America's Unwritten Constitution: The Precedents and Principles We Live By (12 page)

The special link between American-style popular sovereignty and majority rule had appeared in a canonical legal text even before the Declaration of Independence. Virginia’s famous Declaration of Rights, adopted in June 1776, had asserted “as the basis and foundation of government” the principles that “all power is vested in, and consequently derived from, the people,” and that whenever “any government shall be found inadequate…,
a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it
, in such manner as shall be judged most conducive to the public weal.” Virtually every other state followed Virginia’s lead with one or more legal odes to popular sovereignty; but none specified the majority-rule-in-amendment principle with comparable clarity.
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Over the next decade, several states seemed to deviate from simple majority rule in their practices of constitutional formation and/or their provisions for constitutional amendment. But by 1787, the intellectual and political momentum had shifted decisively toward the advocates of majority rule. On the Federalist side, leaders such as Wilson, Madison/Publius,
Hamilton/Publius, and Gouverneur Morris all insisted that the right of the people to alter or reform their government at all times resided in a simple majority. Leading Anti-Federalists, such as George Mason (the author of the 1776 Virginia Declaration), Patrick Henry, and “the Federal Farmer,” emphatically agreed.
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Though some Americans doubtless remained outside this crystallizing consensus, the enactment practice set into motion by Article VII bespoke a remarkable convergence: Ultimately, both Federalists and Anti-Federalists in each of the thirteen states deemed it sufficient that the state legislature had summoned a specially elected convention which had then voted yes by majority rule. As Wilson remarked in the Pennsylvania ratifying convention, “Who are the majority in this assembly?—Are they not the people?”
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WHEN THE PHILADELPHIA FRAMERS
unveiled their proposed Constitution in September 1787, the nonexclusivity of state constitutional amendment clauses and the sufficiency of majority rule in the process of state constitutional change were powerful political and legal theories, but not much more. A year later, these theories were established political and legal facts. Over the ensuing years, state after state has emulated the remarkable examples set in 1787–1788. Thus, Pennsylvania and Delaware legislators summoned new state conventions in 1790 and 1791, respectively, to reform state constitutions via simple-majority votes, even though these two states’ 1776 constitutions had specified different and arguably exclusive supermajoritarian amendment procedures. Since then, states from every region have followed suit, amending their constitutions via an assortment of popular-sovereignty and majority-rule procedures nowhere specified in, and at times arguably contrary to, old constitutional texts. Fully two centuries of state constitutional reform have thus tracked specific enactment practices set in motion by Article VII—practices nowhere specified in the federal Constitution’s text, yet clearly part of the very process by which that text sprang to life.
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Let us also note one additional set of questions raised by the centrality of majority rule in the Founding enactment process: If majority rule was indeed—or, if you like, in deed—the unwritten voting principle for every state ratifying convention, wasn’t majority rule also, and for similar reasons,
the unwritten voting rule for the House and the Senate? And if so, does this mean that today’s Senate has the right to change its current filibuster rules by a simple majority vote—even though the written Constitution does not say all this in so many words? As we shall see in
Chapter 9
, the particular manner in which the Constitution was enacted in each state ratifying convention in 1787–1788 does in fact have precisely this enormous implication.

A HARDCORE TEXTUALIST
might at first dismiss the very idea of an unwritten Constitution as hopelessly confused and undisciplined, if not downright illegitimate. On this view, America’s written Constitution is a crisply defined text with a neatly bounded and universally identifiable set of words. Everyone knows, or can easily learn, what is within its four corners and what is not. Moreover, the document refers time and again to itself—to “this Constitution”—as a written text. A companion resolution drafted by the Philadelphia Convention in mid-September 1787 likewise used the phrase “the preceding Constitution” to refer to a particular piece of prose to be laid before the American people via specially elected ratifying conventions. Both in those conventions themselves and in the larger continental conversation out of doors in 1787–1788, Americans everywhere promiscuously and unselfconsciously used the word “Constitution” to refer to that particular piece of prose. Americans in every subsequent generation have followed suit. By contrast, an “unwritten Constitution” seems maddeningly vaporous, lacking the sharpness of an easily recognizable set of words. What warrant is there for venturing even an inch beyond the four corners of the document itself, or for describing anything outside the text as part of our actual “Constitution”?
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The enactment argument turns the tables on this hardcore textualist. The Preamble’s language prominently directs readers to the ratification process as the very foundation of the entire document’s legal authority. Similar language appears in the Constitution’s eye-catching final provision, Article VII: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution.” Any self-proclaimed textualist
who fails to focus on the ratification process has ignored proverbial neon signs found in the opening and closing sentences of the text itself.

Indeed, what happened during the enactment process established the official content and contours of the document. Several slightly differently worded, differently capitalized, and differently punctuated texts—each calling itself “this Constitution”—were floating around after mid-September 1787. Which of these was the
real
written Constitution? Exactly where did the real document’s
official legal text
begin and end? As it happens, the document’s boundaries are not self-evident on the face of the text itself. Unless we look beyond the text, we cannot even determine which ink marks are, in fact, the official written Constitution. In a startling twist, it turns out that the corners and crispness of the written Constitution exist thanks to events outside the text—events that form part of the seemingly squishy “unwritten Constitution.”
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Even more startling, events outside the iconic parchment under glass at the National Archives definitively establish that
this
particular piece of prose was not the official copy of the Founders’ written Constitution. The American people never formally ratified the handwritten, hand-signed parchment that almost everyone today uses as the authoritative version of the Founders’ Constitution. Even the Senate is on record that this revered parchment is of no legal significance.

