United States Bill of Rights - The Bill of Rights - Ratification and The Massachusetts Compromise

Ratification and The Massachusetts Compromise

Individualism was the strongest element of opposition; the necessity, 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, the Massachusetts convention was bitter and contentious:

In Massachusetts, the Constitution ran into serious, organized opposition. Only after two leading Anti-federalists, Adams and Hancock, negotiated a far-reaching compromise did the convention vote for ratification on February 6, 1788 (187–168). Anti-federalists had demanded that the Constitution be amended before they would consider it or that amendments be a condition of ratification; Federalists had retorted that it had to be accepted or rejected as it was. Under the Massachusetts compromise, the delegates recommended amendments to be considered by the new Congress, should the Constitution go 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.

On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin, who urged unanimity, although the Convention decided that only nine states were needed to ratify. The Convention submitted the Constitution to the Congress of the Confederation

Massachusetts’ Rufus King assessed the Convention as a creature of the states, independent of the Articles Congress, submitting its proposal to Congress only to satisfy forms. Though amendments were debated, they were all defeated, and on September 28, 1787, the Articles Congress resolved “unanimously” to transmit the Constitution to state legislatures for submitting to a ratification convention according to the Constitutional procedure. Several states enlarged the numbers qualified just for electing ratification delegates. In this they went beyond the Constitution's provision for the most voters for the state legislature to make a new social contract among, more nearly than ever before, "We, the people".

Following Massachusetts' lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments. A minority of the Constitution’s critics continued to oppose the Constitution. Maryland’s Luther Martin argued that the federal convention had exceeded its authority; he still called for amending the Articles. Article 13 of the Articles of Confederation stated that the union created under the Articles was "perpetual" and that any alteration must be "agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State".

However, the unanimous requirement under the Articles made all attempts at reform impossible. Martin’s allies such as New York’s John Lansing, Jr., dropped moves to obstruct the Convention's process. They began to take exception to the Constitution “as it was”, seeking amendments. Several conventions saw supporters for "amendments before" shift to a position of "amendments after" for the sake of staying in the Union. New York Anti’s “circular letter” was sent to each state legislature proposing a second constitutional convention for "amendments before". It failed in the state legislatures. Ultimately, only North Carolina and Rhode Island would wait for amendments from Congress before ratifying.

Article VII of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect (for the participating states). After a year had passed in state-by-state ratification battles, on September 13, 1788, the Articles Congress certified that the new Constitution had been ratified. The new government would be inaugurated with eleven of the thirteen. The Articles Congress directed the new government to begin in New York City on the first Wednesday in March, and on March 4, 1789, the government duly began operations.

George Washington had earlier been reluctant to go the Convention for fear the states “with their darling sovereignties” could not be overcome. But he was elected the Constitution's President unanimously, including the vote of Virginia’s presidential elector, the Anti-federalist Patrick Henry. The new Congress would be a triumph for the Federalists. The Senate of eleven states would be 20 Federalists to two Virginia (Henry) Anti-federalists. The House would seat 48 Federalists to 11 Antis from only four states: Massachusetts, New York, Virginia and South Carolina.

Antis' fears of personal oppression by Congress would be allayed by Amendments passed under the floor leadership of James Madison in the first session of the first Congress. These first ten Amendments ratified by the states were to become known as the Bill of Rights. Objections to a potentially remote federal judiciary would be reconciled with 13 federal courts (11 states, Maine and Kentucky), and three Federal riding circuits out of the Supreme Court: Eastern, Middle and South. Suspicion of a powerful federal executive was answered by Washington’s cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph as Attorney General and Thomas Jefferson as Secretary of State.

What Constitutional historian Pauline Maier calls a national “dialogue between power and liberty” had begun anew.

Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. They all sent recommendations for amendments with their ratification documents to the new Congress. Since many of these recommendations pertained to safeguarding personal rights, this pressured Congress to add a Bill of Rights after Constitutional ratification. Additionally, North Carolina refused to ratify the Constitution until progress was made on the issue of the Bill of Rights. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not totally in vain.

After the Constitution was ratified in 1789, the 1st United States Congress met in Federal Hall in New York City. Most of the delegates agreed that a "bill of rights" was needed and most of them agreed on the rights they believed should be enumerated.

Madison, at the head of the Virginia delegation of the 1st Congress, had originally opposed a Bill of Rights but hoped to pre-empt a second Constitutional Convention that might have undone the difficult compromises of 1787: a second convention would open the entire Constitution to reconsideration and could undermine the work he and so many others had done in establishing the structure of the U.S. Government. Writing to Jefferson, he stated, "The friends of the Constitution...wish the revisal to be carried no farther than to supply additional guards for liberty...and are fixed in opposition to the risk of another Convention....It is equally certain that there are others who urge a second Convention with the insidious hope of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself."

Madison based much of the Bill of Rights on George Mason's Virginia Declaration of Rights (1776), which 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 to avoid controversy and reduce opposition to the ratification of the future amendments. Additionally, Madison's work on the Bill of Rights reflected centuries of English law and philosophy, further modified by the principles of the American Revolution.