In writing Ratification: The People Debate the Constitution, 1787-1788, Pauline Maier hoped to create, in her words, a “Constitutional thriller.” She invited readers to “forget for the moment much of what they know … and return to another time when there was no Constitution … and watch events occur, step by step, unaware of how they would turn out.” By taking an avowedly narrative approach, Maier hoped to correct misconceptions and move beyond the debates of later generations, which in their restrictive formulations conceal as much as they reveal.[1]
Notwithstanding the accolades and prizes, not many have taken Maier at her word and entered that pivotal time in history, unencumbered by knowledge of later events or attachment to preconceived interpretations. Judging by reviews from all quarters and the continuing mythologies repeated in textbooks, few readers have understood her insights into the ratification debates.
Unwittingly, Maier bears some responsibility for this. An inveterate storyteller, she might have included more than readers can handle. The reviewer for Journal of American History complained about this. The narrative, he writes, is “overly long, repetitious, and filled with too many examples of what Henry Knox called the ‘tedious debates’ in the conventions,” which Maier covered “in suffocating detail to very little purpose.” The result, he concluded, is “a fairly conventional” account that reads “like the official history of the ratification.”[2]
Not so. Embedded within Maier’s narrative is a revolutionary view of the ratification debates that is not in the least conventional. She developed several significant themes, each with significant “purpose.”
1 // Federalist v. Anti-Federalist. Both supporters and critics of the proposed constitution claimed the label “Federalist.” What we now call the “Constitutional Convention” was known at the time as the “Federal Convention” because it proposed changes to the Articles of Confederation. Initially, those delegates to the convention who wanted to create a nation rather than a confederation were considered “Nationalists,” while those favoring only revisions to the Articles of Confederation were “Federalists.” After the Convention, however, supporters of the Constitution proposed at the Federal Convention claimed the name “Federalist” for themselves and tagged their opponents “Anti-Federalist,” implying they were obstructionists. The Constitution’s opponents resisted this, but supporters, who dominated the press, won the war of words and have been called Federalists ever since.
To avoid prejudicial labelling, Maier rejected “Anti-Federalist” in favor of “critics of the Constitution” and its synonyms. “To use the Federalists’ language—to tell the story in their terms—tends to give them the game, or at least to tip the story further in their direction,” she explained.[3] Although college texts sometimes discuss the origins of the nomenclature, they have not followed Maier’s lead and abandoned “Anti-Federalist.” Even favorable reviews of Ratification continued to use the loaded term.
2 // A porous middle. The traditional nomenclature, in addition to tipping the playing field, feeds a deep misunderstanding of the ratification debates. “Federalist” versus “Anti-Federalist” suggests a dichotomous division that conceals, in Maier’s view, a broad “porous middle.” Most supporters of the Constitution admitted it was not perfect, and most critics, while objecting to specific provisions, acknowledged the need to strengthen the federal government. There was more common ground on which to negotiate than dualistic renderings acknowledge. True, hardliners on either side issued polemical declarations, but the debates that led to political outcomes in key states took place on this middle ground.
