Ratification and the Bill of Rights

The Ratification Debate

The process of ratifying the proposed United States Constitution led to prolonged debate between Federalists and Anti-Federalists.

The Process of Ratification

On September 17, 1787, the the delegates at the Philadelphia Convention finalized the new United States Constitution. The old Congress maintained the powers to expedite or block its ratification. Benjamin Franklin gave a speech shortly after the Constitution had been completed, urging unanimity among all states. However, the Convention had decided that only nine states—two-thirds of the total number of states—would need to ratify the Constitution in order to inaugurate the new government. More populous states, such as Virginia, New York, and Massachusetts, would be critical to this process.

On September 28, 1787, after some debate, Congress unanimously decided to submit the Constitution to the states for action. The need for only nine states was a controversial decision at the time, as the Articles of Confederation could only be amended through a unanimous vote of all states. The fight for ratification was arduous, largely because special conventions were required in lieu of hearings within the state legislatures for ratification. Many state governments were also interested in retaining their powers and were resistant to ratifying a new, stronger, centralized government.

Federalists and Anti-Federalists

Two parties soon developed: Federalists in support of the Constitution and Anti-Federalists opposed. The Constitution was debated, criticized, and expounded clause-by-clause.

Alexander Hamilton, James Madison, and John Jay wrote a series of essays popularly referred to as The Federalist Papers, which supported ratification and attacked the weaknesses of the Articles of Confederation. The men acknowledged that the Constitution was not perfect, but argued it was far superior to any other proposal made. The essays explored the proposed Constitution, defended its provisions, and outlined the ways in which its check and balances would prevent abuses of power. The Federalists defended the weakest points of the Constitution (such as its current lack of a bill of individual rights) by suggesting that current protections were sufficient and that Congress could always propose amendments later.

However, Anti-Federalists such as Patrick Henry attacked the Constitution, suggesting it would lead to a dangerously powerful national government. They cited the lack of a bill of rights as a dangerous omission. Many were concerned that the strong national government was a threat to individual rights and that the President would ultimately become like a king. They also objected to the federal court system proposed in the Constitution.

State-by-State Ratification

Each state was to hold a convention to debate, and ratify or reject, the Constitution. The Constitution was proposed in September 1787, and by year's end states that were in favor (including Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut) had quickly ratified it. However, some vitally important states did not ratify within the year; these included Massachusetts, New York, and Virginia. Massachusetts finally ratified it by a close margin of 187 to 168. Maryland and South Carolina also ratified, and then New Hampshire provided the all-important ninth ratification.

The United States was now technically under the jurisdiction of the new Constitution, but the economically dominant state of New York and the populous state of Virginia, among others, had still not ratified it. In New York, fully two-thirds of the convention delegates were initially opposed to the Constitution. Hamilton galvanized the Federalists' campaign, and on July 26, 1788, New York ratified by a close margin with the recommendation that a bill of rights be added. The Federalists succeeded owing largely to Hamilton's efforts to reach a number of key compromises with moderate Anti-Federalists.

Organizing the New Government

The process of organizing the government began soon after Virginia and New York's ratification. The Continental Congress–which still functioned at irregular intervals–passed a resolution on September 13, 1788, to promulgate the new Constitution and set New York City as the seat of the new government. It set January 7, 1789, as the day for choosing presidential electors; February 4 for the meeting of electors to select a President; and March 4 for the opening session of the new Congress and the beginning of the first presidential term. Thus, March 4, 1789 became Inauguration Day.

George Washington was elected the Constitution's President by a unanimous vote of presidential electors chosen by each state's legislature. These included Virginia's elector, the Anti-Federalist Patrick Henry. The newly elected Congress was a victory for Federalists, as the Senate included 20 Federalists and two Anti-Federalists, and the House would seat 48 Federalists and just 11 Anti-Federalists.

After the Constitution was ratified, most delegates of the 1st United States Congress found themselves in agreement that a bill of individual rights was a necessary addition to the founding documents of the new nation. The Bill of Rights was then created under the new Constitution, leading to North Carolina and finally Rhode Island consenting to ratify. By May 1790, all 13 states had ratified.

