The ratification of the Federal Constitution

The framing of the U.S. Federal Constitution was, thus, carried out with a violation of the Articles of the Confederation. Thirty-nine of the 55 delegates dispatched to the Philadelphia Convention decided to go ahead with the new constitutional draft even though its approval procedure was not compatible with the unanimous consent of the States required by the provisions of the Confederation agreement.

Supporters of the drafters’ initiative have been, of course, prone to justify the conventional ratification solution under a democratic perspective. If the delegates of the Philadelphia Convention considered that they were able to act without legal warrant under the pre-existing articles, it was because they argued that they were acting in a revolutionary manner according to the will of the People (Ackerman, 1993, pp. 41-42). The ratification procedures through the States’ Conventions were regarded as an expression of democratic deliberation able both to sustain constitutional supremacy (Richards, 1992-1993, p.

Such was the theory outlined by James Wilson in Pennsylvania ratifying the Convention when he refuted the idea held by the Anti-Federalists according to which the approval of the Federal Constitution and the violation of the Articles of the Confederation undermined the States' sovereignty. Wilson (quoted by Wood, 1998, pp. 530-531) said:

In all governments, whatever their form, however they may be constituted, there must be a power established from which there is no appeal, and which is therefore called absolute, supreme, and uncontrollable. The only question is where that power is lodged?.. for in truth, it remains and flourishes with the people.. The supreme power resides in the People, as the fountain of government.

The invocation of “the People” covered the legal breach. In the early years of the American Revolution, the people's constituent power was considered to be exter­nal to and above the constitutional order (see Jacobsohn and Roznai, 2020, p. 228; Partlett, 2017). That has been a usual move within the history of constitu­tionalism to confer authority to elude the existing institutions (Kay, 1987, p. 72). Alexander Hamilton stressed as well the need for recourse to the sovereign people in circumventing the State legislatures and proposing the ratification by special State Conventions (“Federalist 22,” Hamilton, Madison and Jay 1989, pp. 145­146) and, decades later, Chief Justice Marshall in M'Culloch versus Maryland also insisted on the Constitution's direct origin from the People while deny­ing the authorship of the States' sovereignties [M'Culloch v. Maryland, 17 U.S. 316, 363, 377-378, 403-405 (1819) see Gilhooley, 2019, pp. 100-104]. The idea was that whereas for ordinary decisions of law and government, the ordi­nary lawmaking institutions might be adequate surrogates for “the People,” in a constituent process ”the People” would have to speak with an alternative voice able to transcend the agencies of government (Palmer, 1966, pp.

The delegates must have reflected that in all great changes of established governments, forms ought to give way to substance.. They must have

borne in mind, that as the plan to be framed and proposed, was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out all antecedent errors and irregularities.

Thus “the unanimous consent” of the States was sacrificed by giving prevalence to the will of “the People:” in 1787 not only “the People” within the States

Violence and constituent power in America 121 but the “We the People of the United States” as mentioned in the preface of the Federal Constitution. However, it is difficult to sustain that the will of ”the People” was expressed during the ratification of the new constitutional framework. Rather, the genealogical analysis shows to what extent the approval of the federal government depended on the mobilization of a minority rather than on the consent of the majority.

To begin, the involvement of the People, according to the Federalists, did not represent a call to direct democratic channels of participation. Thus, as in Madison's view, thousands of people could not have immediately and equally participated in the countless specific decisions implicated in drafting a Constitution clause by clause (Amar, 2006, p. 14). In a different sense, and according to the Founders thought, large-scale direct referenda would have prevented the ultimate ratification votes from benefiting from detailed presentation of competing arguments. Would it be fair to ask every voter in America to drop everything for so long a period? But such arguments provided by Madison and his fellow Federalists in support of representation against popular referenda do not conceal that the representative argument for the Conventions did not affect the role of the legislatures as a representative body, the annulment of which, as we have seen, constituted the real agenda of the Philadelphia drafters.

The Convention method supposedly provided a reinforcement of the political participation of citizenry in the approval of the Constitution since the draft would be ratified not by the people's ordinary representatives but by special delegates chosen for the occasion. This ad hoc character of selection of candidates fostered, first, that only the personalities most favourable to the federal project would be inclined to present their candidatures to the Conventions' elections; and second, as some critics noticed (Beard, 1964, p. 219) that being the delegates chosen by “the People” for the particular purpose of ratifying the Constitution, the subject would be more candidly discussed and the supporters of the Constitution would better be able to concentrate their campaign of persuasion than if the debate had taken place in the legislatures. The idea of Conventions provided to the drafters a perfect masquerade to pretend that “the People” had concurred in the approval of the new federal government while, in fact, all the process would have been developed with the marginalization of a great part of the population.

