America's Unwritten Constitution: The Precedents and Principles We Live By (11 page)

To put the point a slightly different way, an enactment argument can perhaps be seen as a textual argument of sorts—an interpretation of the tiny but powerful workhorse word “do” in the Preamble. The argument from enactment prompts us to understand what was in fact
done
by the people in the very process of ordaining and establishing the Constitution. And what was done—as Wilson and Madison highlighted during and shortly after the event—was a remarkable embodiment of free speech, speech that was inextricably intertwined with the very deed of ordainment itself.

Enactment arguments also share one of the great strengths of various classical arguments derived from the Constitution’s general structure: a focus on the Constitution as a whole rather than on some small clause or part. Whereas many standard textual arguments are small-bore and
clause-bound, enactment arguments are panoramic, drawing our attention to how the entire Constitution came into being. In this sense, an enactment argument is the ultimate structural argument, with a historical twist.

Howsoever we classify enactment arguments—whether we view them as historical, or textual, or structural—we need to see that the written Constitution and the unwritten Constitution cohere to form a single system. While the Preamble’s text does not quite say, in so many words, that “the process by which this document is being enacted is itself part of the Constitution, and thus a source of constitutional law and constitutional principle,” the Preamble text surely gestures toward this idea, directing our gaze to the specific set of events by which the Constitution’s text itself came to life. In turn, these events point back to the legal text that was born in this process. Here, too, we see how neither America’s written Constitution nor America’s unwritten Constitution stands alone. Rather, the two stand together and buttress one another.

THE REMARKABLE FREEDOM OF SPEECH
that flourished in 1787–1788 culminated in a series of votes to enact into law the plan proposed by the Philadelphia delegates. But what master voting rule determined the legal winner in this process? In other words, exactly how many yes votes were legally necessary to enact the Constitution? How many no votes would have legally reversed the outcome? To answer these questions and understand the profound implications of the answers, we must once again read the Constitution not merely as a text, but also as a deed.

A quick glance at the terse text would seem to suggest that a supermajority principle was at work in 1787–1788, with the ratification bar set higher than a simple majority but lower than unanimity. According to the words of Article VII, “the Ratification of the Conventions of nine [out of thirteen] States, shall be sufficient for the Establishment of this Constitution.” But a closer examination, attentive to how Americans in fact enacted the Constitution within each state, underscores the remarkable centrality and salience of simple majority rule. This centrality is all the more remarkable precisely because the word “majority” is unwritten; it appears nowhere in
the text of Article VII. But, as we shall now see, simple majority rule clearly does appear in the deed—the doing, the enactment—of Article VII.

THE NINE-THIRTEENTHS RULE OF ARTICLE VII
differed from a standard voting rule in one critical respect: The (nine or more) states voting yes would not bind the (four or fewer) states voting no. Article VII made clear that in the event of nine or more yeses, the proposed Constitution would take effect only “between the States so ratifying.” (As the enactment process in fact occurred in 1787–1788, two states—Rhode Island and North Carolina—declined to ratify and thus stood outside the new Union when the Constitution went into effect.) Typical voting rules, by contrast, specify conditions under which the yes voters bind the no voters. For instance, if a majority of each house of Congress votes for a proposed law and the president signs it, that law ordinarily binds even the congressmen who voted against it (as well as their constituents, of course).

Viewed from this angle, Article VII can be reconceptualized as an interstate unanimity rule of sorts: The new document would bind only those states that would agree to be bound. The logic here was straightforward. Prior to the Constitution’s ratification, the Articles of Confederation, which all thirteen states had ratified during the Revolution, provided the framework for interstate relations. Those Articles declared that each of the thirteen states was a legally sovereign entity. The Confederation itself was merely a “league of friendship,” a multilateral treaty among the thirteen sovereigns. The Philadelphia framers were proposing to dissolve this treaty via a process in which nine or more states would quit the old Confederation and recombine into a new indivisible union. Obviously, each sovereign state in this process had to be free to decide for itself. No consenting sovereign, or combination of consenting sovereigns, could properly bind any nonconsenting sovereign to the new legal order.

Within each state, however, the yes voters in the ratifying convention did claim the right to bind the no voters. But subject to what voting rule? How high was the bar set
inside
each state ratifying convention? This was the critical question hiding beneath the surface of Article VII, which spoke directly to the interstate voting rule but said nothing about the intrastate voting rule.

Once we shift our gaze from Article VII’s text to the actual state enactment practice set in motion by that article, four key facts come into view. First, every state convention operated under simple majority rule. (In three of America’s largest states, the yes voters in convention mustered only the slimmest of majorities—187 to 168 in Massachusetts, 89 to 79 in Virginia, and 30 to 27 in New York, the cliffhanger to end all cliffhangers.) Second, each state convention followed majority rule even though the federal Constitution’s text contained not a single word specifying this as the proper metric. (Evidently, it went without saying.) Third, this rule operated even in states whose constitutions arguably required something more. Fourth, when each convention vote actually took place, Anti-Federalists generally accepted the legitimacy of simple majority rule. When outvoted, the naysayers—many of whom passionately opposed the Constitution—acquiesced, often without a peep.

