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An Economic Interpretation of the Constitution of the United States/Chapter IX

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Chapter IX
The popular Vote of the Constitution

In the adoption of the Constitution, says James Wilson, we have the gratifying spectacle of "a whole people exercising its first and greatest power - performing an act of sovereignty original and unlimited."[1] Without questioning the statement that for juristic purposes the Constitution may be viewed as an expression of the will of the whole people, a historical view of the matter requires an analysis of "the people" into its constituent elements. In other words, how many of "the people" favored the adoption of the Constitution, and how many opposed it?

At the very outset, it is necessary to recall that the question whether a constitutional Convention should be held was not submitted to popular vote, and that it was not specially passed upon by the electors in choosing the members of the legislatures which selected the delegates.[2]

In the second place, the Constitution was not submitted to popular ratification. The referendum was not unknown at that time, but it was not a fixed principle of American politics.[3] At all events, such a procedure does not seem to have crossed the minds of the members of the Convention, and long afterward, Marshall stated that ratification by state conventions was the only mode conceivable.[4] In view of the fact that there was no direct popular vote taken on the Constitution, it is therefore impossible to ascertain the exact number of "the people" who favored its adoption.

The voters, who took part in the selection of delegates to the ratifying conventions in the states, may be considered as having been divided into four elements: those who were consciously in favor of the Constitution, those who were just as consciously against it, those who were willing to leave the matter to the discretion of their elected representatives, and those who voted blindly.

The proportions which these four groups bear to one another cannot be determined, but certain facts may be brought out which will throw light on the great question: How many of the people favored the adoption of the Constitution?

The first fact to be noted in this examination is that a considerable proportion of the adult white male population was debarred from participating in the elections of delegates to the ratifying state conventions by the prevailing property qualifications on the suffrage. The determination of these suffrage qualifications was left to the state legislatures; and in general they adopted the property restrictions already imposed on voters for members of the lower branch of the state legislatures.

In New Hampshire the duly qualified voters for members of the lower house were authorized to vote for members of the convention, and those Tories and sympathizers with Great Britain who were excluded by law were also admitted for this special election.[5] In Massachusetts the voters were those "qualified by law to vote in the election of representatives."[6] In Connecticut, those "qualified by law to vote in town meetings" were enfranchised.[7] In New Jersey, those who were "entitled to vote for representatives in general assembly;" [8] and in Delaware, those "qualified by law to vote for Representatives to the General Assembly"[9] were empowered to vote for delegates to their respective conventions. In Pennsylvania, voters for members of the assembly selected the delegates to the convention.[10] In Maryland, voters for members of the lower house;[11] in Virginia, those possessing the "qualifications now established by law;"[12] in North Carolina, those entitled to vote for members of the House of Commons;[13] in South Carolina, those voting for members of the lower house; and in Georgia, those voting for members of the legislature (one branch) were admitted to participation in the election of delegates to their respective state conventions.[14]

In New York alone was the straight principle of manhood suffrage adopted in the election of delegates to the ratifying convention. Libby seems inclined to hold that this exception was made by the landed aristocracy in the state legislature because it was opposed to the Constitution and wished to use its semi-servile tenants in the elections; but this problem has not yet been worked out, and any final conclusion as to the "politics" of this move is at present mere guess-work.[15]

It is impossible to say just what proportion of the adult males twenty-one years of age was disfranchised by these qualifications. When it is remembered that only about 3 per cent of the population dwelt in towns of over 8000 inhabitants in 1790, and that freeholds were widely distributed, especially in New England, it will become apparent that nothing like the same proportion was disfranchised as would be today under similar qualifications. Dr. Jameson estimates that probably one-fifth of the adult males were shut out in Massachusetts,[16] and it would probably be safe to say that nowhere were more than one-third of the adult males disfranchised by the property qualifications.

