INTRODUCTION I. THE SIGNATURES IN HISTORICAL CONTEXT A. The Signing of the Constitution B. Precursors to the Constitution's Signatures 1. Formal Differences 2. Semantic Differences II. THE SIGNATURES' AMBIGUITY A. Attesting Versus Endorsing: The Ambiguity Exposed 1. The Attesting Interpretation 2. The Endorsing Interpretation B. Accounting for the Differences: The Ambiguity Explained III. THE SIGNATURES' PURPOSE A. The Signatures as a Marketing Device 1. Unanimity 2. Prestige 3. Momentousness B. The Signatures as a Constraining Device IV. THE SIGNATURES IN MODERN CONSTITUTIONAL DEBATE A. Federalism B. Revolutionary Ties C. Constitutional Authorship CONCLUSION INTRODUCTION
On September 17, 1787, the final day of the Constitutional Convention, North Carolina delegate Hugh Williamson made a proposal. The proposal did not concern any substantive provision of the Constitution, the final draft of which was all but complete, and it did not call for any additional orders of business for the day. Instead, Williamson's proposal concerned the delegates' plan to sign the Constitution. Speaking just hours before business concluded in Philadelphia, Williamson voiced his opposition to this plan, suggesting instead that "the signing should be confined to the letter accompanying the Constitution to Congress which might perhaps do nearly as well, and would be found satisfactory to some members who disliked the Constitution." (1)
There appear to be no further records of Williamson's thinking on this matter, so we cannot know for sure what motivated his proposal. That said, Williamson could have advanced at least five arguments in favor of leaving the Constitution unsigned.
The first argument--and the one that Williamson's brief remarks gesture toward--relates to those delegates who harbored doubts about the Convention's final product. In particular, Williamson could have argued that dissatisfied delegates would have fewer reservations about signing a cover letter than about signing the Constitution itself, because signatures on a cover letter, especially if accompanied by the right wording, were less likely to translate into an unqualified endorsement of the Convention's work. Given the choice between a fully signed cover letter and a partially signed Constitution, Williamson appears to have preferred the former, and for good reason. The Constitution was soon to go before ratifying conventions across the country, and some expression of total unanimity among the Philadelphia delegates, even if vague, might well have looked better than a clearly nonunanimous expression on the face of the document submitted for review.
Second, Williamson could have reminded his colleagues that the Constitution, if ratified, would belong not to the delegates at the Constitutional Convention, but to the people of the United States. As Article VII made clear, the document was to remain a mere proposed charter of governance until at least nine popularly elected state conventions had ratified it. (2) And, as Article V made clear, the document, once ratified, could be changed freely by the action of a supermajority of state legislative bodies. Signing this document, Williamson could have argued, would take authorship credit away from "We the People," the collective entity in whose name the Constitution spoke and whose assent alone could give it legal force. (3)
Third, Williamson might have noted that, by signing the Constitution, the delegates ran the risk of putting the names of foreigners on the national founding charter. Article VII, after all, required only nine states to ratify the Constitution, so it was possible that the new nation would exclude as many as four of the states whose delegates' names appeared on the document. Concerns about referencing states not in the union had already prompted the framers to revise an earlier version of the Preamble, (4) and these concerns seem equally applicable to the signatures, especially in light of the delegates' plan to sign on a state-by-state basis.(5)
Fourth, Williamson could have pointed to tradition. None of the "constitutive" American documents with which he and his colleagues were familiar--including the Articles of Confederation and the eighteenth-century state constitutions--had ever been signed at such a preliminary stage in their legal development. (6) These documents had taken on their signatures during, or well after, the time that they acquired legal force. The Constitution, in contrast, remained a mere proposal at the time of its signing and still faced many hurdles before it could become law.
Finally, Williamson could have taken a long-term perspective, arguing that the signatures would historicize the Constitution. He might have expressed concern that the delegates' names would overemphasize the document's origins and thereby tempt future generations to perceive it as frozen in the past rather than adaptable to their time. He might have added that a listing of names would interrupt the flow from the main text of the document to its future amendments and that the nation would soon embrace far more states than the ones identified by the signatures. In short, a list of signatures entered in 1787 might come to look ill fitting on a Constitution "intended to endure for ages to come." (7)
Rather than heed Williamson's advice, the delegates at Philadelphia concluded business by affixing their names to the document over which they had spent the past four months laboring. Days later, when copies of the Constitution began to appear in newspapers around the country, (8) everyday Americans would find at its bottom a veritable "Who's Who" of the nation's political leaders--including such titans as Benjamin Franklin, Alexander Hamilton, James Madison, Gouverneur Morris, James Wilson, and the soon-to-be first President, George Washington.
This Note attempts to explain why, in spite of all the potential objections to the signing of the Constitution, the delegates at Philadelphia put their names to the document. Broadly speaking, there were two compelling reasons for signing the Constitution, both of which anticipated the fierce battle for ratification that would follow on the heels of the Constitutional Convention. First, the delegates' signatures would function as a marketing device, highlighting important pro-Constitution selling points to the people who would ultimately determine its fate. Second, the signatures would function as a constraining device, preventing the Constitution's signatories--all of whom carried considerable local influence--from publicly opposing the document once the ratification battles began.
But this is only half of the signatures' story. For, while the marketing and constraining functions help to explain the signatures' presence on the face of the Constitution, they leave unanswered the question of what the delegates at Philadelphia intended to convey--and ultimately did convey-with their signatures. What, in other words, did the framers understand themselves to communicate when they put their names onto the Constitution and how were their signatures interpreted by those who encountered them during ratification? As it turns out, the answer to this question is by no means straightforward. Indeed, as this Note will show, the signatures were shrouded in ambiguity from the moment they took form, leading some to interpret them as mere attestations to the fact that the Convention adopted the Constitution and others to interpret them as endorsements of the Constitution itself. This ambiguity, moreover, resulted from design rather than accident, and it ended up increasing the effectiveness of the signatures' ratification-related functions.
The Note proceeds as follows: Part I provides historical context, including a description of the Constitution's signing and a comparison of the Constitution's signatures to those on similar documents already in existence in 1787. Part II turns to the signatures' ambiguity, analyzing the various interpretations that might have been given to the signing act--both by the signers themselves and by those who first confronted the signatures--and explaining how and why these various interpretations might have arisen. Part III then addresses the central question: What was the signatures' purpose? Section III.A. shows that the signatures functioned as a marketing device, explaining the signatures' role in underscoring the unanimity of affairs at Philadelphia, the prestige of the framers, and the momentousness of the choice the ratifiers had been called on to make. Section III.B. then demonstrates that the signatures also functioned as a constraining device, which effectively impeded signatories with reservations about the Constitution from later opposing ratification. Finally, Part IV discusses some ways in which my historical discussion of the signatures might influence our contemporary understanding of the Constitution.
THE SIGNATURES IN HISTORICAL CONTEXT
The Signing of the Constitution
It is unclear whether, at the outset of the Convention, the delegates at Philadelphia expected that their final product would display their names. From Madison's notes we know that at least one delegate, South Carolinian Charles Cotesworth Pinckney, had acknowledged the possibility of signing by August 22nd, less than a month before the signing actually occurred. Opposing a proposed clause that would ban the importation of slaves, General Pinckney "declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution [including such a clause] & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents." (9) Also, by mid-September Elbridge Gerry had stated his intention to "withhold his name" from the Constitution, even though no one had yet moved to sign it. (10)
The formal motion to sign came from Benjamin Franklin, the oldest delegate at Philadelphia. (11) Franklin...