American History & Civics › The Federalist Papers › The ratification debate

American History & Civics · 1787–1790

The Ratification Debate, Side by Side

From September 1787 to May 1790, Americans argued in newspapers, pamphlets and thirteen state conventions over whether to adopt the Constitution. Here the two sides answer each other subject by subject, followed by a timeline of how each state decided.

Debate pairs

Each subject gives the question, each side’s case in a few sentences, as its best advocates made it, and the texts on this site where they argue it. “What happened” tells how the question was settled later, or whether it is still argued. Both sides were patriots who had lived through the Revolution; read them as they read each other, closely.

Can a republic work in a large country?

Most writers before 1787 said a free republic had to be small. Would one government over thirteen states and a vast territory end in despotism?

Federalists

A large republic is safer, not weaker. Representatives filter opinion, and a wide country holds so many interests that no single majority faction can take over. The national government has only listed powers; the states keep the rest.

  • Federalist 9 The Union as a Safeguard Against Domestic Faction and Insurrection
  • Federalist 10 The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection)
  • Federalist 14 Objections to the Proposed Constitution From Extent of Territory Answered
  • Federalist 39 The Conformity of the Plan to Republican Principles

Anti-Federalists

One government cannot know or fairly govern so large and varied a country. Representatives would be few and distant, people would not trust them, and laws would need soldiers to enforce them. The plan would merge the states into one consolidated government.

What happened: The country grew from 13 states to 50. People still debate how much power belongs to the nation and how much to the states.

Was there an emergency?

Was the country in such danger under the Articles of Confederation that it had to adopt the plan quickly?

Federalists

Yes. Congress could not tax, pay its debts, regulate trade or enforce treaties; the country was near “the last stage of national humiliation.” A government must act on individuals, not ask states for favors.

Anti-Federalists

No. The country was at peace, the states were working, and the Articles needed amending, not replacing. Haste served men who wanted power; there was time to get it right.

What happened: Historians still discuss how serious the troubles of the 1780s were. Both sides agreed that the Confederation needed more power over trade and revenue.

Did the Convention go beyond its instructions?

The Convention was called to revise the Articles. It wrote a new constitution and said nine states, not all thirteen, could put it into effect.

Federalists

The delegates were told to make the government adequate to the Union’s needs; when the instructions conflicted, the purpose came first. In any case the plan was only a proposal, and the people, through ratifying conventions, would decide.

  • Federalist 40 On the Powers of the Convention to Form a Mixed Government Examined and Sustained
  • Federalist 39 The Conformity of the Plan to Republican Principles
  • Federalist 43 The Same Subject Continued (The Powers Conferred by the Constitution Further Considered)

Anti-Federalists

The delegates were sent to amend, not to replace. Writing “We, the people” instead of “We, the states” changed the nature of the Union without authority.

What happened: All thirteen states ratified by 1790, which settled the practical question; the legal argument is still discussed by historians.

The power to tax, and the "necessary and proper" clause

Should Congress have a general power to tax, and the power to make all laws “necessary and proper” to carry out its powers?

Federalists

Money is the lifeblood of government; requisitions failed. Taxing power is shared with the states except on imports. The Necessary and Proper Clause only states what any grant of power implies, and laws beyond the Constitution are void.

  • Federalist 30 Concerning the General Power of Taxation
  • Federalist 31 The Same Subject Continued (Concerning the General Power of Taxation)
  • Federalist 32 The Same Subject Continued (Concerning the General Power of Taxation)
  • Federalist 33 The Same Subject Continued (Concerning the General Power of Taxation)
  • Federalist 34 The Same Subject Continued (Concerning the General Power of Taxation)
  • Federalist 44 Restrictions on the Authority of the Several States

Anti-Federalists

Taxing power without limit, joined to the “sweeping” Necessary and Proper Clause and the Supremacy Clause, would let Congress take every source of revenue and leave the states nothing.

What happened: In McCulloch v. Maryland (1819) the Supreme Court read “necessary and proper” broadly. The Sixteenth Amendment (1913) allowed a federal income tax without apportionment.

Standing armies and the militia

Should Congress be able to keep an army in peacetime and govern the militia?

Federalists

Danger cannot be predicted, so defense powers cannot be capped. Congress, not the President, raises armies, and must vote their funding at least every two years. The states appoint militia officers, and the people are armed.

  • Federalist 8 The Consequences of Hostilities Between the States
  • Federalist 24 The Powers Necessary to the Common Defense Further Considered
  • Federalist 25 The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)
  • Federalist 26 The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
  • Federalist 29 Concerning the Militia
  • Federalist 41 General View of the Powers Conferred by The Constitution
  • Federalist 46 The Influence of the State and Federal Governments Compared

Anti-Federalists

Peacetime armies have destroyed free governments throughout history. Congress’s control of the militia could leave it neglected or turn it against the people. Armies should require a supermajority, and the militia should stay with the states.

What happened: The Second Amendment (1791) was one response. Its meaning is still debated in the courts and in public.

