America's Unwritten Constitution: The Precedents and Principles We Live By (86 page)

10
  Pa. Const. (1776), sec. 47; “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents” (Dec. 18, 1787), in
Storing’s Anti-Fed
., 3:149 (emphasis added).

         
While aggressive, Pennsylvania Federalists’ parliamentary tactics did not cross the line into blatant illegality. The Pennsylvania assembly used its sergeant at arms and other allies to track down and arrest a pair of Anti-Federalist assembly members who tried to absent themselves from the assembly chamber and thereby defeat a quorum.
Once found, these would-be quorum breakers were physically obliged to return to the chamber and take their seats. For colorful accounts, see Maier,
Ratification
, 63–64; Bruce Ackerman,
We the People: Transformations
(1998), 55–56. This use of physical force fell comfortably within the sweeping traditional powers enjoyed by all legislative assemblies to enforce discipline over assembly members and to oblige the members’ attendance at legislative sessions (see Chapter 9). Also, Pennsylvania’s 1776 Constitution contained a highly unusual assembly quorum rule of two-thirds—perhaps to compensate for the state’s lack of a bicameral upper house. See Mark Kruman,
Between Liberty and Authority: State Constitution Making in Revolutionary America
(1997), 52, 149. This unusually high quorum rule created incentives for minority lawmakers to game the system by boycotting the assembly; in response, majority lawmakers resorted to aggressive procedures to enforce the basic republican principle of majority rule. For a discussion of analogous issues raised by modern Senate filibuster practices and the threatened use by Senate majorities of a majority-rule “nuclear option” to curtail these antimajoritarian practices, see Chapter 9. In recent years, similar quorum-breaking tactics and forcible majoritarian countertactics occurred in Texas in 2003 and in Wisconsin and Indiana in early 2011.

11
  
Storing’s Anti-Fed
., 3:150.

12
  Va. Const. (1776), Declaration of Rights, secs. 2–3 (emphasis added). For citations to and discussion of counterpart provisions in other Revolution-era state constitutions, see Akhil Reed Amar, “The Consent of the Governed: Constitutional Amendment Outside Article V,”
Columbia LR
94 (1994): 457, 477–481.

13
  A few quotations on the Federalist side: “[T]he Constitution of a particular State may be altered by a majority of the people of the State.”
Farrand’s Records
, 2:92 (Morris). The “fundamental maxim of republican government…requires that the sense of the majority should prevail” and the federal Constitution’s republican-government clause “could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished.”
Federalist
Nos. 22, 21 (Hamilton/Publius). “[T]he majority in each State must bind the minority” in framing a Constitution. “Were [the federal Constitution] wholly national, the supreme and ultimate authority would reside in the
majority
of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.”
Federalist
No. 39 (Madison/Publius). “As to the people, however, in whom sovereign power resides,…[f]rom their authority the constitution originates.…If so; can it be doubted, that they have the right likewise to change it? A majority of the society is sufficient for this purpose.” Robert Green McCloskey, ed.,
The Works of James Wilson
(1967), 1:304 (1790 Lectures on Law). A few quotations on the Anti-Federalist side: “It will not be denied, that the people have a right to change the government when the majority chuse it, if not restrained by some existing compact [i.e., treaty].” Letters from the Federal Farmer (XVII) in
Storing’s Anti.-Fed
., 2:336. “‘A majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish’ [government].…This, sir, is the language of democracy—that a majority
of the community have a right to alter government when found to be oppressive.…We now act under a happy system, which says that a majority may alter government when necessary.”
Elliot’s Debates
, 3:50, 595 (Patrick Henry, quoting in part the Virginia Declaration of Rights authored by George Mason).

14
  
Elliot’s Debates
, 2:495.