Far more were disfranchised through apathy and lack of understanding of the significance of politics. It is a note- worthy fact that only a small proportion of the population entitled to vote took the trouble to go to the polls until the hot political contests of the Jeffersonian era. Where voting was viva voce at the town hall or the county seat, the journey to the polls and the delays at elections were very troublesome. At an election in Connecticut in 1775, only 3477 voters took part, out of a population of nearly 200,000, of whom 40,797 were males over twenty years of age. How many were disfranchised by the property qualifications and how many stayed away through indifference cannot be shown.[17]

Dr. Jameson, by most ingenious calculations, reaches the conclusion that in Massachusetts about 55,000 men in round numbers or about 16 or 17 per cent of the population were entitled to vote under the law. Assuming that 16 per cent were entitled to vote, he inquires into the number who actually exercised the franchise in the years from 1780 to 1790 in elections for governor; and his inquiry yields some remarkable results. To give his conclusions in his own words: "Something like three per cent [of the population, or about one-fifth or one-sixth of those entitled to vote] took part in the first election in the autumn of 1780. During the next six years the figures remain at about two per cent only. In 1784, only 7631 votes were cast in the whole state; in the spring of 1786 only a little over eight thousand. Then came Shays' Rebellion and the political excitement of that winter brings up the votes in the spring election of '87 to a figure nearly three times as high as in '86, and amounting to something between five and six per cent of the population. The political discussions of the next two winters respecting the new federal government keep the figure up to five per cent. Then it drops to something between three and four and there it remains until 1794.”[18]

For the purposes of a fine analysis of the economic forces in the ratifying process, it would be of the highest value to have the vote on delegates to the state conventions in each town and county throughout the whole country; but unfortunately no such figures are compiled and much of the original materials upon which the statistical tables could be based have doubtless disappeared.[19] Even such tables would be unsatisfactory because in several instances there were no contests and the issue of adoption or rejection of the Constitution was not squarely put before the voters.

In a few instances, however, the number of voters participating in the election of delegates to the state conventions has come down to us. In Boston, for example, where the fight was rather warm, and some 2700 men were entitled to vote, only 760 electors turned out to pass upon the momentous issue of the national Constitution - about half as many as voted in the next gubernatorial election.[20]

The treatises on the Constitution do not give any figures on the popular vote for delegates to the state convention in New York, but the following partial list taken from contemporary papers shows that in some of the counties the vote ran to almost 10 per cent of the population, while in others the percentage of the electorate participating (even under the universal manhood suffrage provision) was about that in Massachusetts, namely, 5 per cent. It will be noted also that the distribution of representation in the convention was grossly unequal and decidedly unfavorable to the Anti-Federalists. The classification into Federalist and Anti-Federalist is based upon the election returns as reported in the contemporary press, not on the vote in the state-ratifying convention.

FEDERALIST

Population 1790 Highest Federalist Vote Highest Antifederalist Vote Delegates in Convention[21] Ratio of Delegates to Population
New York County 33,131 2735[22] 134 9 3,681
Westchester 23,941 694[23] 399 6 3,990
Queens[24] 16,014 4 4,003
Kings 4,495 2 2,247
Richmond 3,385 2 1,917
23

ANTIFEDERALIST

Population 1790 Highest Federalist Vote Highest Antifederalist Vote Delegates in Convention Ratio of Delegates to Population
Albany 75,921 2627[25] 4681 7 10,845
Ulster 79,397 68[26] 1372 6 4,899
Dutchess 45,266 892[27] 1765 7 6,466
Orange 18,478 340[28] 4 4,619
Columbia 27,732 1498[29] 1863 3 9,244
Montgomery 28,839 811[30] 1209 6 4,806
Suffolk 16,440 5 3,288
Washington[31] 15,647 4 3,911
41

Several conclusions are obvious from this table. Measured by the popular vote, New York was overwhelmingly against the ratification of the Constitution. With the apportionment of representation against them, the Anti-Federalists elected nearly twice as many delegates as the Federalists. The popular vote in favor of ratification was largely confined to the urban centres of New York City and Albany City, thus correcting assumptions based on the convention vote alone.