3 // “Take this or nothing.” Two days before the Federal Convention was to adjourn, Edmund Randolph, a major force throughout its proceedings, moved “that amendments to the plan [the Constitution] might be offered by the State Conventions, which should be submitted to and finally decided on by another general Convention.” George Mason supported this idea. The Constitution, he said, had been written in secret, “without the knowledge or idea of the people.” Mason explained why he could not sign the document: “It was improper to say to the people, ‘take this or nothing.’” In Maier’s rendering, the demand that citizens “take this or nothing,” and the haste in which they were expected to grant their assent, “converted men who had had hoped to ‘perfect’ the Constitution into its opponents.” The meta-debate about the terms of the debate—whether or not the people, through their state ratifying conventions, could offer any changes—is central to understanding all the rest.[4]
4 // The role of the people. Through detailed accounts of town meetings in Connecticut and Massachusetts, Maier revealed the depths of popular engagement, not only about specific provisions within the proposed Constitution, but also about the very meaning of popular sovereignty. “Were the people of the town meetings supposed to debate the Constitution or leave that weighty subject to their delegates?” she asked. Many towns addressed this subject directly. After internal debate, the town of Windham concluded, “as the proposed Constitution was to be determined on by a state Convention, it was not proper for this town to pass any vote on the subject.” Other towns disagreed, instructing their delegates how to vote at the state convention. “The voters of the Ridgefield town meeting clearly understood they were not ‘We the People of the United States,’” Maier reported, “but ‘the people of this meeting’ were part of that larger whole and should make their collective voice be heard.” Of towns that instructed their delegates how to vote, some demanded assent while others demanded rejection unless certain provisions could be changed. At the grassroots level, Americans debated the foundational relationship between a people and their government.[5]
5 // The alleged “Massachusetts Bill of Rights.” After five states voted in favor of ratification, supporters of the Constitution ran into stiff opposition in Massachusetts. According to conventional wisdom, Massachusetts Federalists agreed to provide a Bill of Rights if Anti-Federalists agreed to ratification. At the state convention, “Federalists worked hard to overcome the objections of their opponents, drafting a bill of rights to be proposed for adoption following the Constitution’s ratification,” one college text states.[6] Other texts say that Massachusetts Federalists “assured” or “promised” their opponents they would “enact” or “add” a bill of rights.[7] One text goes a step farther: the compromise in Massachusetts “made the Constitution both stronger and more democratic.”[8]
Maier’s narrative discredits these orthodox accounts. The Constitution’s supporters were in no position to “assure” or “promise” that Congress would “enact” or “add” a bill of rights. The official “Form of Ratification” by the Massachusetts Convention did call for the state’s representatives in the new Congress to introduce and push for nine amendments, but that was all. Any notion that these would pass Congress and be ratified by three-quarters of the states was purely conjectural. It was the weakest possible nod to discontent, although it did sway the few votes needed for ratification.
Further, the nine amendments the Massachusetts convention drafted were in no way a “bill of rights.” They bore little resemblance either to state declarations of rights in effect at that time or to what would become our national Bill of Rights. They addressed a wide variety of topics: federal court jurisdiction over interstate civil disputes (a $3,000 minimum for the Supreme Court and $1,500 for lower federal courts); a proscription against federal office holders receiving titles of nobility “from any King, Prince, or Foreign State;” a stipulation that “Congress erect no Company of Merchants with exclusive advantages of Commerce;” and so on. By contrast, Maier notes that Samuel Adams did introduce what he and others considered a bill of rights—a long amendment that foreshadowed key provisions of the eventual First, Second, and Fourth Amendments to the United States Constitution—but Adams’s bill of rights was resoundingly rejected.[9]
Finally, Massachusetts’ proposed amendments did not “strengthen” the Constitution because they went nowhere. They had no impact whatsoever on the First Federal Congress when it considered amendments proposed by James Madison and submitted twelve amendments to the states.