15
  For a list of thirty-four conventions held prior to 1917 in eighteen states whose constitutions did not expressly authorize such conventions, see Roger Sherman Hoar,
Constitutional Conventions: Their Nature, Powers, and Limitations
(1917), 39–40. See also Ackerman,
We the People
, 80 (“On sixteen occasions before the Civil War, state legislatures refused to read [state constitutional] silence to imply exclusivity”). By the end of the twentieth century, “only one state [New Hampshire] required a supermajority of voters [two-thirds, to be specific] to approve amendments.” John J. Dinan,
The American State Constitutional Tradition
(2009), 57–58, 312 n. 115. Among the other states, simple majority rule typically prevailed whenever a proposed constitutional amendment was submitted to the electorate, with most states requiring merely that the proposed amendment receive more yes votes than no votes; five states—Hawaii, Illinois, Minnesota, Tennessee, and Wyoming—generally required an absolute majority of all votes cast in that particular election (thus treating any voter who showed up on election day and who weighed in on other ballot contests, but left blank the amendment-proposal section of the ballot, as if he had explicitly voted no). Ibid. For discussion of the notably inclusive suffrage and delegate-eligibility rules that operated federally in 1787–1788—rules nowhere specified by the text of the written Constitution, but a dramatic feature of its actual enactment—see Amar,
ACAB
, 5–7, 308–311. For discussion of how later state constitutional revisions have often been enacted via especially inclusive elections that widened preexisting suffrage rules, see Hoar,
Constitutional Conventions
, 205–212. For a different account of the “birth logic” of the Constitution itself—the procedures and protocols of the Constitution’s enactment—and the proper legal implications of this birth logic, see Lawrence G. Sager,
Justice in Plainclothes
(2004), 161–193.

16
  
Farrand’s Records
, 2:665 (Convention resolution of Sept. 17, 1789).

17
  Cf. Laurence H. Tribe,
The Invisible Constitution
(2008), 6–7 (“[N]othing in the visible text can tell us that what we are reading really
is
the Constitution, rather than an incomplete or otherwise inaccurate facsimile.…[I]t’s the
invisible
Constitution that tells us what text to accept as the
visible
Constitution of the United States.”). See also ibid., 149–154.

18
  
Farrand’s Records
, 2:633–634 (McHenry); ibid., 3:81 (Washington).

19
  For signing-ceremony details and qualifications, see Amar,
ACAB
, 536 n. 74. The parchment’s engrosser was a Philadelphia clerk named Jacob Shallus—a fact not widely known at the Founding.

20
  
JCC
, 33:549. Unlike some other printed versions floating around in mid-September, both the September 18 Convention print and the September 28 congressional print used notably larger lettering for the Preamble than for the rest of the document. Unlike the
engrossed parchment, both the Convention and the congressional prints capitalized the first word of Article I, section 1 (“ALL”), consistently abbreviated and italicized each section caption as “
Sect
.” and hyphenated “New-Hampshire,” “Rhode-Island,” “New-York,” “New-Jersey,” “North-Carolina,” and “South-Carolina” in the third paragraph of Article I, section 2.

21
  Senate Document (S. Doc. hereafter) No. 87-49, 59 n. 32 (July 17, 1961) (historical notes by Denys P. Myers). These ratification instruments are reproduced in
Documentary History of the Constitution of the United States
(1894), 2:24–160, 174–203, 266–320.

22
  See Francis Childs and John Swaine, eds.,
Acts Passed at a Congress of the United States, Begun and Held at the City of New-York, on Wednesday the Fourth of March in the Year M, DCC, LXXXIX
(1789), iii (emphasis added) (quoting resolution of July 6, 1789); ibid., i.

23
  S. Doc. No. 87-49, 89, 60, 49. This document was based on the research of Denys P. Myers, a former State Department official who carefully examined historical records after the department received an inquiry from a foreign government for an “official” copy of the Constitution of the United States.

24
  Ibid., 53 & n. 17, 89.

25
  Ibid., 61.

26
  Ibid., 54. See also ibid., 49, 91–92.

27
  References to the particular physical document that was under consideration—that is, the September 28 print sent by the Confederation Congress—were especially thick in the closing days of the Virginia ratifying convention, where both Federalists and Anti-Federalists repeatedly conjured up the same imagery. See, e.g.,
Elliot’s Debates
, 3:577 (Henry) (“that paper before you”); 583 (Madison) (“the declaration on that paper”); 584 (Mason) (“the paper before you”); 586 (Henry Lee) (“the paper on your table”), 618 (Madison) (“the paper on the table”); 628 (Harrison) (“that paper on your table”); 633, 636 (Innes) (“the paper on the table”); 639 (Tyler) (“that paper’); 651 (Henry) (“the paper on the table”). For a similar invocation by the president of the ratifying convention at the outset, see ibid., 38 (Pendleton) (“the paper on your table”).