But with this decided popular vote against them the Federalists were able to carry through their program by a narrow margin of thirty to twenty-seven. Why did so many Anti-Federalists whose popular mandate was clear and unmistakable, for there was a definite fight at the polls on the issue, go over to their enemies? Three Anti-Federalist members, who did go over and carry the day for the Federalists, John DeWitt, John Smith, and Melancton Smith, later appeared as holders of public securities;[32] but this does not explain the event.[33]

In Pennsylvania, the vote on the election of delegates to ratify the Constitution was apparently very slight. The dissenting minority in their famous manifesto declared "The election for members of the convention was held at so early a period and the want of information was so great that some of us did not know of it until after it was over. ... We apprehend that no change can take place that will affect the internal government or constitution of this commonwealth unless a majority of the people should evidence a wish for such a change; but on examining the number of votes given for members of the present State convention, we find that of upwards of seventy thousand freemen who are entitled to vote in Pennsylvania, the whole convention has been elected by about thirteen thousand voters, and though two-thirds of the members of the convention have thought proper to ratify the proposed Constitution, yet those two-thirds were elected by the votes of only six thousand and eight hundred freemen."[34] Though the partisan source of these figures might lead one to question their accuracy, nevertheless it is hardly probable that they would have greatly exaggerated figures that were open to all.

Philadelphia was the scene of perhaps the hottest contest over the election of delegates that occurred anywhere. The city had at that time a population of about 28,000 inhabitants. At the election, the candidate who stood the highest at the polls, George Latimer, received 1215 votes while his leading opponent received only 235 votes.[35] Thus a total of 1450 votes was cast in the election - about 5 per cent of the population.

The total population of the state in 1790 was 434,373, and allowing for the difficulty of journeying to the polls in the rural districts, it seems that the estimate of the dissenters was probably not far from correct.

It appears that in Baltimore 1347 voters participated in the election of representatives from that city. McHenry at the head of the poll received 962 votes and it was known that he favored unconditional ratification of the Constitution. His leading opponent received 385 votes.[36] This vote was taken after a considerable demonstration, for a newspaper report says that "On the same day, the ship builders, the tradesmen concerned in navigation, the merchants, the manufacturers and several thousand inhabitants walked in procession through the different streets of the town." Baltimore had at that time a population of 13,000 so that a very large proportion of the adult males took part in the election.

Further light is thrown on the vote in Maryland by an opponent of ratification in along paper printed in the Maryland Journal of May 16, 1788, signed "Republican." The author, says Steiner, "asserts that the 'common class' of people knew little of the Constitution. The two thousand copies of that document printed by order of the Assembly were too few to go far. The Annapolis paper is of small circulation, and the two Baltimore ones are never seen on the Eastern Shore, while the severe weather during the past winter prevented any newspapers from being sent over thither. Of the 25,000 voters in the state, only 6000 voted at the election and 4,000 of these votes were cast in Baltimore town and seven of the counties. The rich and wealthy worked for the Constitution to prevent the loss of their debts, and in some counties the opposition had named no candidates."[37]

In South Carolina, the distribution of representation in the convention was such as to give a decided preponderance to the personalty districts along the sea-board. The convention of 1788 was composed of approximately twice the number of the house of representatives in 1794 and the apportionment was similar in character. In the latter year, R.G. Harper, under the pen-name of "Appius" pointed out the great disparity in the weight of the upper and lower districts in the legislature: "The lower country , including the three districts of Charleston, Beaufort, and Georgetown [which were strongly in favor of ratification of the Constitution], contains 28,694 white inhabitants, and it elects seventy representatives and twenty senators. Divide 149,596, the whole number in the state, by 28,694, those of the lower country, and the result will be more than five, from whence it appears, that a large majority of both branches of the legislature is elected by less than one-fifth of the people."[38] The upper district [largely Anti-Federal], on the other hand, contained 120,902 white inhabitants, and sent only fifty-four members to the house of representatives. On this basis, the seventy-three votes cast in the convention against ratification may in fact have represented a majority of the white inhabitants and voters in the state.[39] While one hesitates to generalize about the vote cast in favor of the Constitution on the basis of the fragmentary evidence available, it seems worth while, nevertheless, to put together several related facts bearing on the matter. In addition to the conclusion, brought out by Dr. Jameson, that about 5 per cent of the population voted in Massachusetts in the period under consideration, we have other valuable data. Dr. Paullin has shown that the electoral vote in the presidential election of 1788 in New Hampshire was 2.8 per cent of the free population; that the vote in Madison's electoral district in Virginia in the same election was 2.7 per cent of the white population; that the vote in the first congressional election in Maryland was 3.6 per cent of the white population and that the vote in the same congressional election in Massachusetts was 3 per cent.[40] Speaking of the exercise of the franchise as a whole in the period, Dr. Paullin says, "The voting was done chiefly by a small minority of interested property holders, a disproportionate share of whom in the northern states resided in the towns, and the wealthier and more talented of whom like a closed corporation controlled politics."