MASSACHUSETTS MERITS SPECIAL ATTENTION.
Here, as in every other state, a vote to ratify the federal Constitution was a vote to modify the existing state constitution in certain respects. The Bay State constitution had come into operation in 1780 only after having cleared an extraordinarily high bar—a two-thirds vote of the state electorate. A plausible structural argument from symmetry would have insisted that any modification of the 1780 rules must likewise clear a two-thirds bar. The amendment clause of the 1780 document could also be read to privilege the two-thirds principle. It provided that a new constitutional convention would meet in 1795 if “two-thirds of the qualified voters…who shall assemble and vote” so desired.
⁷

Note the amendment clause’s key date: 1795. The Bay State’s eventual ratification of the federal Constitution
in 1788
necessarily occurred outside the confines of this clause, which was thus treated as a nonexclusive provision setting forth merely one way, rather than the only way, by which state constitutional reform could properly occur. (Here, too, Americans at the Founding rejected the argument from negative implication.) But even if the Massachusetts amendment clause in its entirety did not apply—even if 1788 could properly substitute for 1795, and even if the legislature could call the convention without waiting for any request from the “qualified voters”
assembled in their respective townships—it was yet another leap for Federalists to substitute simple majority rule for the two-thirds principle.

One notable Anti-Federalist essayist, “A Republican Federalist,” argued that although the amendment clause need not be viewed as exclusive, it certainly had to be read as exemplary. Why should the voting rules for 1788 differ wildly from those laid out for 1795? If simple majority rule in a state convention meeting pursuant to a standard state statute could suffice in 1788, then presumably the same thing would be true in 1795. But that result, emphasized the essayist, would render the amendment clause “a nullity.”
⁸

This was hardly an incontrovertible interpretation. The state amendment clause could also be viewed merely as specifying certain procedures applicable when the legislature resisted constitutional reform and refused to call a constitutional convention on its own motion. Since, in 1787–1788, the legislature was willing to act on its own authority, the amendment clause was arguably irrelevant.

But only arguably, for the “Republican Federalist” essayist had a colorable claim on the other side. The likely author of this essay was James Warren—speaker of the Massachusetts House of Representatives, husband of the formidable writer Mercy Otis Warren, and brother-in-law of the late James Otis, an early hero in the patriot cause of the 1760s. Here, then, was a large figure making a large legal assertion. Yet when the hour of decision arrived in the Massachusetts convention itself, no diehard Anti-Federalist delegate tried to make a last stand on this legal ground. On the contrary, as soon as the final vote was announced, several of the convention’s leading Anti-Federalist spokesmen stood up and graciously conceded defeat, explicitly and repeatedly emphasizing in their brief remarks that the convention “majority” had lawfully decided the matter. When word of the ratification reached young John Quincy Adams, who had previously inclined against the proposed Constitution, the future president wrote in his diary that “I think it is my duty to submit.…In our Government, opposition to the acts of a majority of the people is rebellion to all intents and purposes.”
⁹

Neighboring New Hampshire closely tracked the Massachusetts model. Here, too, a state constitutional amendment clause could be read to require a two-thirds vote of the state electorate. Here, too, the Federalists treated the clause as irrelevant. Here, too, the state legislature acted on its
own authority to summon a ratifying convention. Here, too, the convention ultimately gave the Federalists victory only by a slim majority (via a vote of 57 to 47, to be precise). Yet here, too—and this is the most remarkable fact, given the intense passions kindled by the Philadelphia plan—Anti-Federalist delegates gamely acquiesced when narrowly outvoted.

WHEREAS NEW HAMPSHIRE WAS ONE
of the last states to say yes, Pennsylvania had been one of the first—and Keystone State Anti-Federalists had barked much louder. But in the end they did not bite.

When outvoted in a state convention held late in 1787, disaffected Anti-Federalist delegates in Pennsylvania published a slashing protest that included ominous language asserting that the entire convention proceedings had been illegal under the state constitution of 1776. Foreshadowing the later experiences in Massachusetts and New Hampshire, Pennsylvania Federalists had simply sidestepped an explicit state constitutional amendment clause that pivoted on a two-thirds rule of sorts. According to that clause, in 1783 and “in every seventh year thereafter,” a convention was to meet if two-thirds of a special group—the “council of censors”—so decreed. Operating outside the clause in the autumn of 1787, an impatient state legislative majority had used aggressive parliamentary tactics to ram through a bill authorizing a specially elected state ratifying convention, which then used simple majority rule in the ultimate ratification vote. In response to the Federalists’ political hardball and haste, the outvoted Anti-Federalist delegates contended that the convention had no “authority to do any act or thing, that can alter or annihilate the constitution of Pennsylvania (both of which will be done by the new constitution)
nor are their proceedings in our opinion, at all binding on the people
.”
¹⁰

But like the Massachusetts and New Hampshire amendment clauses, Pennsylvania’s clause could plausibly be construed merely as laying down rules to be followed if the legislature resisted constitutional change, while leaving the legislature free at all times to call a convention on its own motion. Thus, even the disaffected Pennsylvania dissenters seemed disinclined to double down on their claim that the state amendment clause was exclusive, or to lay great stress on its two-thirds pivot. Indeed, in one passage the dissenters appeared to concede that the state constitution could legitimately
be modified if “a majority of the people should evidence a wish for such a change.”
¹¹

This critical concession positioned the dissenters in the mainstream of American constitutional thought in the late 1780s. Across the continent, patriots from all points on the political spectrum had come to believe that, regardless of the specific wording of various state constitutional clauses, the people had an inalienable legal right to alter or abolish inadequate governmental systems, and that such a legal right could be exercised by a simple majority of the people in any given state.

Nice questions of institutional detail arose within the broad outlines of the majority-rule principle. For instance, must a majority of the voters weigh in directly, or could a convention majority suffice? (This was an especially fair question in Massachusetts and New Hampshire, where the general electorate had directly authorized state constitutions in the early 1780s.) What if the convention delegates themselves were selected in an election with low turnout? (This was a key complaint of the disgruntled Pennsylvanians.) But these nice questions should not obscure the widespread agreement circa 1787 on the special status of majority rule in making and amending state constitutions.