A Summary of: The Politically Incorrect Guide™ to the Constitution
by Kevin R.C. Gutzman
Compiled and Edited by
Dr. Jimmy T. (Gunny) LaBaume
Chapter 3: Selling the Constitution
Understanding the arguments made for ratification of the Constitution is essential to understanding its real meaning.
Even before the convention was over several delegates returned to their states to organize an opposition. Three refused to sign the document. Edmund Burk criticized the document on several accounts: 1) it did not define Congress’s powers well enough; 2) the boundary between state and federal authority was not clear enough; 3) the jurisdiction of the federal courts had not been limited narrowly enough; and 4) there was no Bill of Rights. George Mason refused to sign for similar reasons. He felt that slave importation should be banned immediately and that a congressional super-majority should be required to pass any tariff into law. Without those provisions, he believed, the northern majority would abuse the South.
The omission of a bill of rights was of greater concern. When Mason raised the issue he was rebuffed on the grounds that it wasn’t necessary. The government would only have the powers the Constitution gave it. It did not give congress any power to infringe on any of the traditional English-descended rights. A bill of rights was simply not needed. Mason wasn’t convinced.
Federalists battle Republicans over the Bill of Rights
Those who advocated ratification of the constitution were called “Federalists” while those opposed were called “Republicans.” (But, the Federalists called the Republicans “Anti-Federalists.”)
The central question was whether or not the constitution would be compatible with the states’ rights that the Patriots had fought for.
Pennsylvania’s James Wilson argued for ratification by pointing out a distinction between state and federal government. The people vested their state with the authority that they themselves did not explicitly reserve. But, when it comes to delegating federal powers, authority comes from a positive grant—everything which is not given is reserved. In other words, the only powers the federal government had were those expressly stated in the Constitution. Therefore, it was pointless to guarantee rights that Congress was powerless to violate.
Wilson went on to say that it was impossible for the Constitution to “annihilate” the state governments as it had been claimed. After all, state legislatures were to appoint the senators, the people themselves were to elect the representatives, and the state legislatures were to appoint the electors who were to choose the president.
Massachusetts’ William Cushing said essentially the same thing.
South Carolina’s ratification opponents were afraid that the new Constitution would threaten slavery. But their fellow Carolinian, General Charles Cotesworth Pinckney, assured them that the general government would have no powers except for those expressly granted by the Constitution and that all other rights were reserved to the states.
Virginia, being the largest and most densely populated of the states, was pivotal. Edmund Randolph and George Mason initially lead the Anti-Federalist. However, had the Republicans won in Virginia it would have prevented George Washington from being the first president and Washington was the only chief executive the states would trust. It was assumed that he would set a president that would bind his successors.
It all comes down to Virginia
At the Ratification Convention during the summer of 1788, Virginia’s political elite were split down the middle.
The Republicans argued that federal powers were too ill defined and that the new constitution needed a bill of rights. Of course, the Federalists took the opposite position.
When the Federalists realized that they had not convinced a majority, they suggested certain measures that they would not have otherwise brought up. For example, “Virginia could expressly state that it was approving… with the understanding that the rights of conscience and of the press were reserved from federal interference… (and it) reserve(d) a right to reclaim its delegated authority if the federal government exceeded that which was given it through the Constitution.” These were the terms upon which Virginia accepted the Constitution and they were spelled out in its instrument of ratification.
The “rubes” were persuaded and the Convention ratified by a ten vote margin. Virginia’s instrument of ratification would be elevated into the first article of the Jeffersonian faith.
But what about The Federalist?
Contrary to popular belief, The Federalist did not influence the ratification of the Constitution to any great degree. The arguments in Publius essays were essentially unknown to areas outside the reach of New York newspapers. In fact, it did not even provide the needed boost for New York to ratify.
New York considered the question of whether or not to remain outside the union with Rhode Island and North Carolina. But, if they did, there was the distinct possibility that New York City would secede from the state and ratify on its own. Based on that possibility, the state “held its collective nose and ratified.” Be all that as it may, perhaps the greatest significance of The Federalist was that the monarchist-nationalist authors (Hamilton, Madison and Jay) would play a key role in implementing the Constitution once it was ratified.