6 // Amendments proposed by the other states. Misrepresentations of the amendments offered by subsequent state conventions echo this error. One college text states, “As a condition for ratification, several states had insisted that the first Congress consider a number of amendments. These amendments became the Bill of Rights.” Virginia and New York ratified “on the assumption that a bill of rights would be added in the form of amendments to the Constitution,” says another. These are false statements. After Massachusetts, all state ratifying conventions wrestled with the question of amendments – not only what they should say, but also how they would be treated. The Constitution’s critics wanted amendments to be addressed before ratification, while supporters hoped to put off any changes until afterwards. Only in North Carolina did the critics prevail. At the rest of the conventions, including Virginia and New York, ratification was not conditional on amendments. To get this wrong, as the conventional narrative does, is to invert the politics of ratification, an error that Maier definitively corrected.[10]
7 // Bill of Rights and a second convention. Conflating state-proposed amendments with a “bill of rights” wreaks confusion everywhere. Maier took great pains to distinguish between the two, and unless we do so as well, we will never understand the history of ratification or the derivation of what we now call the Bill of Rights. Only two states, Virginia and North Carolina, specifically called for a “bill of rights,” and both of these advocated numerous additional amendments that bore no relation to what people at the time considered a bill of rights or to the first ten amendments to the Constitution. New York, in addition to proposing a long list of amendments that would alter the structure of the Constitution, included a separate list of rights in its ratifying statement, but it presented these in a manner we might call today a “signing statement.” Delegates signed onto the document believing “that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution.” New York did not require that its list of rights be appended to the Constitution as amendments.[11]
But New York did write a circular letter to the states calling for a second convention. Any account of the politics that led to the first ten amendments must emphasize, as Maier’s did, the controversy over a second national convention, where changes or additions to the Constitution could be considered. While this was the hope of critics, the very mention of a second convention made supporters of the Constitution cringe. Difficult compromises, so tortuously conceived and executed by delegates to the Federal Convention, would be revisited. Everything would be up for grabs and key provisions jeopardized.
8 // The fight over taxes. Maier focused on one proposed amendment that both James Madison and George Washington said must be resisted at all costs: requiring Congress to requisition the states before imposing any direct taxes. This measure, they believed, would negate the most important achievement of the Constitution, namely, to provide Congress with a steady and reliable source of revenue. Yet this was also the most popular amendment proposed by the states, favored by every ratifying convention that recommended changes to the Constitution. In the event of a second convention, the tax modification would likely pass.[12]
9 // Madison and the “grab bag” of amendments. Acting strategically, Madison quieted the push for a second convention by presenting his own set of amendments to the First Federal Congress. According to one college text, Madison made the “grab bag” of amendments proposed by the states more “coherent.”[13] But mere coherence was not his purpose. “He did not want to change the structure of the government or to bring into question any of its critical powers,” Maier explained. “He proposed only ‘to incorporate those provisions for the security of rights.’”[14] In formulating those rights-protecting amendments, Madison took special care not to weaken the federal government. For example: Several states had proposed an amendment that reserved for the people powers that were not “expressly delegated” to Congress—but Madison cleverly removed the restrictive word “expressly,” leaving room for what would later be called implied powers.
10 // A unified “Bill of Rights”? Although the term “bill of rights” was in common use at the time, people did not refer to the twelve amendments Congress passed on to the states as the “Bill of Rights,” a unified body. The press did not call them that, nor did state legislatures that acted on them. When Madison presented his amendments to the First Federal Congress, he interwove them into the body of the Constitution, clause by clause. Only after a vigorous debate did Congress decide to place them at the end—not because they belonged together but so the original document could remain intact.
At her talks, Maier liked to read the official communication that Secretary of State Thomas Jefferson unceremoniously sent to the state governors on March 1, 1792, after ten of the twelve amendments had been ratified by a sufficient number of states:
“I have the honor to send you herein enclosed, two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fisherman employed therein; also of an Act to establish the post office and post roads within the United States; also the ratification by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and being with sentiments of the most perfect respect, your Excellency’s &c.”
Jefferson “could have saved a lot of words by calling those amendments a bill of rights,” Maier commented, “but he did not.” She also noted that in the mid-twentieth century, when called upon to display the “official” Bill of Rights, the National Archives could find only an official copy of the first twelve amendments sent to the states for ratification. No contemporaneous copy of a “Bill of Rights” existed.[15]
With these observations Maier closed her book—but not her research. When, how, and why did the First Ten Amendments become the Bill of Rights, the collective body we treat them as today? This was the inquiry she was pursuing when she died in 2013. We would do well to continue Maier’s search.[16]
[1] Pauline Maier, “The Strange History of the Bill of Rights,” Phillip A. Hart Lecture, April 10, 2013, at Georgetown Law School: http://apps.law.georgetown.edu/webcasts/eventDetail.cfm?eventID=2001 ; Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), xvi.
