© By D. Jonathan White
It has been said that every religious heresy proceeds from a misunderstanding of the nature of God. Something similar could be said about constitutional heresies proceeding from a misunderstanding of the nature of the Union. Whether the Union was older than the states or was a matter of debate in the period before the Civil War and since.
Abraham Lincoln attempted to address this in his first inaugural address in March 1861. In discussing the inadmissibility of secession, Lincoln noted “The Union is much older than the Constitution.”1 Later that summer, in his address to Congress, the new President said, “The Union is older than any of the States, and in fact it created them as States. … Not one of them ever had a State constitution independent of the Union.”2 Of course, this is demonstrably false. Virginia, for example, in her constitution of 29 June 1776, declared that “the government of this country, as formerly exercised under the crown of Great Britain, is TOTALLY DISSOLVED.”3 Virginia’s decision was prior to, and independent of, the other colonies. Virginia had no way to force the other colonies to join her in her declaration, although she obviously hoped they would join her. If, however, the other colonies chose not to declare their independence Virginia would have been on her own. The fact remains, however, that Virginia was independent before the other colonies. Perhaps the Lincoln was unaware of Virginia’s history, or perhaps he was only speaking polemically.
More recently, Harry Jaffa has continued the tradition of misconception of the nature of the union. At debate in 2002 at the Independent Institute, Jaffa said
[The states] declared independence and union together, and there was never any time in which any state acted on the international sphere, having diplomatic relations—and the Constitution itself forbids each state to have any diplomatic action. They could not act independently of the other states in the international arena.4
In his work, A New Birth of Freedom, Jaffa argues that no state ever acted independently of the others.5 This inquiry will examine the veracity of that assertion.
The stories of the states of North Carolina and Rhode Island, the “Wayward Sisters,”6 provide much better examples to explore the question of the status of non-ratifying states during the transition from a union under the Article of Confederation and one under the Constitution. The Wayward Sisters have something to teach us of the nature of the Union itself.
The people of the states were dissatisfied with the Articles of Confederation and, after the abortive attempt to draft a replacement document at Annapolis in 1786, representatives from the several states assembled in Philadelphia in the summer of 1787. The only exception was Rhode Island, the people of which seem to have been less dissatisfied than their compatriots. This was a bit of a problem, since the Articles of Confederation required unanimity for any amendment to take effect.7 The absence of Rhode Island was not a good omen for the success of any arrangement that the Philadelphia Convention might produce. The members got to work, however, and hoped for the best.
The Committee on Style drafted the Constitution, with key blanks for the Committee of the Whole to debate, vote on and fill in. When the Committee of the Whole reached Article VII, the draft read, “The ratifications of the Conventions of ___ States shall be sufficient for organizing this Constitution." Federalists James Wilson of Pennsylvania and Edmund Randolph of Virginia suggested seven, eight or nine, the latter “being a respectable majority of the whole, and being a number made familiar by the constitution of the existing Congress.”8 The more conservative members, such as Roger Sherman of Connecticut, John Dickinson of Delaware, and Daniel Carrol of Maryland reminded the Committee that amending the Articles of Confederation required unanimity among the states.
At this, the Federalists lost their patience. Pierce Butler “revolted at the idea, that one or two States should restrain the rest from consulting their safety” and Wilson argued that “they must consult the original powers of society. The House on fire must be extinguished, without a scrupulous regard to ordinary rights.”9 Madison suggested that if seven, eight, or nine states were required, the Constitution as it stands might be put in force over the whole body of the people, tho' less than a majority of them should ratify it.” Wilson immediately countered that “as the Constitution stands, the States only which ratify can be bound.” In the end, the Convention filled the blank with “nine.”10
So, what came of this exchange? First, the urgency of the case caused the members of the Philadelphia Convention to jettison the Articles of Confederation’s requirement for unanimity. They all knew that Rhode Island was so disinterested in reforming the Articles of Confederation that she refused to even send representatives to Philadelphia. But this did not prevent the others from “referring to the original powers of society” and “consulting their safety.” Next, they established that only those states which wanted into the new arrangement would be bound by it. In other words, given a choice between keeping the Union together as a unit, or allowing the people of each state to have they own decision, they chose the latter. They were willing to break up the Union if necessary in order to get the new Constitution adopted by those who wanted reform.
