Judges and lawyers sometimes refer to the “intent of the framers” or the “original meaning” when describing how we should read the U.S. Constitution. However, if you want to apply the Founders’ own rules of interpretation to the Constitution, the understanding of the ratifiers is most important.
The Constitutional Convention adjourned on September 17, 1787, and its product quickly became public information. Ratification by state conventions began in late 1787. By the time the new federal House of Representatives met in March, 1788, 11 states had signed on. However, North Carolina, Rhode Island, and Vermont all remained out of the union. (Vermont had not even been part of the United States.) Accordingly, the government’s proceedings were conducted under the eyes of citizens of states still considering whether to ratify. In addition, several states had served notice that they ratified with the expectation that a bill of rights would be added to the Constitution.
North Carolina approved the instrument on November 21, 1789, and Rhode Island on May 29, 1790. The latter date is generally considered the end of the ratification era. But Vermont did not ratify until January 10, 1791.
There were 1648 delegates to the 13 state conventions that initially ratified the Constitution. There were an additional 109 delegates in Vermont. So how do we know how they understood the document’s meaning? Of course, we do not have direct evidence because no one can read another’s mind. But we do have circumstantial evidence. And although circumstantial evidence tends to be downplayed in trials on television, in fact it can be very strong. People are routinely convicted of crime based on strong circumstantial evidence of what, for example, their intent was when they committed the crime.
The most important literary resource existing today for capturing the ratifiers’ understanding is a series of volumes issued by the Wisconsin Historical Society. The series is called the Documentary History of the Ratification of the Constitution. It collects convention proceedings, notes by participants, correspondence, newspaper articles, and other documents pertaining to the ratification process. The first volumes were published in 1976 and were edited by noted historian Merrill Jensen. Professor Jensen has now passed on, but his successors have continued the job. We now have 29 volumes, some filled with commentary from throughout the country and some devoted to the ratification in individual states.
Volumes 27 and 28 are both relatively new. They cover South Carolina and New Hampshire. Even newer is Volume 29, which covers Vermont and some proceedings in the dying Confederation Congress. Not yet issued are four volumes pertaining to North Carolina and state ratification of the Bill of Rights.
I recently reviewed Volumes 27, 28, and 29. There are no great surprises. But there are some notable contents. This post lists the highlights from Volume 27. A second post will list those from Volumes 28 and 29:
* Volume 27 contains an interesting letter from ratifier-physician-historian David Ramsey to the noted Pennsylvania professor and physician Benjamin Rush. In it, Ramsey notes a parallel between the three major branches of the new government and the Christian trinity. As I point out in my book The Original Constitution: What It Actually Said and Meant, when Gouverneur Morris finalized the Constitution he included several cultural markers like that.
* The book reproduces a Charleston, S.C., newspaper article signed “Caroliniensis.” It contains some useful comments on freedom of religion. Another article by the same author tends to confirm the conclusion I’ve documented elsewhere, that presidential electors were to exercise independent judgment.
* There is a statement by framer-ratifier Charles Cotesworth Pinckney affirming that the federal government was to have no power over the press. Of course, one logical deduction from this is that the federal government was to have no power over other local businesses.
* Also included is the speech by his cousin Charles Pinckney, likewise both a framer and ratifier. It confirms that a republic need not be purely representative, as some claim, but that a republic is a government “where the people at large, either collectively or by representation, form the legislature.” (For more evidence on the point, see this article.) Pinckney further suggests that the president may be subject to prosecution for crime only after his term of office is over.
* An important speech by ratifier Francis Cummins is included, in which he implies that an “establishment of religion” is when the government favors some religions over others—in conformity with my earlier conclusion.
* Finally, those who view the Constitution as a direct grant of power to the federal government from the people rather than as an interstate compact can take comfort from a Baltimore Gazette article reprinted in this volume. The anonymous writer refers to the Constitution as a document whereby the people take powers away from the state legislatures and give them to Congress. (I also discuss this controversy in The Original Constitution.)
Very little of the Documentary History is available online. You have to buy the printed books.
Next time: New information from the New Hampshire and Vermont volumes.