This article first appeared in Ideas on Liberty, June 2000.

by Wendy McElroy

A frequent question arises in disputes about interpreting the United States Constitution: "What was the intention of the framers, of the Founding Fathers?" This question contains an invalid assumption. It assumes that those drafted the Constitution at the 1787 Convention were of one mind and of one intent. Professor of Law Eugene W. Hickok, Jr. wrote in his Introduction to the anthology 'The Bill of Rights: Original Meaning and Current Understanding,'"...during the summer of 1787 and during the formative years of the early Republic, there was considerable disagreement over the idea of appending a bill of rights to the new Constitution, as there was controversy over the Constitution itself."(1) Hickok continues, "While it is something of an overstatement to describe the Constitution of 1787 as nothing but the product of political compromise, it is safe to say that the federal character of that Constitution...was hammered out through compromise."(p.456)

Perhaps the most infamous compromise embedded in the Constitution of 1787 was the 3/5ths rule which was included to soothe Southern fears of Northern domination. This 'rule' provided that a slave would count as 3/5ths of a person for the enumeration of population for the purposes of representation and taxation. This would dramatically increase the political presence of Southern whites within Union. Arguable, the most important compromise of the Constitutional Convention occurred on the question of equitable representation between the large and small states. The resolution: the new Congress should consist of two houses. In one, the representation should be proportional to a state's population; in the other, each state would have an equal vote.

The text of the Constitution itself provided for continued compromise by including an Amendment process. But -- in a political Catch 22 -- before amendments could be secured, the Constitution had to be ratified as is by nine of the 13 states who were bound together by the Articles of Confederation. At the outset, it was far from clear that a sufficient number would ratify and allow the Constitution to become the "law of the land."

The absence of a bill of rights was only one of the issues that sparked the ensuing controversy known as the Ratification Debates -- that is, the state by state conventions held to ratify or reject the Constitution. Should the thirteen colonies become one nation under the Constitution or remain as affiliated but relatively sovereign states? After all, the states had different and sometimes conflicting interests. For example, commercial states were often at political odds with more agricultural ones on such issues as tariffs. During the American Revolution, some states had paid a steep price for their autonomy which they were not eager to surrender. Indeed, there is reason to suspect that a majority of 'Americans' in 1787 did not approve of the Constitution. For example, Rhode Island had not bothered to send delegates to the Constitutional Convention. Even the staunch federalist Alexander Hamilton estimated that the majority within his state of New York opposed the measure.

But Congress needed to pay the costs of the American Revolution, which included a huge foreign debt and the redemption of paper certificates it had issued as money to soldiers during the war. This required collecting revenues on a federal scale. On September 17, 1787, the Constitution was signed, without a bill of rights. On September 28, Congress ordered the states to call ratifying conventions.

As the ratification debates progressed, some aspects of the proposed Constitution encountered little opposition. For example, the idea of a three-way split of power within government -- into the executive, the legislative, and the judicial powers -- was relatively uncontroversial. Other aspects exploded. The anti-ratification side of the debate was called Anti-Federalist, and its ranks included Patrick Henry, John Adams, Elbridge Gerry, and George Mason. The pro-Constitution side was called Federalist, and it included James Madison, Alexander Hamilton, John Jay and George Washington.

Thus, the question 'what was the intention of the framers of the Constitution' is misleading in another manner as well. Not only did the framers at the Constitutional Convention have differing intentions that produced a compromise document, but there were also founding fathers who absolutely opposed ratification. Yet, because the Federalists ultimately prevailed, the voices of Anti-Federalists such as the great orator Patrick Henry and George Mason -- author of the Virginia Declaration of Rights from which Jefferson drew heavily in writing the Declaration of Independence -- are usually ignored. Without their participation, however, it is unclear whether the Constitution would have subsequently adopted a Bill of Rights. The Constitution, including the Bill of Rights, can be understood only by referring to both sides of the debate.

