Sunday, December 19, 2010

Conditional Ratification VII: "The terms of the Constitution import a perpetual compact between the different states"

Several years ago I wrote a series of posts on the New York convention that ratified the United States Constitution at the end of July 1788. Very briefly, some members of the anti-Federalist majority had indicated a willingness to consent to ratification provided that a federal convention was held within a period of years thereafter to consider amendments. On Saturday July 19, 1788 a desperate Alexander Hamilton wrote from the convention in Poughkeepsie to James Madison, then in New York City, asking whether, as a last resort, the proponents of the Constitution could agree to such a conditional ratification:
I thank you My Dear Sir for yours by the post. Yesterday I communicated to [William] Duer our situation which I presume he will have communicated to you. It remains exactly the same, no further question having been taken. I fear the footing mentioned in my letter to Duer is the best upon which it can be placed; but every thing possible will yet be attempted to bring the party from that stand to an unqualified ratification.

Let me know your idea of the possibility of our being received on that plan. You will understand that the only qualification will be the reservation of a right to recede in case our amendments have not been decided upon in one of the modes pointed out in the Constitution within a certain number of years, perhaps five or seven.

If this can in the first instance be admitted as a ratification I do not fear any further consequences. Congress will I presume recommend certain amendments to render the structure of the government more secure. This will satisfy the more considerate and honest opposers of the constitution, and with the aid of time will break up the party.
Madison responded immediately: absolutely not:
N. York Sunday Evening [July 20, 1788]

My dear Sir

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe.

My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan.

Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the new Congress by virtue of the power to admit new States, may be able & disposed to do in such a case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more. Know my fervent wishes for your success & happiness.

Js: Madison

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.
In my earlier posts, I explained that secondary sources reported that Hamilton had read Madison's letter to the convention in support of his argument that conditional ratification was ineffective. I am adding this post because I have now found online the contemporaneous report of that event.

On Wednesday July 23, 1788 the New York convention had by a narrow margin (31-29) deleted the phrase “Upon Condition” and substituted “in full Confidence.” On Thursday July 24, 1788, however, John Lansing moved an amendment that would have re-introduced a form of conditional ratification. Lansing proposed to adopt the Constitution “with right to withdraw in [blank] years if the amend[ment]s [proposed by the New York convention] are not submitted to a convention in the mode prescribed &tc.”

Hamilton spoke in opposition to Lansing's motion. Quoting from Madison's letter to him, Hamilton opined that the Constitution implied "a perpetual compact between the different states" and that the proposed ratification would therefore be ineffective:
Ham[ilton] – Was in hopes this Morning of Unanimity when this Motion was first mentioned. Thot more favourably of it than the other one but since thinks otherwise. Has taken advice with men of character – they think it will not due. Proposed to read a Letter – reads it – supposes this adoption – conditional – and would viciate the business &tc. Himself wrote favourably for it. The terms of the Constitution import a perpetual compact between the different states; this certainly is not. Treaties and engagements with foreign nations are perpetual – this cannot be under this adoption. The oath to be taken stands in the way. States & men are averse to inequality. They fully bound and we partially. Should we risk so much on so little? Motives of expediency too much relied on. If they do not accept us will they not sooner have a new convenn [sic] than accept us so. Is it worth the jeopardy by which it must be obtained? Is it not of importance that we join immediately to procure a convenn? The obser[vatio]n of Lans[in]g does not meet the objec[tio]n – as they will contemplate wheather [sic] this is a ratific[atio]n. If they have any doubt, they will ap[poin]t Cong[res]s to meet on certain federal ground [and not in New York]. Interest of some states against us. If they are driven away by us the people will be dissatisfied &tc. We have done everything which possibly can insure our wish – this we shall loose [sic] by a second state convention. We shall not be represented in Congress & this for no real end. Moves to have the question postponed & that a circular letter be wrote.
Yesterday [July 24] Mr. Lansing moved to annex Mr. [Melancton] Smith's last proposition to the ratification, or the one which proposes to adopt with a reservation of a right to withdraw; then Mr. [John] Jay, and after him Mr. Hamilton, rose and declared that the reservation could answer no good purpose in itself – that it implied a distrust of the other States – that it would awaken their pride and other passions unfriendly to the object of amendments; but what was decisive against it, it was inconsistent with the Constitution, and was no ratification.