As suggested above, if there had been any real intention of the framers to submit the approval of the Federal Constitution to “the People,” there would have always been the possibility to call for a popular referendum on the approval or the rejection of the draft in each State. Nevertheless, the idea was precisely to take away the Constitutional debate from populism, and this solution would have left, as Edmund Randolph observed, the discussion on the new constitutional framework at the mercy of the local demagogues (quoted by Beard, 1964, p. 219). Besides that, it should be noticed that there had already been some nega­tive experiences within the States on popular votes regarding the approval of a Constitution, such as the Massachusetts Constitutional draft passed by the leg­islative body but rejected by the voters in 1778 (Richards, 1989, p. 19; Palmer, 1968, p.

again the construction of the central government leaving the final decision on the new legal framework to the people at large.¹⁸

Though stated that the Federal Constitution was an expression of the will of the whole “People,” without the submission of the popular vote it is difficult to determine to what extent how many of “the People” favoured the adoption of the new instrument. “The People” were only allowed to participate in choosing the delegates to the State Conventions and a considerable proportion of the adult white male population was debarred from participating in the elections of delegates to the ratifying State Conventions by the prevailing property qualifications on suffrage. Despite the lack of materials regarding the vote on delegates to the States Convention in each town and county, there are some signs and data coming from dispersed places that demonstrate the tiny percentage of the population involved in the vote on the delegates. From such percentages related to the population entitled to vote [which run between 5 per cent and 10 per cent in the counties where some data are available (Beard, 1964, p. 244)] might be inferred a low turnout. The latter would indicate that the Federalists would have been successful in ensuring that the debate on the Federal Constitution would not generally have inspired the attention of the masses and, thus, that the supporters of the new regime were the ones more inclined to be mobilized.

In a different way, the Federalists were able to control the whole ratification process in the States, conducting the calling from the States' Conventions, the elections of delegates, and the deliberation and voting in the Conventions with unseemly haste, in order to impede the organization of the opposition. Such tactics were especially intense in Pennsylvania,¹⁹ Connecticut, New Jersey, Georgia, and Delaware. In places where the new instrument was more contested, some irregu­larities were perceived both in the processes to elect delegates and in the develop­ments of the Convention, so happening in Virginia (Ackerman and Katyal, 1995, pp.

The convention was called by a legislature made up in part of members who had been dragged to their seats and kept there against their wills, and so early a day was set for the election of delegates that many a voter did not know of until it was passed. Others kept away from the polls because they were ignorant of the new plan; some because they disliked it and some because they did not think the convention legally called.

The irregularities that tarnished the calling and gathering of some Conventions within the States did not hinder, however, that when New Hampshire became the ninth State to ratify the Constitution (doing so in June 1788), the general view that the constitutional draft had been made law was entrenched (Barczentewicz, 2019, p. 85; Maier, 2010, p. ix).

The Federalists, in spite of such success, did not obtain the ratification of Rhode Island and North Carolina in the first instance. Both were not brought into the Union until the new federal government was established, and both were convinced with an intense economic pressure that made the isolation of such States unviable (Ackerman and Katyal, 1995, p. 480). The prospect of coercion exercised by the government of the United States was especially intense in the case of Rhode Island, which was combined with the threat of domestic insurrection since the city of Providence planned to join other Federalist towns and to seek the protection of the federal government (Beard, 1964, pp. 235-237).

To sum up, the Federalists manipulated the invocation of “the People” during the ratification process by alienating substantial parts of society that had been politically active during the independence of the American States and the years of the Confederation. Looking at such developments allowed, for instance, Governor Clinton of New York to charge that the Federal Constitution had been “founded in usurpation” (quoted by Kay, 1984, p. 159) and that a significant part of the Anti-Federalists struggles were oriented in claiming that the Constitution had been the result of a conspiracy of the wealthy to betray the Revolution by imposing a kind of aristocratic government (Banning, 1978, p. 115). The Founders would not let radical democratic initiatives go further in the government or in defining the framework that would rule the community in the future.