The Ratification Debate Begins

In Pennsylvania -- home to Philadelphia, the Constitution's birthplace -- geographical divisions immediately arose. Western Pennsylvania was agricultural; it tended toward anti-federalism. Eastern Pennsylvania was commercial; it tended toward federalism. The Anti-Federalists were particularly concerned about the Constitution granting the right to issue paper money to a federal government. Then, religious objections joined economic ones. Somewhat contradictorily, some Anti-Federalists accused the Constitution of not protecting liberty of conscience while others complained about the lack of a religious test for office. (This sort of division within the ranks of Anti-Federalists would be played out in several states.)

On one point of strategy, however, Anti-Federalists seemed united: the ratifying conventions must be delayed to allow their criticisms to circulate. This was important because anti-federalist support came largely from isolated, rural communities. By contrast, the Federalists drew support from towns with well circulated newspapers. Thus, when Pennsylvania called for a ratifying convention in November, Anti-Federalists objected and did not return from the noon recess, thus denying the State House a quorum. The next day, a mob rounded up two dissenting members and forced them to return. A quorum was formed.

The convention would be in November in Philadelphia -- a staunchly Federalist town to which many rural people could not afford to travel. From here onward, an Anti-Federalist cry would be heard frequently: Federalists had an unfair advantage. They were better organized and, thus, benefited from speed. The had wide appeal in the towns hosting the conventions. They were better funded, with more access to publicity. A serious charge was quickly added. Anti-Federalists claimed that their mail, including newspapers, were being deliberately tampered with by Federalist postmasters in an attempt to silence them. Some Federalists would accuse their fellows of this misconduct as well.

At the Pennsylvania ratifying convention, the Federalists benefited from recent social turmoil in other states. For example, Shays Rebellion had erupted in Massachusetts, where farmers had revolted against that state's tax policies and farm foreclosures. In Virginia, taxpayers had burned down public buildings in protest. The Federalists argued persuasively that a a centralized government could control social unrest.

Debate began. The Anti-Federalists insisted upon a bill of rights to preserve civil liberties such as freedom of speech and just procedures such as trial by jury. The Federalists generally considered a bill of rights to be superfluous. Madison argued in the influential the "Federalist Papers," "Is a bill of rights essential to liberty? The [Articles of] Confederation has no bill of rights."(No. 38, p.238) In the "Federalist Papers," Hamilton added a warning note: a bill of rights would be a dangerous thing. He asked, "...why declare that things shall not be done which there is no power to do?"(p.513) If the federal government was granted no power whatsoever to censor speech, why raise the issue?

The Anti-Federalists also argued against a standing army -- that is, against a professional army maintained during peacetime. They were suspicious of professional soldiers, preferring temporary state militias instead. After all, state militias had just defeated a standing army (the British). Why was a professional military necessary? The Federalists countered that -- whether a permanent standing army was prudent -- Congress needed the ability to establish one when deemed necessary.

As Pennsylvania debated, the small state Delaware became the first state to ratify on December 7th, 1787. It did so by unanimous vote. Shortly thereafter, both Pennsylvania and New Jersey (then a small state as well) ratified. Speed and momentum were on the side of the Federalists. So was control of public access to the debate. In "The Bill of Rights," Ralph Rossum comments on the Pennsylvania Federalists who -- although they seemed unlikely to prevail at first -- eventually won the day with a vote of 46 to 23, "...The Federalist-dominated convention rejected the minority's propositions and refused even to enter them into the journal of the convention or the reporter's account of the debates."(p.274)

As a strategy, Anti-Federalists now began to call for amendments to the Constitution. Since Federalists had insisted on unconditional ratification (that is, ratification without amendments), such alteration might seriously delay passage of the Constitution or prevent it altogether.

Massachusetts was seen as the next key state. But before its convention opened on January 9th, two more states voted for union -- Georgia unanimously, Connecticut by a split vote. Each had different reasons. Georgia was on the brink of open warfare with Indians and with Spaniards in the Floridas: it could not afford to be isolationist. Connecticut wanted protection against the stiff customs imposed by larger neighbors (primarily New York) imposed.

