Legal Lore. Was There Ever a Serious Debate About Whether to Approve the Constitution?

• Author: Richard Dean
• Pages: 8-9

HEADNOTES

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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LEGAL LORE

Was There Ever a

Serious Debate

About Whether

to Approve the

Constitution?

RICHARD DEAN

The author is a partner with Tucker Ellis LLP,

Cleveland.

The most thought-provoking new play on

Broadway last year, and on a national tour

before the pandemic, was Heidi Schreck’s

What the Constitution Means to Me. Its

first part is largely autobiographical. As

a teenager, Ms. Schreck regularly spoke

on this topic at American Legion contests

to win money to pay for college. She fo-

cused especially on women’s rights—or

the lack thereof—under the Constitution

and in the context of her life experiences.

The play ends with a brilliant scene where

Ms. Schreck challenges a skilled high school

debater on whether we should keep or get

rid of the Constitution.

The irony of public debates about

the Constitution is that the framers had

very few of them in deciding whether to

adopt the document in the first place. The

Constitutional Convention was cloaked

in secrecy. The public had no idea that it

was even taking place—they thought the

statesmen had gathered to make modifi-

cations to the Articles of Confederation.

In fact, even as the proposed

Constitution went to the 13 states for rati-

fication, no meaningful debate took place

in most of them. Virginia was the lone ex-

ception, and there the debates were spec-

tacular, conducted by some of the most

famous men of the day.

The pro-Constitution forces were led

by James Madison and the opponents by

Patrick Henry. A detailed account of this

debate is set forth in Albert Beveridge’s

The Life of John Marshall (Houghton

Mifflin Co. 1916). Beveridge served as

a Republican U.S. senator from Indiana

from 1899 to 1911. He turned to history af-

ter his Senate term was over. His four-vol-

ume work on Marshall won the Pulitzer

Prize for history. The account of this de-

bate comes at the end of volume 1. At the

time of the Virginia convention, Marshall,

one of the delegates, was a young lawyer

in Richmond.

The debates in the Virginia Convention

were the only time when all parts of

the Constitution were debated. The

Constitution had been ratified with little

or no discussion in Delaware, New Jersey,

and Connecticut. Those states felt the

Constitution gave them commercial ad-

vantages. Georgia thought it was neces-

sary to defend against Native Americans. In

Pennsylvania, the opponents refused to at-

tend the convention to consider ratification.

Proponents wanted a Constitution

to stem the chaos under the Articles

of Confederation, which empowered

the Confederation to make treaties, but

the states could and did violate them.

The Confederation could not levy tax-

es. It could make humble requests

called “requisitions” on the sovereign

“Commonwealths,” which then treated

the requests with contempt. The states

passed tariffs against each other, trying

to keep money within their borders. The

Confederation was weak by design.

George Washington, John Jay,

Alexander Hamilton, James Madison, and

many others were angry at their weakness.

Thomas Jefferson, however, did not think

badly of the Articles of Confederation, but

he was still in France when the Virginia

debate unfolded in June 1788. The mer-

cantile and financial interests wanted a

national government with the ability to

regulate trade. The debtors and agricul-

tural interests were against such a gov-

ernment. Not surprisingly, Marshall was

a constitutionalist from day one—his best

clients were from the mercantile class.

The details of the proposed

Constitution were not well known to the

public, but one idea had gotten out—that

the Constitution would form a strong, con-

solidated national government. Patrick

Henry estimated that as many as nine-

tenths of the Virginia population was

opposed to such a strong government—

Virginia’s farmers and debtors, two siz-

able groups, were against it.

So how did Virginia approve the

Constitution in the face of such numbers?

The constitutionalists chose their delegate

candidates well. John Marshall is an ex-

cellent example of this point. He was sim-

ply very well liked in Richmond. Edmund

Pendleton and George Wythe were others

elected on the same basis. After the del-

egate elections, it appeared that there was

a slim majority favoring the Constitution.

Extended debate did not change that fact.

Madison, one of the fathers of the

Constitution, played a small public role

in the Virginia Convention. He was not

publicly popular statewide. He managed

to get elected from Orange County given