Fortunately, the document that
was
officially ratified by Americans in the late 1780s—a text printed in New York several days after the close of the Philadelphia Convention—bears a close resemblance to the familiar National Archives parchment. Although the ratified version features different punctuation and capitalization, its words are almost (but not absolutely) identical to those penned onto the iconic parchment. For most purposes, the National Archives version suffices. But on one particularly hot issue in contemporary culture wars—involving the parchment’s reference to Jesus as “our Lord”—the Constitution’s official text diverges, thereby casting light on first principles of church and state.

ON SEPTEMBER
15, 1787, the delegates to the Philadelphia Convention finally reached agreement on a complete text. After months of deliberations carefully veiled from outside scrutiny, the Convention was ready to
go public with its proposed Constitution. But how? In a world without fax machines, photocopiers, or even mimeographs, eighteenth-century Americans generally relied on two technologies to generate hard copies of legal texts: engrossing (handwriting) and letterpress printing. The men at Philadelphia availed themselves of both technologies on September 15.

Maryland delegate James McHenry recorded the following entry in his daily journal: “Ordered [Constitution] to be engrossed and 500 copies struck [printed]—Adjourned till monday the 17th.” Convention President George Washington’s September 15 diary entry confirms McHenry’s: “[A]djourned ’till Monday that the Constitution which it was proposed to offer to the People might be engrossed—and a number of printed copies struck off.”
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Both engrossing and printing were carried out under the direction of the Convention’s Committee of Style, which on September 17 presented the assembly with a single four-page engrossed parchment for endorsement. After the text was read aloud and a last-minute alteration was agreed to and penned in, thirty-nine of the forty-two delegates present added their signatures to the parchment. The Convention then charged Secretary William Jackson to deliver the proposed Constitution to the Congress that was organized under the existing Articles of Confederation and sitting in New York City.
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Although it is possible that each Philadelphia signer carefully examined the parchment before endorsing it, such a tedious practice would have painfully slowed the signing ceremony. No more than a few delegates could have examined the engrossed copy simultaneously. More likely, each delegate simply referred to his own printed copy of the draft Constitution that the Committee of Style had distributed on September 12, a document that had served thereafter as the Convention’s working paper. Perhaps some delegates assumed that the parchment was identical to the September 12 draft, as revised between the 12th and the 15th—an assumption apparently confirmed by the oral reading of the engrossed document. In fact, this assumption was false: The two versions differed in small ways—such as punctuation and capitalization—that were unlikely to be detected by any delegate listening to the reading of the engrossed copy while carefully following along by consulting his own copy of the September 12 print.

On September 18, the five hundred printed copies that had been authorized three days earlier were struck by the Philadelphia print shop of John Dunlap and David C. Claypoole and distributed to the remaining delegates. Like the September 12 draft print, however, the September 18 print punctuated and capitalized the constitutional text rather differently from the engrossed parchment signed on September 17.

On September 20, William Jackson reached New York and laid before Congress the Philadelphia delegates’ proposed Constitution. Whether or not the parchment was read aloud—the records on this point are murky—here, too, delegates probably relied on their own printed copies. On September 28, Congress unanimously voted to forward the proposed Constitution to the states for ratification. Accordingly, Secretary of Congress Charles Thompson, evidently using the September 18 print as his guiding template, arranged for one hundred copies to be printed for transmission to the states. For this project, Thompson used the print shop of John McLean, a New York publisher with ties to the Philadelphia printer John Dunlap.
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Virtually no one in the several states had access to the signed parchment that remained in the files of Congress in New York. Rather, the September 28 print was carefully reprinted in lots of up to ten thousand for mass distribution to the citizenry. This was the version submitted to the people of the United States as they chose their delegates to various ratifying conventions. This was the version that those ratifying conventions in turn used. And this was the version, with minor stylistic variations, that nine out of thirteen ratifying conventions expressly included in their formal instruments of ratification submitted to Secretary Thompson.
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By 1789, eleven state conventions had ratified the new Constitution—enough for it to go into effect under Article VII. One of the first acts of the new Congress was to authorize the printing of “a
correct
copy of the Constitution of the United States.” Published in 1789 by Francis Childs and John Swaine, “printers to the United States,” this copy followed (with minor deviations) the printed archetype of September 28, 1787, and not the engrossed parchment.
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Unfortunately, in the confused administrative transition from government under the Articles to government under the Constitution, no single copy of the September 28 print was preserved as a definitive master copy.
Nevertheless, according to a 1961 Senate document that investigated the matter in great detail, this lapse “created no question for many years.” The text “printed in the session laws of 1789, which was undoubtedly reproduced from a copy of the print of September 28, 1787, was accepted as the real thing.” For decades, “this printed archetype was the model followed in official editions of the laws and other governmental issues.” Although editing discrepancies crept into some official editions, “the frequent prints for the use of the Houses of Congress in what became the Senate and House Manuals reproduced the printed archetype with great fidelity.”
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Meanwhile, what had become of the Philadelphia parchment that now graces the National Archives? For many years, the parchment was all but forgotten, buried in the disorganized files of the old Confederation. In 1818, Congress provided for the publication of the theretofore-secret offi-cial journal of the Philadelphia Convention. Secretary of State John Quincy Adams oversaw the compilation of the primary documents, and the product of his labors was published in 1819. Though this publication failed to include the text of the engrossed parchment, the work of organizing loose files had apparently uncovered its original four pages. The following year, the State Department published an edition of the engrossed text as an item of historical interest.
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