Five states had ratified. Four more were required for passage of the Constitution. If ratification could be stopped in Boston, Anti-Federalists believed it might be halted altogether. Massachusetts was to the North what Virginia was to the South -- its most important leader and it was largely Anti-Federalist. New York, Rhode Island, Virginia, North Carolina, and New Hampshire also were largely Anti-Federalist. They might follow any example set by Massachusetts.

The Example of Massachusetts

The Anti-Federalists in Massachusetts constituted a majority of delegates at the convention, yet they lost by a vote of 187 to 168. Why?

There were at least two reasons. First, Anti-Federalists seemed to work against each other. For example, dozens of areas protested by refusing to send delegates to the convention, thus weakening Anti-Federalist representation. Second, the Federalists made a brilliant strategic move: they recommended that a list of suggested amendments (a bill of rights) accompany the ratification. John Hancock called this move the "conciliatory proposition." Thus, debate shifted away from ratification onto the specifics of the suggested amendments. Anti-Federalists cried out that the amendments would not be binding upon the first Congress, but the conciliatory proposition prompted Massachusetts to declare for Union, albeit by a narrow margin.

Six states had declared for Union. Seven states were yet to vote.

The Remaining States Declare

Having declined to send delegates to the Constitutional Convention, Rhode Island also did not call a ratifying convention. More than any other state, Rhode Island would have felt the impact of federal tariffs and it was not eager to relinquish its economy -- especially the right to issue currency -- to an outside power. Years before, Rhode Island had blocked an attempt by Congress to levy an impost duty of 5%. Now, Rhode Island held a referendum, polled each township, and rejected ratification by a vote of 28 against, 1 in favor.

In New Hampshire, in February 1788, the battle initially favored the Anti-Federalists who had swept the agricultural back lands. Sensing imminent defeat, the Federalists successfully pushed for an adjournment rather than a vote. All eyes turned Southward where four states -- Virginia, Maryland, North and South Carolina -- would soon vote.

Maryland held the first ratifying convention. There, Samuel Chase -- a signer of the Declaration of Independence who had refused to serve as delegate to the Constitutional Convention -- argued the Anti-Federalist case. Moreover, Governor Smallwood was Anti-Federalist. But the Constitution was popular with the shipbuilders, mechanics, and merchants of Baltimore who believed it would increase traffic and trade. Here, it was the Anti-Federalists who pushed adjournment, wanting to wait until Virginia could provide leadership. The Federalists countered by displaying a letter from George Washington who warned against adjournment. Maryland became the 7th state to ratify.

South Carolina would be next and the 3/5ths rule loomed large. Rich plantation owners (Federalists) and back-country farmers (Anti-Federalists) were at odds, but both were suspicious of the North. The 20 year Constitutional limitation on the importation of slaves into America was denounced and the privileges granted to 'Eastern (Northern) shipping' interests were decried. Federalists argued that the Constitution was a pro-slavery document because of the 3/5th rule and because it gave the Union no authority to emancipate existing slaves. Still, the Anti-Federalists attempted to adjourn until Virginia could be provide leadership. They failed. South Carolina became the 8th state to ratify, again with suggested amendments.

By the time New Hampshire reconvened on June 17, there was momentum toward ratification. On June 21st, New Hampshire ratified with suggested amendment -- 57 in favor, 47 against. This was the ninth state. The Constitution was the law of the land.

But would the nation include Virginia and New York?

Virginia and New York

Virginia's politics were complex. Many of America's most prominent leaders were Virginians, including several Anti-Federalists. George Mason staunchly opposed ratification. The great orator Patrick Henry had refused a seat at the Constitutional Convention, as had Richard Henry Lee -- the man who had asked the Continental Congress to declare independence from Britain. Even Thomas Jefferson wavered on a Constitution without a Bill of Rights. However, the Anti-Federalists in Virginia seemed to be in conflict with each other. Some opposed the Constitution; others merely wanted modifications.