Separating Church and State

The Revolution's emphasis on liberty led to provisions for the separation of church from government (state) in the United States Constitution.

Separation of Church and State

The modern concept of a wholly secular government is sometimes attributed to English philosopher John Locke. However, the phrase "separation of church and state" in this context is generally traced to a January 1, 1802, letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut and published in a Massachusetts newspaper. Echoing the language of the founder of the first Baptist church in America, Roger Williams—who had written in 1644 of a "hedge or wall of separation between the garden of the church and the wilderness of the world"—Jefferson wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."

Early History

Many early immigrant groups traveled to America to worship freely, particularly after the English Civil War and religious conflict in France and Germany. These immigrants included nonconformists, such as the Puritans, as well as Catholics. Despite a common background, the groups' views on religious tolerance varied. While some prominent individuals, such as Roger Williams who founded Rhode Island, and William Penn who founded the Province of Pennsylvania, ensured protection of religious minorities within their colonies, colonies such as Plymouth and Massachusetts Bay had established churches. The Dutch colony of New Netherland established the Dutch Reformed Church and outlawed all other worship, though enforcement was uncommon. Religious conformity was desired partly for financial reasons, as the established church was responsible for poverty relief, putting dissenting churches at a significant disadvantage.

Colonial Support for Separation

The Flushing Remonstrance was a petition for religious freedom circulated in the colonies in 1657, and is considered a precursor to the Constitution's provision on the separation of church and state. The document was signed December 27, 1657 by a group of English citizens in America who were offended by persecution of Quakers and the religious policies of Governor of New Netherland Peter Stuyvesant. Stuyvesant had formally banned all religions other than that of the Dutch Reformed Church from being practiced in the colony, in accordance with the laws of the Dutch Republic. The signers indicated their "desire therefore in this case not to judge lest we be judged, neither to condemn least we be condemned, but rather let every man stand or fall to his own Master."

Kenneth T. Jackson, president of the New York Historical Society and professor of history at Columbia University, described the Flushing Remonstrance as "the first thing that we have in writing in the United States where a group of citizens attests on paper and over their signature the right of the people to follow their own conscience with regard to God—and the inability of government, or the illegality of government, to interfere with that. "

Given the wide diversity of opinions on Christian theological matters in the newly independent United States, the Constitutional Convention believed government-sanctioned religion would disrupt, rather than bind, the newly formed union. Some opposed support of any established church at the state level; for instance, Thomas Jefferson's influential Statute for Religious Freedom was enacted in 1786 to ensure religious freedom in Virginia.

Establishment Clause

The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution. It was created mainly as a consensus among all the religious groups in America in 1787, to prevent one religion from having too much influence. It stated: "Congress shall make no law respecting an establishment of religion." Together with the Free Exercise Clause ("... or prohibiting the free exercise thereof"), these two clauses comprise the "religion clauses" of the First Amendment, which is part of a group of the 10 initial constitutional amendments known as the Bill of Rights.

The establishment clause has generally been interpreted to prohibit: 1) Congress' establishment of a national religion, and 2) US governmental preference of one religion over another.

Origin of the Clause

After the new Constitution was written during the Philadelphia Convention of 1787, there was a great deal of tension and uncertainty over whether the states would ratify it. To ensure ratification by all states, supporters of the Constitution (Federalists) agreed to add a group of amendments that would serve as the Bill of Rights. Many against the Constitution ( Anti-Federalists ) refused to ratify unless such individual rights were protected. When the First Federal Congress met in 1789, James Madison implemented the idea by introducing 17 amendments. By December 1791, 10 were ratified by the necessary three-fourths of the states, and these became part of the US Constitution, and thereinafter known as the Bill of Rights.

The establishment clause arose as an important issue to address during Madison's efforts to ratify the Constitution. Virginia had disestablished the gentry-supported Church of England during and after the American Revolution, leaving the Baptists in a position of political influence. Colonel Thomas Barber, an opponent of the Constitution in Madison's home state of Virginia, began a campaign for election to the state's ratifying convention. He garnered support among the local Baptists by warning them that the Constitution had no safeguard against creating a new national church. To head off Barber's challenge, Madison met with influential Baptist preacher John Leland and promised that, in exchange for Leland's support of ratification, he would sponsor several amendments. These were ultimately combined into the First Amendment.

