STRUGGLES OVER RATIFYING THE CONSTITUTION, 1788-1789
Politicians, lawyers and judges often pontificate “without fear and without research”3 about the origins and meaning of the First Amendment. Assertions often are made that the meaning of the First Amendment can be found by referring to “the intent of the Framers.” Sounds like an easy task, but it is impossible. First of all, the Framers did not adopt the First Amendment. The Framers were men who gathered in Philadelphia in the summer of 1797 and met in the Pennsylvania State House in secrecy, behind closed window drapes. Their purpose was to create a stronger national government, which they expressed in the draft Constitution. But can the meaning of the First Amendment and the Bill of Rights be found by consulting the intent of the Framers? No. The draft Constitution said nothing at all about the contents of the First Amendment, about freedom of religion, or speech, press, assembly, the right to petition government, or security against illegal searches and seizures, or trial by jury. On September 17, 1787, members of the Constitutional Convention signed the document they had created, to await possible ratification by the states.
Clearly, the proposed Constitution was not a “done deal.” The Antifederalists represented a great many persons who were frightened by a document designed to give great power to the national government. Powerful Antifederalist arguments stated the obvious: the Constitution contained no guarantees that the national government could not take away people’s right to worship as they wished, to speak freely and have access to uncontrolled presses, to assemble to discuss public matters and to complain to government when wronged. Other Antifederalist complaints predicted that the new government designed by the Philadelphia convention could give authorities the power to torture persons until they confessed to crimes they had not committed.4
The Antifederalist campaign, pursued with fervent language in about a quarter of the 125 newspapers then published in the United States, aimed at nothing less than defeating the new Constitution. But the campaign fizzled out after the Federalists offered a Bill of Rights limiting actions by the national government.
However disingenuous or exaggerated their protests, the Antifederalists won the battle for a Bill of Rights but lost what they saw as the war when the Constitution was adopted, taking power away from the states. One explanation for the bitter opposition to the Constitution is that the popular leaders who brought about the Declaration of Independence in 1776 were not the same men who made the Constitution. As legendary historian Merrill Jensen noted, only four signers of the Constitution in 1787 willingly had supported in 1776: Elbridge Gerry of Massachusetts, Roger Sherman of Connecticut, Benjamin Franklin of Pennsylvania, and George Wythe of Virginia.5
To get some sense of the gap between the Revolutionists of 1776 and the Counter-Revolutionists who produced the Constitution of 17887, consider this sour list of comparisons from the Boston Independent Chronicle of September 2, 1790:6
|Vox populi, vox dei||Democracy is a volcano|
|The rights and privlidges of the people||“Checks and Balances.”|
|The natural equality of mankind.||“The well born.”|
|The real people competent to the management of their political affairs||But few characters fit to govern.|
|Our excellent state Constitutions.||The Monster with thirteen heads.|
|The free and United States of America.||The National Government.|
|The freedom of inquiry.||Incendiary publications of disappointed malcontents|
|The virtuous Yeomanry.||Rogues and rascals.|
|The patriots of 1775.||Down with them.|
The worship of the Constitution found throughout the United States in the 21st Century doubtless would have mystified 18th Century Americans. That sanctified document was viewed quite differently when it was published in draft form in the fall of 1787. It was a practical political instrument, favored by many, but opposed by almost as many. For example, Patrick Henry believed in 1788 that a majority of Virginians opposed the Constitution.7 Constitution-worship came later, as legal historian James Willard Hurst wrote, and was brought about in part by the “reverential” 19th Century histories of John Fiske, George Bancroft, and Richard Hildreth.8
3 The 20th –Century historian Charles A. Beard used that dismissive phrase to skewer critics of his work.
4 Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781-1786 (Madison, University of Wisconsin Press), passim.
5 Merrill Jensen, The American Revolution Within America (New York: New York University Press, 1974), p. 169.
6 Quoted in Ibid., p. 171.
7 Jackson Turner Main, op. cit., pp. 285-286
8 James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950), p. 203.