Meanwhile, Federalists were also well represented by such prominent men as John Marshall, who later became Chief Justice of the Supreme Court. The Virginia debates were the most dramatic, partly due to the fiery presence of Henry. At the outset, a majority opposed ratification. Then, on the second day, news of South Carolina's ratification reached Virginia. On the third day, John Randolph -- formerly, a staunch Anti-Federalist -- stunned the assembly by declaring it was too late to stop or delay the Constitution.

As other states ratified, the Virginian Anti-Federalists played an ace card -- Southern fear of Northern domination. Under the Articles of Confederation, no northern proposal could pass as long as one southern state objected to it. The Constitution provided for majority rule. The North, Anti-Federalists warned, would dominate policy in trade, slavery, treaty-making and the distribution of wealth. In particular, Virginia feared that the North would be able to impose shipping laws favorable to its own interests upon the agrarian south.

Debate raged on. Indeed, the discussion went on so long and became so repetitive that, one morning, the shorthand reporter simply failed to show up. On June 26, Virginia became the 10th state to ratify, 89 in favor, 79 opposed.

New York was a familiar story. The Anti-Federalists held a two-thirds majority as the convention assembled on June 17th -- a date preceding the New Hampshire and Virginia ratifications. The New York debate echoed that of other states, but one issue was of particular interest: the power of Congress to lay direct taxes. New York's revenues came largely from imposts that kept state taxes low. Moreover, New York feared it would not receive fair representation due to the 3/5th rule and smaller states having an equal presence in the Senate.

In the end, the New York convention became a triumph for Alexander Hamilton, who rode a Constitutional wave toward ratification. With amendments attached, on July 23rd, New York ratified 30 in favor, 27 opposed.

On April 30, 1789, George Washington was inaugurated as the First President of the United States. But what of North Carolina and Rhode Island? North Carolinians were generally rural folk, who were suspicious of both townspeople and the Constitution. On August 2nd, North Carolina had voted 184 to 84 to wait for a second Constitutional convention that would consider suggested amendments. But, in face of the inevitable, the state became the 12th one to ratify on November 21.

Only Rhode Island held out. Then, in early 1790, the Senate severed all commercial relations with the rebellious state. It even hinted at a willingness to use force. On May 29th, Rhode Island ratified by a vote of thirty-four in favor, thirty-two against.


The Constitution of the United States should not be so idealized as to obscure its history. The document was born in an atmosphere of political compromise and political maneuvering. Its text, especially the Bill of Rights, was formed as much -- and, perhaps, more -- by its critics as by its advocates.

When asking the question, 'what was the intention of the framers of the Constitution?,' it should not be forgotten that its main architect, James Madison, did not originally believe a Bill of Rights was necessary to secure liberty. Yet, on June 8, 1789, Madison asked the House of Representatives to consider the amendments offered by the state ratifying conventions. Even then the course was not an easy one. Consider the Tenth Amendment -- which Justice Joseph Story, in "Commentaries on the Constitution of the United States", called "a mere affirmation" of a "necessary rule of interpreting the constitution." This Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Much debate revolved around whether to use the word 'expressly.' Thus, the suggested amendments, which were attached as a compromise, were the objects of further compromise before becoming law.

Rather than ask 'what was the intention of the framers' of the Constitution, it is valuable to inquire 'what compromise (if any) is reflected in a particular passage or amendment?' And to understand a compromise, it is necessary to listen carefully to the arguments from both sides.


Eugene W. Hickok (ed), "The Bill of Rights: Original Meaning and Current Understanding," (Charlottesville: Univ. of Va. Press, 1991.)

Alexander Hamilton, James Madison and J. Jay, "The Federalist Papers," ed. C. Rossiter (New York: New American Library, 1961).

J. Story, "Commentaries on the Constitution of the United States, Vol. 3 (Boston: C.C. Little and J. Brown, 1833).

Encyclopaedia Brittanica, Eleventh Edition.

Wendy McElroy home | | Individualist Feminist Compendium