Federalists

Federalists supported ratification of the new United States Constitution and published The Federalist Papers to encourage support from the states.

Federalists

During the American Revolutionary War and in its immediate aftermath, the term " federal " was applied to any person who supported the colonial union and the government formed under the Articles of Confederation. After the war, a new political group felt the national government under the Articles was too weak, and sought to replace them with a new, stronger Constitution. This group appropriated the name Federalist. As the Federalists moved to amend the Articles and create a new Constitution, they dubbed their opposition Anti-Federalists.

After the Philadelphia Convention, in which the new Constitution was written, the Federalists actively campaigned for support from the states in ratifying the proposed Constitution. The fight for ratification was arduous, as many state governments were interested in retaining their powers and resisted establishing a new, stronger, centralized government.

Federalist Papers

Alexander Hamilton, James Madison, and John Jay authored a series of essays commonly called The Federalist Papers. These supported ratification and attacked the weaknesses of the Articles of Confederation. The authors not only wanted to influence states' votes in ratifying the Constitution, they also wanted to shape future interpretations of it.

The Federal Convention sent the proposed Constitution to the Confederation Congress, which, at the end of September 1787, submitted it to the states for ratification. The Constitution immediately became the target of many articles and public letters written by its opponents. Hamilton decided to launch a measured and extensive defense and explanation of the proposed Constitution as a response to the Anti-Federalists, specifically addressing the people of New York. In "Federalist No. 1" he wrote that the series would "endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention." Hamilton recruited Madison and Jay as collaborators for the project.

Federalist No. 10

There are many highlights among the essays of The Federalist Papers. "Federalist No. 10" is generally regarded as the most important of the 85 articles presented. In this paper, James Madison discussed the means of preventing rule by majority faction (a topic of great concern for Anti-Federalists) and advocated for a large, commercial republic. He saw direct democracy as a danger to individual rights and advocated a representative democracy to protect what he viewed as individual liberty from majority rule, or from the effects of such inequality within society.

A republic, Madison wrote, differs from a democracy because its government is placed in the hands of delegates. It resultantly can be extended over a larger area, with the notion that in a large republic there will be more "fit characters" to choose from for each delegate. Madison theorized that each representative's being chosen from a larger constituency should make manipulation of the system less effective. For instance, in a large republic, a corrupt delegate would need to bribe many more people to win an election as compared with the situation within a small republic. In a republic, the delegates also filter and refine the people's many demands, preventing frivolous claims from impeding on the government's business, as they might in a purely democratic government.

Federalist No. 51

Also influential within The Federalist Papers was Madison's "Federalist No. 51," which addressed the means by which appropriate checks and balances can be created in government, and advocated for a separation of powers within the national government. One of its most important ideas is the often-quoted phrase, "Ambition must be made to counteract ambition." The purpose of No. 51 was, according to Madison, to inform readers of the safeguards the convention created to maintain the separate branches of government and protect the rights of the people and the country.

In a republican form of government, Madison asserted, the legislative branch is strongest, and therefore must be sub-divided into different branches, which must be connected with each other as little as possible and be rendered by different modes of election. Governmental power over people was further divided between the federal government and state governments, as well as through branches (legislative, executive, and judicial) within the federal government. Because of this division of power, Madison wrote, a "double security arises to the rights of the people. The governments will control each other, at the same time that each will be controlled by itself."

Other Papers

Another influential paper was "Federalist No. 14," in which Madison took the measure of the United States, declared it appropriate for an extended republic, and concluded with a memorable defense of the constitutional and political creativity of the Federal Convention. Also, in "Federalist No. 39," Madison presented the clearest exposition of what had come to be called "federalism."

Publication

The Federalist Papers appeared in three New York newspapers: the Independent Journal, New-York Packet, and Daily Advertiser, from October 27, 1787. Hamilton also encouraged reprinting of the essays in newspapers outside of New York state, and they were subsequently published in several other states where the ratification debate was taking place. However, such publications were irregular, and in other parts of the country they were often overshadowed by local writers.

