At Philadelphia, the earliest draft of the Preamble had come from the quill of Pennsylvania’s James Wilson,3 and it was Wilson who took the lead in explaining the Preamble’s principles in a series of early and influential ratification speeches. Pennsylvania Anti-Federalists complained that the Philadelphia notables had overreached in proposing an entirely new Constitution rather than a mere modification of the existing Articles of Confederation. In response, Wilson—America’s leading lawyer and one of only six men to have signed both the Declaration of Independence and the Constitution—stressed the significance of popular ratification. “This Constitution, proposed by [the Philadelphia draftsmen], claims no more than a production of the same nature would claim, flowing from a private pen. It is laid before the citizens of the United States, unfettered by restraint. . . . By their fiat, it will become of value and authority; without it, it will never receive the character of authenticity and power.”4 James Madison agreed, as he made clear in a mid-January 1788 New York newspaper essay today known as The Federalist No. 40—one of a long series of columns that he wrote in partnership with Alexander Hamilton and John Jay under the shared pen name “Publius.” According to Madison/Publius, the Philadelphia draftsmen had merely “proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. [The proposal] was to be submitted to the people themselves, [and] the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregu-larities.” Leading Federalists across the continent reiterated the point in similar language.
With the word fiat, Wilson gently called to mind the opening lines of Genesis. In the beginning, God said, fiat lux, and—behold!—there was light. So, too, when the American people (Publius’s “supreme authority”) said, “We do ordain and establish,” that very statement would do the deed. “Let there be a Constitution”—and there would be one. As the ulti-mate sovereign of all had once made man in his own image, so now the temporal sovereign of America, the people themselves, would make a constitution in their own image.
All this was breathtakingly novel. In 1787, democratic self-government existed almost nowhere on earth. Kings, emperors, czars, princes, sultans, moguls, feudal lords, and tribal chiefs held sway across the globe. Even England featured a limited monarchy and an entrenched aristocracy alongside a House of Commons that rested on a restricted and uneven electoral base. The vaunted English Constitution that American colonists had grown up admiring prior to the struggle for independence was an imprecise hodgepodge of institutions, enactments, cases, usages, maxims, procedures, and principles that had accreted and evolved over many centuries. This Constitution had never been reduced to a single composite writing and voted on by the British people or even by Parliament.
The ancient world had seen small-scale democracies in various Greek city-states and pre-imperial Rome, but none of these had been founded in fully democratic fashion. In the most famous cases, one man—a celebrated lawgiver such as Athens’s Solon or Sparta’s Lycurgus—had unilaterally ordained his countrymen’s constitution. Before the American Revolution, no people had ever explicitly voted on their own written constitution.
Nor did the Revolution itself immediately inaugurate popular ordainments and establishments. True, the 1776 Declaration of Independence proclaimed the “self-evident” truth that “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” The document went on to assert that “whenever any Form of Government becomes destructive of [its legitimate] Ends, it is the Right of the People to alter and abolish it, and to institute new Government.” Yet the Declaration only imperfectly acted out its bold script. Its fifty-six acclaimed signers never put the document to any sort of popular vote.
Between April and July 1776, countless similar declarations issued from assorted towns, counties, parishes, informal assemblies, grand juries, militia units, and legislatures across America.8 By then, however, the colonies were already under military attack, and conditions often made it impossible to achieve inclusive deliberation or scrupulous tabulation. Many patriots saw Crown loyalists in their midst not as fellow citizens free to vote their honest judgment with impunity, but rather as traitors deserving tar and feathers, or worse. (Virtually no arch-loyalist went on to become a particularly noteworthy political leader in independent America. By contrast, many who would vigorously oppose the Constitution in 1787–88—such as Maryland’s Samuel Chase and Luther Martin, Virginia’s Patrick Henry and James Monroe, and New York’s George Clinton and John Lansing—moved on to illustrious post-ratification careers.
Shortly before and after the Declaration of Independence, new state governments began to take shape, filling the void created by the ouster of George III. None of the state constitutions ordained in the first months of the Revolution was voted on by the electorate or by a specially elected ratifying convention of the people. In many states, sitting legislatures or closely analogous Revolutionary entities declared themselves solons and promulgated or revised constitutions on their own authority, sometimes without even waiting for new elections that might have given their constituents more say in the matter, or at least advance notice of their specific constitutional intentions.
In late 1777, patriot leaders in the Continental Congress proposed a set of Articles of Confederation to govern relations among the thirteen states. This document was then sent out to be ratified by the thirteen state legislatures, none of which asked the citizens themselves to vote in any special way on the matter.
Things began to change as the Revolution wore on. In 1780, Massachusetts enacted a new state constitution that had come directly before the voters assembled in their respective townships and won their approval. In 1784, New Hampshire did the same. These local dress rehearsals (for so they seem in retrospect) set the stage for the Preamble’s great act of continental popular sovereignty in the late 1780s.
As Benjamin Franklin and other Americans had achieved famous advances in the natural sciences—in Franklin’s case, the invention of bifocals, the lightning rod, and the Franklin stove—so with the Constitution America could boast a breakthrough in political science. Never be-fore had so many ordinary people been invited to deliberate and vote on the supreme law under which they and their posterity would be governed. James Wilson fairly burst with pride in an oration delivered in Philadelphia to some twenty thousand merrymakers gathered for a grand parade on July 4, 1788. By that date, enough Americans had said “We do” so as to guarantee that the Constitution would go into effect (at least in ten states—the document was still pending in the other three). The “spectacle, which we are assembled to celebrate,” Wilson declared, was “the most dignified one that has yet appeared on our globe,” namely, a people free and enlightened, establishing and ratifying a system of government, which they have previously considered, examined, and approved! . . .
. . . You have heard of Sparta, of Athens, and of Rome; you have heard of their admired constitutions, and of their high-prized free-dom. . . . But did they, in all their pomp and pride of liberty, ever furnish, to the astonished world, an exhibition similar to that which we now contemplate? Were their constitutions framed by those, who were appointed for that purpose, by the people? After they were framed, were they submitted to the consideration of the people? Had the people an opportunity of expressing their sentiments concerning them? Were they to stand or fall by the people’s approving or rejecting vote?
The great deed was done. The people had taken center stage and enacted their own supreme law.
Copyright © 2005 by Akhil Reed Amar. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