Is the House of Representatives large enough?

The first House had 65 members, about one for every 30,000 people at most. Could so few represent the people?

Federalists

Very large assemblies become mobs. Representatives need to understand federal subjects, not every local detail. Electors are “not the rich, more than the poor,” members must live under their own laws, and the House will grow with the census.

  • Federalist 35 The Same Subject Continued (Concerning the General Power of Taxation)
  • Federalist 52 The House of Representatives
  • Federalist 55 The Total Number of the House of Representatives
  • Federalist 56 The Same Subject Continued (The Total Number of the House of Representatives)
  • Federalist 57 The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation
  • Federalist 58 Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered

Anti-Federalists

So few members would be wealthy, well-known men who cannot know the farmers and tradesmen they represent, and who could be bribed. A true representative body should be a likeness of the people.

What happened: The House grew with the population until it was fixed at 435 members by law in 1929 (it has had 435 since 1913, apart from a brief change after Alaska and Hawaii joined).

Who controls elections?

Article I lets Congress alter the states’ rules for the times, places and manner of congressional elections.

Federalists

Every government must be able to preserve itself; the states alone could refuse to hold elections and destroy the Union. The power covers only times, places and manner, not who may vote.

  • Federalist 59 Concerning the Power of Congress to Regulate the Election of Members
  • Federalist 60 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)
  • Federalist 61 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)

Anti-Federalists

Congress could move polling places or set times to keep ordinary voters away and keep itself in power.

What happened: Congress later used the power to set a single federal Election Day and other rules. Disputes over election rules continue in Congress and the courts.

The Senate

Senators chosen by state legislatures, two per state, for six years, sharing in treaties, appointments and impeachment trials.

Federalists

Equal votes recognize the states’ remaining sovereignty. A small, stable body brings wisdom and steadiness, guards against hasty laws, and protects the nation’s reputation abroad.

Anti-Federalists

Long terms with no rotation or recall would make senators permanent, an aristocracy joined to the President in executive business. Equal votes are unfair to large states.

What happened: The Seventeenth Amendment (1913) moved the choice of senators from state legislatures to the voters.

The presidency

A single President, chosen by electors for four years, re-eligible without limit, commanding the military, with a veto and the pardon power.

Federalists

“Energy in the Executive is a leading character in the definition of good government.” One person acts with decision and can be held responsible. The President is elected, can be impeached, and shares treaties and appointments with the Senate; he is far from a king.

Anti-Federalists

The office “squints towards monarchy.” Without a council or a term limit, a President could build a court of followers, use the army, shield accomplices with pardons, and stay in office for life.

What happened: Washington’s choice to serve two terms became custom; the Twenty-second Amendment (1951) made it law. The Twelfth Amendment (1804) changed how electors vote. Debates about the reach of presidential power continue.

The federal courts and judicial review

Judges serving during good behavior, with power over all cases arising under the Constitution and federal law, and a Supreme Court with final say.

Federalists

The judiciary is “the least dangerous” branch, with neither force nor will. Courts must treat the Constitution as higher law and declare contrary acts void; this puts the people’s will above both legislature and courts. Congress can impeach judges who overreach.

Anti-Federalists

Judges serving for life, interpreting the Constitution by its “spirit,” answerable to no one, would steadily expand federal power and swallow the state courts. Appeals on facts would weaken juries.

What happened: Marbury v. Madison (1803) established judicial review in practice. The Eleventh Amendment (1795) barred certain suits against states. Scholars and citizens still debate how far judicial power should reach.

Trial by jury in civil cases

The Constitution guaranteed juries in criminal trials but said nothing about civil cases.

Federalists

Silence does not abolish civil juries; Congress can provide them. The states’ practices differed too much for one rule.

  • Federalist 83 The Judiciary Continued in Relation to Trial by Jury
  • Federalist 81 The Judiciary Continued, and the Distribution of the Judicial Authority

Anti-Federalists

Leaving civil juries out, and allowing appeals “as to law and fact,” endangered one of the oldest protections of ordinary people.

What happened: The Seventh Amendment (1791) guaranteed jury trial in federal civil suits at common law over twenty dollars.

A bill of rights

Should the Constitution include a list of the people’s rights?

Federalists

The Constitution grants only listed powers, so “why declare that things shall not be done which there is no power to do?” A list could be read to imply other powers. The Constitution already protects several rights, and is itself a bill of rights.

  • Federalist 84 Certain General and Miscellaneous Objections to the Constitution Considered and Answered

Anti-Federalists

Because federal laws are supreme, state bills of rights would not protect people against the national government. Rights left to inference are lost; they must be written down: conscience, press, juries, searches, and more.

What happened: Several states ratified with recommended amendments. Madison proposed amendments in the First Congress, and the Bill of Rights was ratified in 1791. The Ninth Amendment speaks to Hamilton’s worry about implied powers.

Amend first, or adopt first?

Both sides came to agree the plan had flaws. Should it be amended before ratification or after?