The Philadelphia Convention reported to Congress in September 1787. Congress sent the Constitution to the states for their approval or rejection. Delaware, Pennsylvania, and New Jersey adopted the Constitution in December. They were followed by Georgia, Connecticut, Massachusetts, Maryland and South Carolina. When New Hampshire ratified in June 1788, that made nine and the Constitution would go into effect between the ratifying states. The Final Four were Virginia, New York, North Carolina and Rhode Island.
The Anti-Federalist opposition, while never a formal party with a common plan of action, had frequently rallied around the idea of rejecting the Constitution and drawing up another, better one. Federalists in the state conventions, especially those like James Madison, James Wilson and Charles Cotesworth Pinckney, who had seen first hand at Philadelphia how difficult it was to get this Constitution drafted, rejected this reasoning. They worked to get this one ratified and then, if changes were needed, suggested the amendment procedure.
With the ratification of New Hampshire, Anti-Federalists were faced with two stark choices. They could ratify in the hope that amendments would fix the flaws they saw in the Constitution or they could reject it and know that their rejection would mean withdrawal from the Union. In every ratification instrument of the final four, Federalists agreed to append to the ratification instruments a set of proposed constitutional amendments.11 In every one of these cases, the final vote on ratification had been close.12 Appending amendments had won over enough fence-sitters to secure adoption of the Constitution.
The ratification of New Hampshire had set in motion the machinery that would activate the Constitution in March 1789. The subsequent ratifications of Virginia and New York carried little impact for our purposes here, since the new government under the Constitution would not be elected until the winter of 1788-9 and would not sit until March 1789. The cases of North Carolina and Rhode Island, however, merit some attention. North Carolina’s Convention had considered the Constitution, and declined to ratify it by a margin of 183-83.13 In March 1788, the voters of Rhode Island had voted overwhelmingly against even holding a State Convention to consider the new Constitution.14
Meanwhile, the old Union ground slowly to a halt. The Continental Congress died in a manner similar to a boring dinner party. After enacting ordinances for the transition to the new government under the Constitution, the members slowly drifted away. The last official business was transacted on October 10th, 1788.15 Thereafter, a quorum was not present. November 3rd was the last date on which a North Carolina representative was present, and February 12th, 1789 was the last time a Rhode Island representative sat.16
The new Congress under the Constitution had been directed to assemble on March 4th, but it wasn’t until April 1st that a quorum was present. President Washington did not turn up for his inauguration until April 30th.17 During this time, it would seem that North Carolina and Rhode Island were on their own, as independent states. Their votes are not counted in the electoral college of 1788. They elected no representatives to the new bicameral Congress.
The correspondence from the period supports this interpretation. A letter from Edenton North Carolina to the editor of the North Carolina State Gazette dated May 4th 1789, stated “Though we are not in the union, we are not the less attentive to all the proceedings of Congress. Some of the regulations proposed in the new revenue bill might be of use to the commerce of this State if we formed part of the Union; as matters are circumstanced, they must injure us greatly.”18 On May 10th, 1789, the Governor and State Council of North Carolina sent President Washington a congratulatory letter after his inauguration. In the letter, Governor Johnston wrote, “though this State be not yet a member of the Union under the new Form of Government, we look forward with the pleasing hope of its shortly becoming such.”19
Washington responded in kind. Since the North Carolina legislature had just called for a second state convention to consider the Constitution, President Washington wrote to Gov. Johnston, “I most earnestly implore the divine benediction and guidance in the Counsels, which are shortly to be taken by their Delegates on the subject of the most momentous consequence, I mean the political relation which is to subsist hereafter between the State of North Carolina and the States now in union under the new general government.”20 Obviously, Washington and Gov. Johnston both considered that North Carolina was not in the Union prior to ratification.
As for Rhode Island, Washington’s correspondence also shows that he considered the little state to be out of the Union. In a letter to Gouvernor Morris in October 1789, Washington wrote, “it is hoped … that the non-acceding States will very soon become members of the Union. No doubt is entertained of North Carolina; nor would there be any of Rhode Island, had not the majority of those people bid adieu, long since, to every principle of honor, common sense, and honesty.”21 Obviously, Washington saw Rhode Island as being out of the Union in October 1789, although he did not care much for the conduct of the people of that state.
John Collins, the Governor of Rhode Island also wrote to Washington in September 1789 that “although they (the people of the state of Rhode Island) now stand as it were alone, they have not separated themselves or departed from the principles of that confederation, which was formed by the sister States in their struggle for freedom, and in the hour of danger.” Further, Collins wrote, “we earnestly look for the time, when they may with clearness and safety be again united with their sister States.” Rhode Island, Collins believed, may yet hold a state convention to consider the Constitution and join the Union. In the meantime, Collins hoped, “we are induced to hope, that we shall not be altogether considered as foreigners, having no particular affinity or connexion with the United States; but that trade and commerce, upon which the prosperity of this State much depends, will be preserved as free and open between this and the United States, as our different situations at present can possibly admit.”22 Thus, like North Carolina, both Washington and the governor proceeded on the assumption that Rhode Island was no longer in the Union.