[2] Douglas Bradburn, “Review of Ratification: The People Debate the Constitution, 1787-1788,” Journal of American History, 98 (Mar. 2012), 1150-51. Even positive reviews missed some of Maier’s central messages. See note 16 for examples.
[3] Maier, Ratification, xiv-xv.
[4] James Madison, Notes of Debates in the Federal Convention of 1787, September 15; Maier, Ratification, 45-49, 60, 66, 67.
[5] Ibid., 134-36.
[6] Nancy Hewitt and Steven F. Lawson, Exploring American History: A Brief Survey with Sources (Boston: Bedford/St. Martin’s, 2013), 206.
[7] James Henretta, Rebecca Edwards, and Robert Self, America: A Concise History, 5th ed. (Boston: Bedford/St. Martin’s, 2012), 191; Michael Schaller, Robert D. Schulzinger, John Bezie-Selfa, Janette Thomas Greenwood, Andrew Kirk, Sarah J. Purcell, and Aaron Sheehan-Dean, American Horizons: U. S. History in a Global Context, concise ed., (Oxford: Oxford University Press, 2013), 282; Kevin M. Schultz, HIST-3, vol. 1, (Boston: Cengage Learning, 2014), 129; Jacqueline Jones, Peter H. Wood, Thomas Borstelmann, Elaine Tyler May, and Vicki L. Ruiz, Created Equal: A History of the United States, vol. 1, 3rd ed., (Harlow, UK: Pearson Longman, 2009), 260.
[8] James Oakes, Michael McGerr, Jan Ellen Lewis, Nick Cullather, and Jeanne Boydston, Of the People: A History of the United States, vol. 1, concise ed., (Oxford: Oxford University Press, 2011), 211.
[9] Maier, Ratification, 197, 204-5; Merrill Jensen, et al, ed., Documentary History of the Ratification of the Constitution (Madison, WI: Wisconsin Historical Society Press, 1976—), 6:1452-54, 1469-71, 1490. Other Massachusetts amendments dealt with the ratio of representation in Congress, a restriction of federal powers with respect to congressional elections, and restrictions on the time and manner of collecting direct taxes. One was comparable to the eventual Tenth Amendment, one required a grand jury indictment in cases that might lead to “infamous punishment or loss of life,” and another called for jury trials upon request for interstate civil cases. Here is the full text of Samuel Adams’s failed bill of rights: “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms, or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them, or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances, or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.”
[10] James Oakes, Michael McGerr, Jan Ellen Lewis, Nick Cullather, and Jeanne Boydston, Of the People: A History of the United States, vol. 1, concise ed., (Oxford: Oxford University Press, 2011), 211; Alan Brinkley, The Unfinished Nation: A Concise History of the American People, vol. 1, 7th ed., (McGraw-Hill, 2014), 139.
[11] Maier, Ratification, 397.
[12] Ibid., 442.
[13] John Mack Faragher, Mari Jo Buhle, Daniel Czitrom, Susan H. Armitage, Out of Many: A History of the American People, Seventh Edition (Pearson/Prentice Hall, 2012), 199.
[14] Maier, Ratification, 447, 450. Madison understood that the First Federal Congress, dominated by supporters of the Constitution, would not favor significant changes to the Constitution, whereas a second convention would. When Thomas Tudor Tucker, a representative from South Carolina, introduced the popular tax limitation, the measure failed resoundingly, nine in favor and thirty-nine opposed. Samuel Livermore of New Hampshire complained bitterly. Tucker’s amendment was “of more importance” than all the others, he declared, and the people “would not value” Madison’s amendments “more than a pinch of snuff” once the taxation amendment was rejected. (Annals of Congress, 1:803-04.)
[15] Maier, Ratification, 460, 467, 556.
