Among the shortcomings of the Articles of Confederation was the near impossibility of amending them to meet pressing needs regarding taxation and commerce. In 1787-1788, the lower threshold to amend the Constitution per Article V overcame Anti-Federalist reluctance to form a new Union.
From the time the federal convention sent the draft Constitution to the Confederation Congress and states, many Anti-Federalists demanded a second convention, preferably before federal elections and the establishment of a new government.
Not only the Anti-Federalists, but few Federalists were entirely satisfied with the Constitution as written. The difference was that Federalists were satisfied that Article V was there to correct the Constitution’s shortcomings. Among the Anti-Federalists were “fence-sitters,” those who would change their minds if they felt assured of a few amendments that better secured certain rights. Flip the votes of fence-sitters and ratification was certain.
Despite ratification by the ninth state, New Hampshire, on June 21st 1788, the future of the new government still depended on the decisions of Virginia, New York, and Pennsylvania. Yes, a new government could form without them, but what were the chances of national survival if the remaining states VA, NY, PA, NC, RI did not join and left a geographically dismembered Union in their wake?1
Pennsylvania. In a shady process that only stoked resentment, Federalists rammed ratification through on December 12th 1787.2 On July 3rd 1788, several leading men sought to “un-ratify” PA ratification unless certain pre-amendments found their way into the Constitution.
Disgust with the heavy-handed tactics of Pennsylvania Federalists back in December led Cumberland county officials to send out a circular letter to various societies, individuals, and other counties that opposed unqualified, unamended ratification. The letter explained that the new government would start with all its “foreseen and consequent dangers” still in place. Either the states act together to get amendments or there was no telling what turn American liberty will take at the discretion of Congress. Townships were asked to send representatives to county meetings that would send delegates to a general conference of the counties in Harrisburg on September 3rd to devise amendments.
Fortunately, passions cooled by September, and the Harrisburg meeting recommended considerable amendments while at the same time it accepted the “general system of government framed by the late federal convention,” and “in full confidence that the same will be revised without delay.” Specifically, delegates asked for a speedy revision through an Article V general convention. They petitioned the Pennsylvania legislature to urge the first congress at the first opportunity to call a “general convention of (delegates) from the several states on the Union.”
In what began as something of an uprising against ratification ended in willingness to implement the new government and work within the new order. Pennsylvania would remain in the Union and press for amendments via Article V in the first congress.
Virginia. The Federalists’ strategy of recommending amendments through Article V to flip the fence-sitters originated in Massachusetts, which ratified on February 6th 1788. In June, New Hampshire modeled nine of its amendments on those of Massachusetts. Virginia Federalists likewise employed this strategy in a victory over the Anti-Federalist contingent dominated by the incomparable Patrick Henry. Thanks to Federalist’ promises to press for Article V amendments in the first congress, Virginia ratified the Constitution by a surprising 57 – 47 margin on June 25th 1788.
After ratification, the convention formed two committees. The first committee, composed entirely of Federalists, drafted a form of ratification. Imperfections in the Constitution should, it read, “be examined in the mode prescribed therein,” rather than endanger the Union by delaying elections with the hope of getting amendments first. The second committee, while dominated by Federalists, reported a slate of amendments which mirrored the Virginia Bill of Rights. The convention overwhelmingly passed both reports.
New York. Federal and Anti-Federal heavy hitters dominated the wild month-long ratification convention in New York. Alexander Hamilton, Melancton Smith, Robert Yates, and John Lansing among others were hardly wallflowers.3 Had ten states not already ratified, unqualified ratification was doubtful. In a twist on the other states request for post-ratification amendments, New York delegates considered post-ratification amendments, which, if not incorporated into the Constitution, New York reserved the right to secede from the Union!
But, the existing Confederation Congress might not accept a qualified ratification, which meant disunion and independence. Reluctantly, and only out of a sense of dread at their Hobson’s choice did Melancton Smith lead the way for Anti-Federals to cease their opposition to unqualified ratification.
As in other states, Article V figured bigly in the New York form of ratification and uneasiness with the Constitution as written. As a consequence, New York issued a circular letter to their sister states at the close of the convention on July 26th 1788. It called for an Article V general convention in the “full confidence” their suggested amendments would receive an “early and mature consideration.” The convention also asked its state reps and future congressmen and senators in the upcoming new congress in 1789 to exert all their influence and use “all reasonable means” to secure ratification of its 32 recommended amendments.
New York’s circular letter admitted that circumstances had boxed the state into a corner. Under duress, New York had to decide Union or disunion. It emphasized that New York was not alone, and that only an Article V general convention could “allay their apprehensions and discontents.” Article V action must be one of Congress’ first tasks.
The people of the United States exercised their judgement and sent men of local renown to the several ratifying conventions. Some had experience in congress, state legislatures and the revolution going back to the Continental Congress. But most were local citizens with names unrecognized today. They refused to be told that the issues of the day were beyond their competence. They put their minds to complicated issues, tried to reconcile the ideals of the Revolution with the needs of the nation, and considered the impact of their decisions not just on their own lives but for the future.
“We the People” of 1787 and 1788 inaugurated a dialogue between power and liberty that continues to remind modern patriots of the principles of 1776. Their example was the greatest gift possible to posterity; they did the heavy lifting. In comparison, our load is light, but we must use the gift of Article V to save their posterity from tyranny.
1. North Carolina and Rhode Island ratified on November 21st 1789, and May 29th 1790 respectively.
3. As delegate to the Federal Convention, Robert Yates left in disgust in early July 1787. After New York ratification he declared, “it was now his and every man’s duty” to support the Constitution.
Reference: Maier, P. (2010). Ratification – The People Debate the Constitution. New York: Simon and Schuster, Inc.