RECAP: “The Rise and Fall and Rise of Ratification,” Colloquium w/ Prof. Anne Twitty
For at least a decade, the lecture to undergraduates has gone like this: In an age of constitutional innovation, Massachusetts provided the spark with the ratification of its 1780 state constitution; the delegates at the Constitutional Convention in Philadelphia happily appropriated this practice post-drafting; and from then on out, ratification was the American way. As KICD Distinguished Visiting Professor of Legal History Anne Twitty discovered in researching her chapter for Volume 1 of the Institute’s scholarly re-appraisal of the Missouri Crisis, and as she laid out in her February 25 colloquium, the one small problem with this lecture is, well, that it’s wrong. Of the 48 new or revised state constitutions adopted between 1780 (Massachusetts) and 1860 (Kansas), not a single one was ratified by a vote of the people between New Hampshire’s in 1784 and 1818, and it wasn’t until the mid-1830s that ratification became the rule, rather than the exception.
At least we’re not alone in this popular misconception. Gordon Wood described the Massachusetts experience as setting the proper pattern of constitution making and constitution altering going forward. James Willard Hurst, in The Growth of American Law, emphasized how the overwhelming weight of the work of constitutional conventions involved the submission of their product to the voters. And the textbook Liberty, Equality, and Power reads: “Starting with New Hampshire in 1784, other states adopted the Massachusetts model.” The potential reasons we’ve mangled this story, Prof. Twitty explained, are many. Especially among historians, there’s a pronounced scholarly disinterest in state constitutions of the early national and antebellum eras (Confederate and Jim Crow-era constitutions, however, have plenty of ink spilled on them). The histories that are out there, she added, are often siloed and narrate constitutional change through persistent passive constructions. And the constitutions themselves are often silent when it comes to articulating the appropriate mechanism for adoption.
Perhaps more than anything, though, we might be guilty of consistently misreading what one might call the touchstone moments of our familiar U.S. History lectures. In the case of Massachusetts, we may have glossed over two things: that the process there was different from what we associate with ratification, running through towns instead of individuals; and that, by virtue of this, ratification should be understood less as an innovation and more as an extension of a long history of town governance. (As for New Hampshire, it might just be a red herring in the mystery, given the degree to which its constitution copied Massachusetts’.) In the case of the U.S. Constitution, we might not have paid quite enough mind to Federalists’ puppeteering. Because there were already concerns about the legitimacy of the convention—and because the Articles of Confederation proved that some kind of ratification would likely be inevitable—they turned to the people to establish the document’s legal legitimacy out of practicality, rather than as evidence of some lofty idealization of the public will. There is no reason, then, to assume that the need to ratify the federal constitution was a referendum on the need for ratification, writ large.
What literature exists on ratification, particularly in the immediate wake of the U.S. Constitution, supports this idea that ratification was one option among many for determining the legality of state charters. As John Adams makes clear in his Autobiography, the existence of a drafting body consisting of representatives chosen by the people was far more central to asserting legitimacy than an up/down vote by the people. Only if there was doubt about said legitimacy, Adams wrote, would a convention then “send out their project of a constitution, to the people in their several towns, counties, or districts” in order to “make the acceptance of it their [the people’s] own act.” Upon arriving at the conclusion that Virginia’s state constitution was illegitimate, Jefferson similarly advocated not for popular ratification but for a special convention to be called to draft a new constitution. “[The] people must delegate persons with special powers,” he wrote, to render a form of government unalterable.
Even in Pennsylvania, arguably the most populist of the original thirteen colonies, we see what little impact the experience of federal ratification had at the state level. While the product of the 1789-90 Pennsylvania Constitutional Convention was submitted for public opinion, this was not tantamount at all to a public vote. There was, in fact, no debate or discussion resultant to that process of soliciting what people thought, and as political opposites James Wilson and Albert Gallatin described, while consent was essential, there was no mandate on what form it should take. For Wilson, it was the “uninterrupted experience” of the drafting process, and for Gallatin, it was the sincerity of delegates’ discussion and deliberation, that allowed them to consider the constitution universally approved.