[16] Although Maier had not yet published her research, she did give some talks on the matter, including “The Strange History of the Bill of Rights” at Georgetown Law School, accessible on the Internet as cited in note 1. The talk begins fifteen minutes into the tape. For comments on Pauline Maier’s other books, see my article on History News Network: http://historynewsnetwork.org/article/154174. For a personal note, see my comments on the Omohundro Institute’s tribute to Pauline in Uncommon Sense: https://oieahc.wm.edu/ucs/memorium_maier_rapheal.html.
Here are some examples of reviewers missing the boat:
Michael McConnell, in the Wall Street Journal, complimented Maier for “a gripping and eye-opening read,” but he misread Maier’s treatment of amendments and played havoc with the historical record: “Not only did they [the Constitution’s critics] obtain amendments, which we call the Bill of Rights, but the critics also won a host of other assurances: states would retain their autonomy; the federal government would be allowed to impose few taxes other than tariffs; and the nation would rely mostly on state militias rather than a large standing army. All of these concessions addressed Anti-Federalist demands or concerns.” Maier clearly demonstrated that no such “concessions” were made. Amendments addressing these matters were offered at state ratifying conventions, but they bore no fruit; they were bypassed by Madison’s preemptive amendments that critics labeled “milk-and-water,” no more than “a pinch of snuff.” According to the United States Constitution, states are not autonomous, Congress can pass any taxes it wishes, and Congress can raise a standing army of any size at any time it pleases, during peace or war. (Michael W. McConnell, “We the People,” Wall Street Journal, October 23, 2010.
http://online.wsj.com/news/articles/SB10001424052702304410504575560882312246198)
Michael J. Klarman in the Harvard Law Review, praised Ratification as “one of the best books ever written about the American Founding.” Although he incorporated some of Maier’s themes into his review, he misread others. “Maier’s account reminds us of how critical the Federalists’ concession of a bill of rights was to the success of ratification,” Klarman stated, whereas Maier observed that so-called Federalists did not “concede” anything; because no amendments preceded ratification, the deal remained “take this or nothing.” Like so many others, Klarman reported that in Massachusetts “Federalists decided to compromise by offering subsequent amendments, including a bill of rights, to be recommended along with ratification,” although Maier revealed that the nine Massachusetts amendments were in no way a bill of rights, whether in contemporaneous terms or in ours. To the befuddlement of Maier, Klarman determined that the “hero” of her tale was James Madison, while Patrick Henry was its villain. “I didn’t see it that way,” Maier wrote in an email. “The reviewer’s preferences made Madison a hero and Henry a villain, not the book. Madison was undoubtedly dedicated, smart, and very knowledgeable, but I rather liked Henry. He did drive everyone crazy, but he wasn’t dumb. A bad lawyer maybe, as TJ said, but in the middle of those tortuous to read but great to hear orations he’d throw in these little kicks. His point that only a madman signs a contract assuming he can change objectionable provisions later – so why sign a Constitution with that assumption – was not dumb. So much of the scholarship on the Constitution is so Federalist-biased (the Constitution is great so they were right) that it is very hard to get through a more balanced view that’s true to the conditions of the time and not biased by retrospective wisdom.” This last sentence says it all: Maier insisted, against all odds, on reading history in-the-moment, not hampered by hindsight. (Michael J. Klarman, “The Founding Revisited,” Harvard Law Review, 125 (2011): 544-78.)
Of five reviewers who participated in the William and Mary Quarterly symposium on Ratification, only one focused on what Maier was actually doing with her book. Others discussed either what Maier allegedly failed to do (no Charles Beard or any talk of “class,” insufficient attention to “Anti-Federalist” complaints, not enough on the “outside” debates in newspapers, no talk of “popular constitutionalism”) or the implications of her narrative for early Supreme Court decisions and the current debate over originalism. The reason Beard made no appearance in her book, Maier responded wryly, was that his name did not appear in contemporaneous sources. Although the WMQ symposium may have been fruitful in other respects, it did not illuminate Maier’s careful treatment of the process and structure of the ratification debates. (William and Mary Quarterly, 3rd series, 69 (Apr. 2012), 361-403. The one comment containing a careful exposition was R. B. Bernstein, “Ratification’s Pathfinder, with Some Hints for Future Explorations.”)