The high demand for the essays led to their publication in a more permanent form. On January 1, 1788, the New York publishing firm J. & A. McLean announced it would publish the first 36 essays in a bound volume. This was released that March 2 and titled The Federalist. New essays continued to appear in the newspapers; "Federalist No. 77" was the last number to appear first in that form, on April 2. A second bound volume containing the last 49 essays was released on May 28. The remaining eight papers were later also published in the aforementioned newspapers.

Influence on the Ratification Debates

The Federalist Papers were written to support ratification of the Constitution, specifically in New York. Whether the authors succeeded in this mission is debatable. Separate ratification proceedings took place in each state, and the essays were not reliably reprinted outside of New York. Additionally, by the time the series was well underway, a number of important states had already ratified the Constitution. While The Federalist Papers certainly had some effect on its passage, other forces were also influential. Specifically, the personal influence of well-known Federalists such as Hamilton and Jay was an important factor during ratification conventions.

The Anti-Federalists

Anti-Federalists were those opposed to ratification of the US Constitution following the Revolutionary War.

History of the Anti-Federalist Movement

During the American Revolutionary War and its immediate aftermath, the term " federal " was applied to anyone who supported the colonial union and the government formed under the Articles of Confederation. After the war, a political group that felt that the national government under the Articles was too weak took on the name Federalist for themselves.

As the Federalists moved to amend the Articles, eventually leading to the Philadelphia Convention and drafting of a new Constitution, they dubbed their opposition Anti-Federalists. This term implied both opposition to Congress and unpatriotic motives. These so-called Anti-Federalists rejected the term, arguing that they were the true federalists. However, the Federalists prevailed and Anti-Federalist remained the term of choice for all opposed to amending the Articles of Confederation.

Anti-Federalist Arguments

Anti-Federalists represented diverse, though similar, opinions. Some were opposed to the Constitution because they felt a stronger government threatened the sovereignty and prestige of the states and localities. Some claimed a new, centralized, disguised "monarchic" power would only replace the system they had just fought against in Britain. Others simply feared the new government threatened their personal liberties.

Some among the opposition believed the central government under the Articles of Confederation was sufficient. Still others agreed with Federalists that the national government under the Articles was too weak, but felt that the national government under the Constitution would be too strong. A common complaint of Anti-Federalists was that the Constitution provided for a centralized, rather than federal, government, and that a truly federal form of government was a leaguing of states, as under the Articles of Confederation. They argued that the strong national government the Federalists proposed was a threat to the rights of individuals and that the US President would become a king-like figure. They also objected to the federal court system the proposed constitution created. Individualism was the opposition's strongest trait. The need for, or at least the appeal, of a bill of rights was almost universally felt.

Public Debate

During the period of debate over the Constitution's ratification, numerous independent local speeches and articles were published countrywide. Initially, many of the articles in opposition were written under pseudonyms, such as Brutus, Centinel, and Federal Farmer. Eventually, famous revolutionary figures such as Patrick Henry came out publicly against the Constitution. This produced a phenomenal body of political writing. Historians gathered the best and most influential of the subsequent articles and speeches into a collection known as the Anti- Federalist Papers, alluding to the well-known Federalist Papers.

Opposition to the Constitution was strong in every state. In North Carolina and Rhode Island it prevented ratification until definite establishment of the new government practically forced compliance. In Rhode Island, resistance to the Constitution was so strong that civil war almost broke out on July 4, 1788, when Anti-Federalist members of the Country Party, led by Judge William W. West, marched into the city of Providence with over 1,000 armed protesters.

The Anti-Federalists appealed to these sentiments in the ratification convention in Massachusetts. Five of the states had ratified the Constitution with relative ease, but the Massachusetts convention was far more bitter and contentious. Ultimately, after long debate, what was known as the Massachusetts Compromise was reached; by which Massachusetts would ratify the Constitution with recommended provisions that the Constitution be amended with a bill of rights. Incidentally, short of rejecting the Constitution, the Federalists contended that a conditional ratification would be void, so the recommendation was the strongest support that the ratifying convention could give to a bill of rights.

