Debates on the Judiciary during the Convention and Ratification

Timeline for the Ratification of the Constitution

Recorder William Jackson took the signed Constitution to New York, where the Continental Congress was in session.  For two days, September 26 and 27, Congress debated whether the delegates to the Constitutional Convention had exceeded their authority by proposing a new national constitution rather than merely proposing amendments to the Articles of Confederation.  On September 28, however, Congress decided to send the proposed Constitution to the states to consider whether to ratify.  The Congress itself neither endorsed nor opposed ratification.  

Under Article VII, nine of the thirteen states had to ratify the Constitution in order for it to take effect.  How would Americans react to a national Constitution containing a judicial branch with the potential to be very powerful, yet whose contours were not clear?

Five states (Delaware Pennsylvania, New Jersey, Georgia and Connecticut) ratified within a few months.  Each had its unique political and economic reasons for concluding that the proposed national government was better than remaining under the Articles of Confederation.

Quick approval by those five states, however, did not assure smooth sailing in the quest for the approval of the additional four states required for ratification. It was understood at the outset that Rhode Island probably would not ratify.  It had refused to send delegates to the Convention.  The document was submitted to Rhode Island voters in a series of referenda.  They voted against ratification each time.   A small agrarian state whose politics was dominated by debtors, voters in Rhode Island feared creation of a large commercial republic that would favor creditors. 

North Carolina also seemed unlikely to ratify. Its spokesman, and later ambassador to the central government, Hugh Williamson, expressed the fear that government under the Constitution would infringe on the state’s political liberties. (North Carolina eventually did convene a convention in November 1789.  By then, however, the Constitution had been ratified and George Washington was President.  The North Carolina delegates still refused to vote on ratification.  Instead, they adopted a resolution calling for a Declaration of Rights and a list of constitutional amendments.  Finally, on November 21, 1789, well after James Madison had submitted 12 proposals for a Bill of Rights in the House, North Carolina agreed to ratify.  Rhode Island did not do so until May 29, 1790, after Congress had approved the Bill of Rights and sent them to the states for consideration.)

Debates were intense in the six remaining states, four of which were required for ratification—Massachusetts, Virginia, New York, South Carolina, Maryland, and New Hampshire.  Opponents to ratification became known as “Anti-Federalists.”  They included several delegates to the Constitutional Convention who left Philadelphia believing that the proposed Constitution was fatally flawed.  Virginia’s George Mason, for example, who had participated actively in the debates, decided near the end of the Convention not to sign the proposed Constitution.  James Madison observed in his October letter to Jefferson that Mason “left Philadelphia in an exceeding ill humour indeed.” (Madison to Jefferson, October 24, 1787)  Mason became a vocal opponent of ratification, as was his fellow Virginian Patrick Henry.