28
  Of the nine states that included a transcript of the text being ratified in their formal instruments of ratification, three—Pennsylvania, New Jersey, and Maryland—caught and corrected the “inferior court” typo.
Documentary History of the Constitution
, 2:39, 57, 117. The other six—Georgia, South Carolina, Virginia, New York, North Carolina, and Rhode Island—did not. Ibid., 77, 135, 157, 185, 287, 304.

29
  Act of Nov. 13, 2002, Pub. L. 107-293, 116 Stat. 2057, 2060.

30
  Both Article I, section 9, and Article V make explicit reference to “the Year one thousand eight hundred and eight”—the year when Congress was first allowed to prohibit the international slave trade (although the document scrupulously avoided the word “slave” itself in these two passages, using euphemism here as elsewhere).

31
  Other language in the parchment directly below Article VII and above the autographs was not reprinted in the September 28 print. This language, which appears on the parchment directly alongside the “Year of our Lord” sentence, catalogs various earlier places
in the parchment where the scrivener had made handwritten corrections and interlineations. The September 28 print obviously did not need to, and thus did not, include any of this parchment language. Rather, the printer simply made all the noted corrections in the initial typesetting, with no interlineations or erasures.

32
  For a brief survey of some of the written Constitution’s most notable references to itself, see the opening paragraphs of Chapter 5.

33
  
Farrand’s Records
, 2:665–667.

34
  The five states that omitted the attestation and signature section were New Jersey, Maryland, South Carolina, Virginia, and North Carolina. See
Documentary History of the Constitution
, 2:60–61 121, 138, 160, 290. Four states included the attestation and signatures in their ratification instruments: Pennsylvania, Georgia, New York, and Rhode Island. See ibid., 43–44, 81–82, 189–190, 307–309.

35
  See
Elliot’s Debates
, 1:319 (Delaware), 319–320 (Pennsylvania), 321 (New Jersey), 324 (Georgia), 325 (South Carolina), 329 (New York), 337 (Rhode Island). See also ibid., 321 (Connecticut) (“A.D. 1788”), 323 (Massachusetts) (“Anno Domini 1788”). The remaining states were Maryland, New Hampshire, Virginia, and North Carolina.

36
  On Blackstone, see Chapter 1, text accompanying n. 8.

37
  For state constitutions, see Amar,
ACAB
, 557 n. 2 (quoting Revolution-era constitutional provisions of Pennsylvania, Delaware, Georgia, Massachusetts, and New Hampshire, and neglecting to mention S.C. Const. [1778], art. XXXVI [“So help me God”]). Although some revisionists have recently challenged the traditional view that Washington solemnly uttered the phrase “so help me God” at his first inauguration, it is undeniable that religion and religiosity pervaded various other parts of this event. Multiple eyewitness accounts, some penned shortly after the inauguration, noted that Washington kissed the Bible on which he swore his oath. After the oath came his Inaugural Address, nearly a third of which was devoted to America’s relationship to the Almighty.
Annals
, 1:27–29 (April 30, 1789). Washington and other dignitaries then proceeded by prearrangement to a religious service at Saint Paul’s Chapel, where prayers were delivered by Senate Chaplain Samuel Provost, an Episcopal bishop. Ibid., 25–29 (April 27–50, 1789). Revisionists have also argued that the phrase “so help me God” was not used at a presidential swearing-in until the late nineteenth century, and that only in the twentieth century did the phrase become a typical part of presidential inaugurations. There is widespread agreement that the vast majority of inaugurations have used the Bible and that many have featured Bible-kissing and/or other religious trappings.

38
  On the signing ceremony, note that George Read signed by proxy for John Dickinson. See
Farrand’s Records
, 3:587.