The status of the North Carolina and Rhode Island is also confirmed in statutes passed in the first Congress. The Federal Judiciary Act of 1789 established Federal courts subordinate to the Supreme Court of the United States in thirteen districts, one per each of the eleven states at that time, except Virginia and Massachusetts, which had two judicial districts (one each for Maine and Kentucky).23 In other words, the Judiciary Act of 1789 did not apply to the outliers, North Carolina and Rhode Island. Once the outliers joined the Union, the Judiciary Act had to be amended to create a judicial district for them. This was done for North Carolina, and Rhode Island in June 1790.24
Ultimately, more significant, both in its effects on the states in the Union and without, and more influential in getting the outliers to join, were the series of laws regulating trade. On July 20th, 1789, Congress set the Federal tonnage duty, which charged American-made, American-owned ships at 5 cents per ton American-made but foreign owned ships a duty of 30 cents per ton, and foreign-made, foreign-owned ships 50 cents per ton.25 This tax was to take effect on September 1st, 1789, and no exception was initially made for ships owned by citizens of Rhode Island and North Carolina. If these states were somehow in the Union, this law would have been unconstitutional. On September 16th, however, Congress extended to citizens of North Carolina and Rhode Island the same privileges as American citizens, at least until January 15th, 1790.26
On July 31st, 1789, Congress passed “An Act to Regulate the Collection of Duties.” This law defined the ports of entry into the United States, established the customs duties, and the procedures for their collection. Goods imported into the United States through Rhode Island and North Carolina were taxed as if they were imported directly from overseas. “Goods, wares and merchandise” made in Rhode Island and North Carolina were exempt from duty, as if these two states were in the Union.27
Although the two outlying states were recognized as out of the Union, Congress had specifically exempted the citizens of these two states from some (but not all) of the liabilities of no longer being citizens of the United States. Congress had suspended the economic measures to maintain an extended hand of friendship to their former countrymen, and to avoid antagonizing them as they considered the political and economic benefits of joining the Union.
They need not have bothered in the case of North Carolina. The major objections of Old North State’s Anti-Federalists in the summer of 1788 had been the lack of a Bill of Rights. By the summer of 1789, Congress had adopted such a Bill of Rights and sent it to the States for ratification. This fact, plus the fact that someone as trusted and well-respected as George Washington had been elected President, removed Anti-Federalist objections. The second North Carolina Convention assembled in Fayetteville in November 1789, ratified the Constitution and joined the Union. Congress moved quickly to economically embrace the newest member of the Union in February 1790 by retroactively amending tonnage, duty and navigation acts to read as if North Carolina had been a member when these acts had originally passed.28
Rhode Island would prove a tougher case. Being the smallest state both in population and territory, Rhode Islanders had been concerned that their interests would be ignored and the state trampled in the press of the larger states. The issue of soft money was also one that led Rhode Island Anti-Federalists to oppose any steps toward ratification of the new Constitution.
Even though Thomas Jefferson referred to Rhode Island as the little “vaut rien,” the little worthless thing, many Americans wished to see the state join the Union.29 On June 5th, 1789, when Egbert Benson of New York proposed the Congress should invite Rhode Island to convene a Convention to consider ratification of the US Constitution. Benson’s resolution read:
The Congress of the United States do resolve and declare it to be their most earnest desire, that the Legislatures of the State of Rhode Island and Providence Plantations, do recommend to the people of that State to choose delegates to meet in convention, and to whom the constitution of the United States is to be submitted, conformably to the unanimous resolution of the United States in Congress assembled of the 28th of September 1787.