Ratification and Anti-Federalist Influence

Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. As a result, when the Constitution went into effect in 1789, Congress sent a set of 12 amendments to the states. Ten of the amendments were immediately ratified and became known as the Bill of Rights, with one of the other two becoming the 27th Amendment almost 200 years later. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not completely in vain.

With the passage of the Constitution and the Bill of Rights, the Anti-Federalist movement was exhausted. It was succeeded by the more broadly based Anti-Administration Party, which opposed the fiscal and foreign policies of President George Washington.

The Bill of Rights

The Bill of Rights refers to the first 10 amendments to the US Constitution, which outline the basic freedoms held by American citizens.

The Bill of Rights is the collective name for the first 10 amendments to the US Constitution. The amendments have the purpose of protecting the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers for the states and public. While the amendments originally applied only to the federal government, most of their provisions have since been held to apply to the states by way of the Fourteenth Amendment.

History of the Bill of Rights

James Madison introduced the amendments to the First United States Congress as a series of legislative articles. The House of Representatives adopted them on on August 21, 1789, they were formally proposed by joint resolution of Congress on September 25, 1789, and they came into effect as Constitutional amendments on December 15, 1791, through the process of ratification by three-fourths of the states. While Congress passed 12 amendments, only 10 had originally been passed by the states. One of the remaining two was adopted as the 27th Amendment and the other technically remains pending before the states.

Early Sentiments

To prevent the federal government from assuming excessive power, those who opposed the Constitution, who were known as Anti-Federalists, demanded a Bill of Rights, specifically designed to protect individual liberties. However, the idea of adding this bill to the Constitution was met with some resistance from the Federalists, who were supporters of the Constitution. For example in Federalist No. 84, Alexander Hamilton argued against such amendments, asserting that ratification of the Constitution did not mean the American people were surrendering their rights and, therefore, protections were unnecessary. Other Federalists claimed that the new government could not violate the people's rights because it only had limited powers. However, most state legislatures refused to ratify the Constitution without the Bill of Rights being added to the document.

Massachusetts Compromise and Ratification

The need for, or at least the desirability of, a bill of rights was almost universally felt, and the Anti-Federalists were able to play on these feelings in the ratification convention in Massachusetts. By this stage, five of the states had ratified the Constitution with relative ease. However, in Massachusetts, the Constitution ran into committed, organized opposition. Only after two leading Anti-Federalists, John Adams and John Hancock, negotiated a far-reaching compromise did the convention vote for ratification on February 6, 1788.

Under the Massachusetts Compromise, the delegates recommended that the new Congress consider the amendments should the Constitution enter into force. The Massachusetts Compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended.

Development and Ratification

James Madison recognized that Congress should respond to the demands of the state conventions and authored the text of the Bill of Rights. He based much of the Bill of Rights on the Virginia Declaration of Rights (1776) primarily authored by George Mason. That itself had been written with Madison's input. He carefully considered the state amendment recommendations as well. He looked for recommendations shared by many states so as to avoid controversy and reduce opposition to the ratification of future amendments. Madison's work on the Bill of Rights also reflected centuries of English law and philosophy, further modified by the principles of the American Revolution.

On November 20, 1789, New Jersey became the first state to ratify these amendments. On December 15, 1791, 10 of the proposals became the First through Tenth Amendments—and US law—when they were ratified by the Virginia legislature.

Brief Summary of Bill of Rights Articles

1. First Amendment: establishment clause, free exercise clause; freedom of speech, of the press, and of assembly; right to petition
2. Second Amendment: establishes the right to keep and bear arms
3. Third Amendment: establishes protection from quartering of troops
4. Fourth Amendment: establishes protection from unreasonable search and seizure
5. Fifth Amendment: guarantees due process, prohibits legal double jeopardy, protects against self-incrimination, establishes eminent domain
6. Sixth Amendment: guarantees trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel
7. Seventh Amendment: guarantees civil trial by jury
8. Eighth Amendment: prohibits excessive bail and cruel and unusual punishment
9. Ninth Amendment: protects the rights not specifically enumerated in the Constitution
10. Tenth Amendment: establishes powers of states and people