5 Comments
Thank you, Ray. This is a great overview of Pauline Maier’s work in this important period of our nation’s history. She was a great lady, engaging in every way and knew how to tell a story. To my mind, she was one of the trinity of contemporary RevWar “greats,” alongside Bailyn and Woods. I remember hearing of her death from Jayne Gordon and was greatly struck at the loss, she is sorely missed.
A question. Gaillard Hunt (ed), The Writings of James Madison: 1787-1790. Vol. V, pp. 389-390 (G.P. Putnam’s Sons, New York, 1904), quotes James Madison’s manuscript notes for his June 8, 1789, address to the House of Representatives, referring time and again to the Bill of Rights. Was Hunt mistaken?
No, D.T., Hunt was not mistaken. Madison viewed his amendments as a bill of rights, but these included several amendments not passed by Congress or ratified by the states. Congress turned down two amendments: what he believed to be his most sweeping amendment, a repetition of the principles stated in the preamble of the Declaration of Independence, and also a clear declaration of the separation of powers. Not enough states ratified two others: a limit on the number of people whom a congressman could represent and a stipulation that congressmen could not raise their own salaries. (Any raise could not take effect until after the next election.)
More significantly, Maier pointed out that people at the time, although they had been arguing about the need for a bill of rights, did not refer to this particular bundle of amendments as “the Bill of Rights.” She notes, for instance (Ratification, p. 556-7, n. 90), that Bernard Schwartz, in “The Bill of Rights: A Documentary History,” devotes 31 pages to some 80 newspaper accounts, journals of official proceedings, and letters pertaining to the ratification of the first ten amendments from 1789 to 1792, yet not one of these uses the term “Bill of Rights.” By contrast, in Schwartz’s two-page introduction summarizing these documents, he uses the term four times.
Maier observed that in the Early Republic, when people touted their “rights,” they commonly referred to the preamble to the Declaration of Independence, not to the first ten amendments. Consider this: Why didn’t Madison make a big deal of the First Amendment when protesting the Sedition Act?
The Bill of Rights was, literally, an afterthought to the Constitution—but now the tail wags the dog. When people boast of their “Constitutional rights,” it’s almost always the Bill of Rights. When, and why, did the First Ten Amendments assume such primacy? (We might start by determining when the first ten amendments became the First Ten Amendments.) The Reconstruction amendments played a role, but what about the three-quarters of century before then? I have not done primary research on this, but Maier was in the process of doing so. Is there an aspiring historian looking for a field of great consequence but not yet deeply explored?
As Ray Raphael mentions in his comment, two of Madison’s Bill of Rights amendments that were passed by Congress and sent to the states for approval were not ratified. But it’s interesting to note that one of Madison’s proposals, regarding raising congressional salaries, was eventually ratified (see the 27th amendment). An undergraduate at the University of Texas wrote a paper noting that since there was no time limit on ratifying the Bill of Rights amendments, that this proposed amendment still stood the chance to be ratified by the states. He received a “C” on his paper (not realistic said his prof), but the student organized an effort anyway by writing state legislatures asking for ratification, and his efforts paid off in 1992).
Technically, Madison’s amendment regarding congressional apportionment is still alive, too, though if ratified it would dramatically increase the members elected to the U.S. House of Representatives. (Now there’s a thought!). But who knows, maybe all 12 of the Bill of Rights approved by Congress will eventually be adopted. As it stands, can we now say there are eleven amendments in the Bill of Rights?
Great overview of Pauline Maier’s themes in “Ratification”, Ray.
I’m sorry I never got to meet her. I began to know of her in the late ’90s through Thomas Fleming’s PBS series “Liberty!”. She had a great insight and a funny sense of humor in each episode. Her “American Scripture” book is my go-to source on the Declaration of Independence. Now I’ll pick up her “Ratification” book on the Constitution. I agree with Gary Shattuck’s feelings on her loss.