In subsequent debate, later that day, John Page said he “doubt[ed] the propriety of interfering in the business.”30 James Madison thought it improper to even invite Rhode Island once again, "on an occasion where free agency ought to be employed. . . .Are gentlemen afraid to leave them to their own unbiased judgment? It will demonstrate the goodness of the constitution, if it be adopted upon mature consideration, without any aid but its own intrinsic value.”31
To Madison’s argument, Fisher Ames said:
I should be glad to know if any gentleman considers the state of Rhode Island dissevered from the Union; a maritime State, situated in the most convenient manner for the purposes of smuggling, and defrauding our revenue. Surely a moment's reflection will induce the House to take measures to secure this object. Do gentlemen imagine that state will join the union? If they do, what is the injury arising from the adoption of the resolution intended to be submitted to the committee (Mr. Benson's)? Is there any impropriety in desiring them (RI's citizens) to consider a question which they have not yet decided? It has been suggested, by an honorable gentlemen (Madison), that this desire will operate as a demand. If a wish of Congress can bring them into the Union, why should we decline to express such a wish? It has been said, that Rhode Island has never called a convention; the other States have. Then why should we decline to request them to do what every other State has been called upon to perform? The gentlemen from Virginia seems afraid we should sacrifice our dignity by making this request. Let it be remembered, Great Britain lost her colonies by sacrificing her interest to her dignity. We ought, therefore, to be careful how we act upon ideas of this kind. There seems some disposition on that State to join her sister Sates in adopting the constitution. Then, why shall we decline encouraging that good spirit by approving the measure?
Alexander White of Virginia thought it best not to invite Rhode Island to assemble a convention to consider the Constitution of the United States, “because it was improper for the [Congress] to interfere in their deliberation. If they were disposed to adopt the constitution, it would be best to let them exercise their judgment, independent of any influence which a recommendation from Congress might have.”32
Congress decided to wait and not invite Rhode Island specifically to hold a state convention. The majority wanted to allow Rhode Islanders to see for themselves the benefits of the Union, and decide for themselves based on the relative benefits and liabilities of membership. This is an example of the tenderness of the Founders toward the feelings of former member states of the Union. Obviously, at this point in time, the Founders felt that the decision to be (or become) a member of the Union should be entirely up to the citizens of the state to consider, free from any outside interference.
Congress remained patient with the last holdout for a while. After North Carolina ratified the Constitution and joined the Union, Congress extended Rhode Island’s exemption to the revenue law until January 15th, 1790. On January 23rd, 1790, Rhode Island finally (and narrowly) voted to hold a Convention to consider ratifying the Constitution and joining the Union. One last time, Congress held out a hand of friendship. On February 23rd, Congress extended Rhode island’s exemption from the tariff law until “the first of April, and no longer.”33
Meanwhile, other economic factors would be developing in such a way as to force Rhode Island to join the Union. On January 14th, 1790, Alexander Hamilton presented to Congress his proposal that the Federal government assume the debt that the states had incurred in fighting the American Revolution. In Congress, there were supporters of the proposal (mainly Federalists) and detractors (mainly Madison and the Virginians). One side issue was what to do with Rhode Island’s share of the national debt: $27,000.34
In March, the Rhode Island Convention met, debated the Constitution, and adjourned without adopting it, but agreeing to meet again in May 24th in Newport.35 Congressional patience with Rhode Island grew thin. On May 11th, the US Senate debated a bill that would prohibit all commerce with Rhode Island and would authorize the President to present Rhode Island with her $27,000 share of the national debt incurred during the Revolution.36 Of course, if Rhode Island were still somehow part of the Union, this trade prohibition would have been unconstitutional.
The raising of the stakes also led to a rise in emotions in Congressional debates over the issue. There was no Senate journal at this time in which debates were recorded, so the best record we have is the private journal of Pennsylvania Senator William Maclay. On May 11th 1790, Maclay recorded the following in his diary:
The Rhode Island resolutions were taken up. I was twice up against these resolutions. They admitted on all hands that Rhode Island was independent, and did not deny that the measures now taken were meant to force her into adoption of the Constitution of the United States; and founded their arguments on our strength and her weakness. I could not help telling them plainly that this was playing the tyrant to all intents and purposes.37
The Rhode Island Resolutions came up for a third reading on May 18th. On this occasion, William Maclay noted:
Mr. Lee opposed it in a long and sensible speech. Butler blustered away, but in a loose and desultory manner. King, Elsworth, Strong, and Izard spouted out for it. It was long before there was a slack. As this was to be the last reading, and as the yeas and nays would, in my opinion, be called, I took what I thought was new ground. The Bill had been assigned to various motives, self-defense, self-preservation, self-interest, etc. I began with observing that the Convention of Rhode Island met in a week; that the design of this bill was evidently to impress the people of Rhode Island with terror. It was an application to their fears, hoping to obtain form them an adoption of the Constitution, a thing despaired of from their own free-will or their judgment. It was meant to be used in the same way that a robber does a dagger or a highwayman a pistol, and to obtain the end desired by putting the party in fear; that where independence was the property of both sides, no end whatever could justify the use of such means in the aggressors. I therefore was against the bill in every point of view, etc. The debate was long. I was up a second time, but to no avail. The question was put at about three o'clock and carried.