Hamilton was an avowed monarchist. Madison clearly wanted to see the Confederation replaced by a national government. Jay was comfortable with both. These “Hamiltonian Federalists” had more in mind than a modest increase in the power of the Confederation.
A reading of The Federalist reveals that the authors were either very confused or they were trying to obfuscate. Sometimes they describe the new government as “federal.” Others it is “national.” In some cases they concede that the states would remain central. In others they read the power of the new government to be very broad.
The question of sovereignty: Never really explained
In The Federalist No. 9, Hamilton writes in his characteristic muddle, “The proposed constitution makes (the states) constituent parts of the national sovereignty. Where did “national sovereignty” come from? The states had been sovereign since independence.
In Federalist 23, he admitted knowing the distinction between a federal and a national government when he wrote, ”the circumstances of our country…demand a… confederate instead of a sole government.”
He concluded in Federalist 28: ”The people…are in a situation, through…their state governments, to take measures for their own defense…(as) independent nations.” He holds out state resistance to federal policy as the “the last ditch” of a free people’s defense against a runaway federal government. However, he cannot resist referring to the federal government as “national.” This calls the reader’s attention back to his earlier statements about sovereignty and again leaves the conclusion muddled. If the federal government possesses national sovereignty, then on what basis can the non-sovereign states ever resist? Hamilton (Publius) contradicts himself.
In Federalist 31, Hamilton says, “The state governments…are invested with complete sovereignty.” In No. 32, he concedes that the states ”retain (the taxing) authority…and that an attempt…(by the) national government to abridge (this authority)…would be …(an) assumption of power unwarranted by…the Constitution.” Then in No. 33, he wrote, It (the Constitution) did not imply that the federal government had any greater powers than those specifically stated. How, then, did he think that Congress and the state legislatures could cooperate in areas where their jurisdiction overlapped—for example, as in taxation?
In Federalist 34 Hamilton cites the Roman Republic as having two separate legislative bodies each possessed the power to annul the acts of the other. He hits upon this solution again in No. 36. Thus, it could be deduced from this that sovereignty did not lie in either the state or the federal government, but in the people. But he failed to grasp this logical implication.
Hamilton’s thinking can be explained by his preference for the British model of government wherein Parliament, not the people, was sovereign. It would seem that he never understood the theoretical change caused by the American Revolution which substituted popular sovereignty (the people) for governmental sovereignty.
Who ratified the Constitution: “The American people” or the sovereign states?
Madison’s contributions to The Federalist are just as perplexing as Hamilton’s. For example: In No. 39 he (Madison) decides that the proposed government is to be neither national nor federal, but some sort of hybrid. However, this is impossible unless the term “sovereignty” means “authority in a given area.”
On the issue of ratification procedure, Madison says, “The constitution is to be (ratified by) the people…not as individuals composing one…nation; but as composing the distinct and independent States…It is to be…(ratified by) the several States, derived from the supreme authority …of the people…The act…will not be a national but a federal act.” He goes on to explain, “Were the people regarded…as…one nation, the will of the majority…would bind the minority…So, each state…is considered as a sovereign body independent of…others and only…bound by its own voluntary act.” This is clear enough up to this point. But…
He goes on to say that Congress is partly national and partly federal because it has one house appointed by the state and another by population. Using the same “logic,” he declares that presidential elections through the appointment of an electoral college are also partly national and partly federal. He also makes several other similarly confusing statements.
Nothing in the Declaration of Independence, Articles of Confederation or the Constitution’s ratification process allowed the American people to form a national government. Before the states could have made themselves into a nation, they would have had to cease to exist at some point in time. They never did that.
“When did an ‘American People’ ever assent to or ratify anything?”
The Essence of Liberty Volume I: Liberty and History chronicles the rise and fall of the noble experiment with constitutionally limited government. It features the ideas and opinions of some of the world’s foremost contemporary constitutional scholars. This is history that you were not taught at the mandatory government propaganda camps otherwise known as “public schools.” You will gain a clear understanding of how America’s decline and decay is really nothing new and how it began almost immediately with the constitution. Available in both paperback and Kindle versions.
You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume II: The Economics of Liberty and The Essence of Liberty Volume III: Liberty: A Universal Political Ethic.