Mr. Hamilton produced and read part of a letter from a gentleman of high public distinction, containing in explicit terms his opinion that the reservation would amount to a conditional ratification, and would not be received by Congress. Mr. [James] Duane and the Chancellor [Robert R. Livingston] both declared their opinion to the same effect, and they all concurred in expressing an anxious wish, that since the House had proceeded so far to an accomodation, they might now conclude the business with harmony and to the satisfaction of both parties. Mr. Smith remained silent all the day; the questions was postponed till to-day.
Earlier posts on the New York Ratification Convention:

About the illustration, entitled The Looking Glass for 1787. A house divided against itself cannot stand. Mat. Chap. 13th verse 26, created by Amos Doolittle, published New Haven, CT 1787:
A satire touching on some of the major issues in Connecticut politics on the eve of the ratification of the U.S. Constitution. The two rival factions shown are the "Federals," who represented the trading interests and were for taxes on imports, and the "Antifederals," who represented agrarian interests and were more receptive to paper money issues. The two groups were also divided on the issue of commutation of military pensions. The artist here evidently sides with the Federals. Connecticut is symbolized by a wagon (top center) loaded with debts and paper money, the weight of which causes it to sink slowly into the mud. Its driver warns, "Gentlemen this Machine is deep in the mire and you are divided as to its releaf--" The wagon is pulled in opposite directions by two factions of the state's Council of Twelve. On the left under a beaming sun are five Federal councillors, who proclaim: "Pay Commutation," "Drive them to it," "I abhor the antifederal Faction," and "Comply with Congress." On the right the sky fills with angry storm clouds spewing thunderbolts, while the earth erupts in flames. Below six of the council's Antifederal members pull on their chain crying: "Tax Luxury," "the People are oprest," "curses on to Foederal Govermt.," "Success to Shays" (an allusion to charges that they sympathized with agrarian radicals led by Daniel Shay in Massachusetts), and "Curse Independence." The seventh Antifederal on the council, William Williams (here labeled with his press pseudonym "Agricola"), also appears. He stands defecating at right, with his trousers undone and a small animal--probably a skunk--between his feet. Williams remarks, "I fear & dread the Ides of May" (i.e. the May 15 elections to the upper house). The skunk sprays toward Williams's enemy Samuel Holden Parsons (far right, identified as "S--H--P"), president of the state's Society of the Cincinnati. Parsons, also obscenely bending over, sprays back saying, "A good Shot." In the left middleground, "Cato," a pseudonymous contributor to the "New Haven Gazette," comments, "I despise your Copper" to the man beside him, who holds a Connecticut coin and mutters, "Cur's commutation." In the center a farmer with a plough, rake, and bottle complains, "Takes all to pay taxes." In the left foreground three members of the Connecticut Wits stand on the Mount "Parnassus," and read from a scroll "American Antiquities" (excerpts from their "Anarchiad" published in Connecticut newspapers beginning in October 1786). To the right is the Connecticut shoreline and the buildings of Manhattan, the latter threatened by thunderbolts from the upper right. Three merchant vessels ply a body of water below, "From Connecticut to New York paying L40000 per annum Impost." In the left corner a tiny figure sits at a w7riting desk, reading a paper with the verse: "Tweedles Studdy/as I sit plodding by my taper." This piece alludes to a satirical poem by "Trustless Fox" in the "New Haven Gazette" of November 23, 1786. Its opening lines are: "As I sat plodding by my taper, I wreaked a glance into the paper . . . ." The interpretation given above is largely based on the commentary of a Sotheby's cataloger (see reference below). That writer suggests that "Trustless Fox" and the designer of "The Looking Glass for 1787" may have been one and the same, based on the references to material in the New Haven Press.

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