The bill went to the House for debate, but the Senate’s message to Rhode Island was clear: join the Union or pay the consequences. On May 29th, the Rhode Island convention voted, narrowly to ratify, 34-32.
On one level, this inquiry is about the functioning of self-determination, and creation of a federal republic despite the centrifugal and centripetal forces of politics. Obviously, the Founders wanted the people of the states to have control over the decision to join the Union or not. Initially, many in Congress were opposed to even issuing a second invitation to Rhode Island to hold a convention to consider ratification. Over time, however, this reluctance waned and Federalists managed to bring some substantial pressure to bear on Rhode Islanders. Ultimately, however, the choice was up to the people of Rhode Island, just as it had been up to the people of every state. It would be a grave mistake to confuse eventual unanimity among the states for inevitable unanimity.
Should we care what the Founders thought? We should for two reasons. First, the people debating the Constitution were well aware that future generations would scrutinize their deliberations, and that they therefore had to be very careful what they said and did.39 Second, as the Founders themselves acknowledged at the time, the Constitution had no meaning whatsoever until the people of the state conventions ratified it. Governor Edmund Randolph of Virginia, in the Virginia Convention said, “Suppose the paper on your table dropped from one of the planets; the people found it, and sent us here to consider whether it was proper for their adoption; must we not obey them?”40 Madison, in discussing the meaning of the Constitution, wrote:
As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the [Philadelphia] Convention can have no authoritative character…[T]he legitimate meanings of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be…in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses.41
The story of the Wayward Sisters helps us put an appropriate emphasis where the Founders intended: on the State Conventions.
Further, the story of the Wayward Sisters has some relevance of this to some contemporary debate. If, as the record shows, the non-ratifying states were independent until they did ratify, then a main support for Harry Jaffa’s apotheosis of Abraham Lincoln is fatally undermined. Lincoln was not courageously maintaining a sacred Union, but actually was ruthlessly violating the Founders’ principles about the consent of the governed in the question of the membership in the Union.
The record illustrates two important aspects of the ratification period. First, the story of the Wayward Sisters shows conclusively that everyone involved agreed that non-ratifying states were not in the Union. There was no single bit of evidence that showed that anyone in a position of authority believed that these two states were somehow in the Union between April 1789 and their respective ratifications. Second, it demonstrates the extreme tenderness of the Founders to the feelings of the peoples of the non-ratifying states. They were reluctant to even invite them a second time to hold a convention to consider the Constitution. Page and Madison felt it should be adopted only on its own merits, not any threat of punishment or promise of benefit from the United States. Membership in the Union, as far as the Founders were concerned, was up to the people of the respective states. President Lincoln was simply incorrect in his pronouncements that the Union was older than the states. Likewise, Professor Harry Jaffa is equally incorrect in conclusions about the status of the non-ratifying states prior to their ratifications. They were indeed independent of the Union, and, more importantly, were seen as such by the political leaders of these states and the Federal government at the time.
Lastly, this is not some esoteric academic argument. Should the United States hold another Constitutional Convention in the future, and adopt an article similar to the current Article VII, the status of non-ratifying states would be as momentous as it was in 1789-1790. If the same proportion were used, then the new Constitution would go into effect when thirty-five states ratified, between those thirty-five, leaving fifteen states out of the Union. Having a proper understanding of what happened the last time the United States redrafted its constitution could be extremely consequential.42 The Wayward Sisters have shown the way, and perhaps, in the debate over some future Constitution, being one of the future Wayward Sisters would be a way to leave the Union peacefully. This would apply, however, only if we accurately remember the cases of North Carolina and Rhode Island between 1789 and 1790.
5 Harry Jaffa, A New Birth of Freedom, (NY: Rowman & Littlefield Publishers, 2000), 256.
20 Sol Bloom, History of the Formulation of the Union under the Constitution, (NY: Greenwood Press, 1968), 479. Emphasis added.
22 Jared Sparks (ed.), Writings of George Washington, (Boston: Russell, Shattuck and Williams and Hillard, Gray and Co., 1836), vol. 10, 487-489. Emphasis added.
Lt. Col. (Retired) D. Jonathan White earned his Ph. D. at the University of Alabama and is currently a military history instructor at Virginia Tech University.