Federalists

Amending first would need a new convention and new compromises among thirteen states. After adoption, amendments can be made one at a time. “I never expect to see a perfect work from imperfect man.”

Anti-Federalists

Once in power, the new government would have no reason to limit itself. “Why not amend, and then adopt it?”

What happened: The states adopted first and recommended amendments. Ten amendments were ratified by 1791, though many structural changes the Anti-Federalists wanted were not made.

Slavery in the Constitution

The Constitution counted three-fifths of enslaved people for representation and direct taxes, protected the import trade in enslaved people until 1808, and required the return of people escaping slavery. Its text never uses the word “slave.”

Federalists

Federalist 42 calls the 1808 date a gain, since Congress could then end the import trade; Federalist 54 explains the three-fifths rule by voicing the argument of a Southern advocate, while calling parts of it “a little strained.”

  • Federalist 42 The Powers Conferred by the Constitution Further Considered
  • Federalist 54 The Apportionment of Members Among the States

Anti-Federalists

Anti-Federalists were divided. Mason objected to protecting the slave trade; others objected to counting enslaved people for representation; some Southern opponents feared the national government would one day act against slavery.

What happened: Congress banned the import trade effective 1808. Slavery was abolished by the Thirteenth Amendment (1865), and the three-fifths rule was replaced by the Fourteenth Amendment (1868).

Ratification by state

Article VII said the Constitution would take effect among the states that ratified once nine had done so. Each state held a special convention, elected for the purpose. The new Congress first met in March 1789 and George Washington took office on April 30, 1789, while North Carolina and Rhode Island were still outside the Union.

  1. 1 Delaware · December 7, 1787Unanimous; the first state to ratify. 30–0
  2. 2 Pennsylvania · December 12, 1787The convention’s minority published its “Address and Reasons of Dissent” days later. 46–23
  3. 3 New Jersey · December 18, 1787Unanimous. 38–0
  4. 4 Georgia · January 2, 1788Unanimous. 26–0
  5. 5 Connecticut · January 9, 1788 128–40
  6. 6 Massachusetts · February 6, 1788Ratified with recommended amendments, a pattern later states followed. 187–168
  7. 7 Maryland · April 28, 1788 63–11
  8. 8 South Carolina · May 23, 1788Recommended amendments. 149–73
  9. 9 New Hampshire · June 21, 1788The ninth state, so the Constitution would take effect among the ratifying states. Its convention had adjourned once, in February, without voting. 57–47
  10. 10 Virginia · June 25, 1788After Patrick Henry and George Mason led the opposition; recommended a bill of rights and other amendments. 89–79
  11. 11 New York · July 26, 1788Ratified with recommended amendments and a circular letter calling for a second convention. 30–27
  12. 12 North Carolina · November 21, 1789Its first convention, at Hillsborough in summer 1788, voted 184 to 84 neither to ratify nor to reject. It ratified at Fayetteville after Congress had sent amendments to the states. 194–77
  13. 13 Rhode Island · May 29, 1790Never sent delegates to the Convention. In a referendum on March 24, 1788, which most Federalists boycotted, voters rejected the Constitution 2,714 to 238 (one count; tallies differ slightly). A convention finally ratified by two votes. 34–32

Votes are convention votes, for and against. Sources: Article Seven of the United States Constitution, Wikipedia (table of ratification dates and votes). Ben's Guide to the U.S. Government, U.S. Government Publishing Office (bensguide.gpo.gov), dates of ratification. North Carolina Department of Natural and Cultural Resources, "Hillsborough Convention Fails to Ratify Constitution" (dncr.nc.gov). Center for the Study of the American Constitution, University of Wisconsin–Madison, "Rhode Island Democracy Rejects the Constitution" (csac.history.wisc.edu).

A map of the order

A simple tile map: each square is a state, placed roughly where it lies on the coast, numbered in the order it ratified. It is not drawn to scale.

Tile map of the thirteen states, colored by when they ratified the ConstitutionDelaware: 1th to ratify, December 7, 1787, 30–0DE1Pennsylvania: 2th to ratify, December 12, 1787, 46–23PA2New Jersey: 3th to ratify, December 18, 1787, 38–0NJ3Georgia: 4th to ratify, January 2, 1788, 26–0GA4Connecticut: 5th to ratify, January 9, 1788, 128–40CT5Massachusetts: 6th to ratify, February 6, 1788, 187–168MA6Maryland: 7th to ratify, April 28, 1788, 63–11MD7South Carolina: 8th to ratify, May 23, 1788, 149–73SC8New Hampshire: 9th to ratify, June 21, 1788, 57–47NH9Virginia: 10th to ratify, June 25, 1788, 89–79VA10New York: 11th to ratify, July 26, 1788, 30–27NY11North Carolina: 12th to ratify, November 21, 1789, 194–77NC12Rhode Island: 13th to ratify, May 29, 1790, 34–32RI13

1–9: by June 21, 178810–11: summer 178812–13: after the new government began

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