But Madison, after having paid his respects to Legality, hastens to add that in all great changes in government “forms ought to give way to substance.” A rigid adherence to mere technicalities “would render nominal and nugatory the transcendent and precious right of the people ‘to abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” That is, the right of revolution is, at bottom, the justification for all great political changes. If it is argued that this right of revolution should not be exercised by a small group of men, such as the Convention of fifty-odd delegates at Philadelphia, Madison replies that it is impossible for the whole people to move forward in concert, and “it is therefore essential that such changes be instituted by some informal and unauthorized propositions made by some patriotic and respectable citizen or number of citizens.” This was the manner in which the recent revolt against England was carried out; and in the present case the people had the right to pass upon the work of the Philadelphia assembly.
The opponents of the Constitution were able to see the significance of that clause of the Constitution which cast aside the legal system under which they were living and provided that the new instrument should go into effect when ratified by nine states—as between those states. “Cornelius,” in Massachusetts, exhibited great anxiety on this point, and in his letters of December 11 and 18, 1787, he asked concerning this departure: “Will not the adoption of this constitution in the manner here prescribed be justly considered as a perfidious violation of that fundamental and solemn compact by which the United States hold an existence and claim to be a people? If a nation may so easily discharge itself from obligations to abide by its most solemn and fundamental compacts, may it not with still greater ease do the same in matters of less importance? And if nations may set the example, may not particular states, citizens, and subjects follow? What then will become of public and private faith? Where is the ground of allegiance that is due to government? Are not the bonds of civil society dissolved? Or is allegiance founded only in power? Has moral obligation no place in civil government? In mutual compacts can one party be bound while the other is free? Or, can one party disannul such compact, without the consent of the other? If so, constitutions and national compacts are, I conceive, of no avail; and oaths of allegiance must be preposterous things.”[[545]]
On all hands the “unconstitutional” procedure of the Convention was attacked by the Anti-Federalists. “A system of consolidation,” says another writer, “has been formed with the most profound secrecy and without the least authority: And has been suddenly and without any previous notice transmitted by the federal convention for ratification—Congress not disposed to give any opinion on the plan, have transmitted it to the legislatures—The legislatures have followed the example and sent it to the people. The people of this state, unassisted by Congress or their legislature, have not had time to investigate the subject, have referred to the newspapers for information, have been divided by contending writers, and under such circumstances have elected members for the state convention—and these members are to consider whether they will accept the plan of the federal convention, with all its imperfections, and bind the people by a system of government, of the nature and principles of which they have not at present a clearer idea than they have of the Copernican system.”[[546]]
Whatever was thought of the merits of the controversy over the proposed plan of ratification, it was accepted by the state legislatures which were invited by Congress to transmit the Constitution to special conventions. It remains to inquire, therefore, what methods were employed in calling these conventions and setting the seal of approval on the new and revolutionary proposals of the Philadelphia assembly.
The resolution calling the convention in New Hampshire to pass upon the federal Constitution was adopted by the legislature on December 14, 1787. The time for holding the elections was left to the selectmen of the several towns, who were instructed to warn the duly qualified voters of the event. The date for the meeting of the convention was fixed on the second Wednesday of February, 1788.[[547]] Four hundred copies of the Constitution were ordered to be printed for distribution.
The elections seem to have been held about mid-January, for the New Hampshire Spy, for January 25, 1788, contains a long list of delegates already chosen, and adds that “several of the towns not mentioned in the above list were to have had their meetings this week.”
A majority of the members of the state convention so chosen, writes a student, who has inquired into the personnel of that body, “were undoubtedly opposed to the Constitution.... The talent of the convention was decidedly on the side of the Federalists and a majority of the ablest members were in favor of ratification.... For a time the friends of the Constitution had hopes of securing its ratification without a recess of the convention. Although the greater number of the members from the upper part of the state came down rather opposed to its adoption, yet on the final question it was hoped that a majority would be found to favor it. But these hopes proved delusive. While some of the members who came to the convention instructed to vote against the Constitution had been led by the discussions to a change of opinion and now favored it, they still felt bound by their instructions, and frankly said that if a final vote was to be taken before they had an opportunity to consult their constituents their vote would be adverse to ratification.”[[548]] Under these circumstances the Federalists adjourned the convention and set to work to convert the enemy. When the convention reassembled a few months later, they were able to carry the day by the uncomfortably small margin of 57 to 47.[[549]]
In Massachusetts the Federalists lost no time in moving for a convention. As early as October 20, 1787, they carried a favorable resolution in the senate of the state, and secured the concurrence of the house four days later. This resolve provided that the delegates should be chosen by those inhabitants “qualified by law to vote in the election of representatives,” and the elections should take place “as soon as may be” in the several towns and districts. The date for the meeting of the delegates was fixed as the second Wednesday in January next. On January 9, 1788, the Convention met at Boston; and a real battle of wits ensued.
As in New Hampshire, the delegates, when they came together fresh from their constituents, appeared to be opposed to adopting the new instrument of government. A careful scholar, who has studied the period intensively, takes this view: “Had a vote been taken on the adoption of the Constitution as soon as the convention assembled, there can be no question but that it would have been overwhelmingly against the proposed plan.”[[550]]
Even after powerful influences had been brought to bear, the margin for the Federalists was uncomfortably close—187 to 168. Harding remarks: “The majority in favor of ratification, it will be seen was only nineteen. The nine delegates whose names were returned to the convention, but who were not present when the vote was taken, might almost have turned the scale in the other direction. Bearing in mind that it was mainly the Antifederalist towns that were unrepresented, it may be safely asserted that out of the forty-six delinquent corporations there were enough which were Antifederalist to have procured the rejection of the constitution. This calculation, however, is based on the assumption that a corresponding increase did not take place in the Federalist representation. Had all the towns entitled to send representatives done so, and had all the delegates been present to cast their votes, it is probable that the final result would not have been changed, though the Federalist majority would have been cut down to scarcely more than a bare half-dozen.”[[551]]