In view of these figures, in view of the data given above on the election of delegates (to the ratifying conventions) in the cities of Boston, Philadelphia, and Baltimore, in view of the fact that the percentage participating in the country was smaller than in the towns, and in view of the fact that only 3 per cent of the population resided in cities of over 8000, it seems a safe guess to say that not more than 5 per cent of the population in general, or in round numbers, 160,000 voters, expressed an opinion one way or another on the Constitution. In other words, it is highly probable that not more than one-fourth or one-fifth of the adult white males took part in the election of delegates to the state conventions. If anything, this estimate is high.

Now in four of the states, New Hampshire, Massachusetts, New York, and Virginia, the conventions at the time of their election were either opposed to the ratification of the Constitution or so closely divided that it was hard to tell which way the final vote would go. These four states, with Rhode Island and North Carolina,[41] which were at first against ratification, possessed about three-fifths of the population - in round numbers 1,900,000 out of 3,200,000 free persons. Of the 1,900,000 population in these states we may, with justice it seems, set off at least 900,000, that is, 45,000 voters as representing the opposition. Add to these the voters in Pennsylvania who opposed the ratification of the Constitution, approximately 6000, and we have 51,000 dissenting voters, against ratification. Adding the dissenters in Maryland, South Carolina,[42] and Connecticut, and taking the other states as unanimous, we may reasonably conjecture that of the estimated 160,000 who voted in the election of delegates, not more than 100,000 men favored the adoption of the Constitution at the time it was put into effect - about one in six of the adult males.

Admitting that these figures are rough guesses, it appears, nevertheless, that the Constitution was not "an expression of the clear and deliberate will of the whole people," nor of a majority of the adult males, nor at the outside of one - fifth of them.

Indeed, it may very well be that a majority of those who voted were against the adoption of the Constitution as it then stood. Such a conjecture can be based on the frank statement of no less an authority than the great Chief Justice Marshall who took a prominent part in the movement which led to the formation and ratification of the new instrument of government.[43]

At all events, the disfranchisement of the masses through property qualifications and ignorance and apathy contributed largely to the facility with which the personalty - interest representatives carried the day. The latter were alert everywhere, for they knew, not as a matter of theory, but as a practical matter of dollars and cents, the value of the new Constitution. They were well informed. They were "conscious of the identity of their interests. They were well organized. They knew for weeks in advance, even before the Constitution was sent to the states for ratification, what the real nature of the contest was. They resided for the most part in the towns, or the more thickly populated areas, and they could marshall their forces quickly and effectively. They had also the advantage of appealing to all discontented persons who exist in large numbers in every society and are ever anxious for betterment through some change in political machinery.

Talent, wealth, and professional abilities were, generally speaking, on the side of the Constitutionalists. The money to be spent in the campaign of education was on their side also; and it was spent in considerable sums for pamphleteering, organizing parades and demonstrations, and engaging the interest of the press. A small percentage of the enormous gain to come through the appreciation of securities alone would have financed no mean campaign for those days.

The opposition on the other hand suffered from the difficulties connected with getting a backwoods vote out to the town and county elections. This involved sometimes long journeys in bad weather, for it will be remembered that the elections were held in the late fall and winter. There were no such immediate personal gains to be made through the defeat of the Constitution, as were to be made by the security holders on the other side. It was true the debtors knew that they would probably have to settle their accounts in full and the small farmers were aware that taxes would have to be paid to discharge the national debt if the Constitution was adopted; and the debtors everywhere waged war against the Constitution - of this there is plenty of evidence.[44] But they had no money to carry on their campaign ; they were poor and uninfluential - the strongest battalions were not on their side. The wonder is that they came so near defeating the Constitution at the polls.

  1. ↑ See above, p. 234.
  2. ↑ Ibid., p. 72.
  3. ↑ Dodd, The Revision and Amendment of Constitutions; and Garner, in The American Political Science Review, February, 1907.
  4. ↑ McCulloch v. Maryland, 4 Wheaton, 316. 239
  5. ↑ Batchellar, State Papers of New Hampshire, Val. XXI, p. 165.
  6. ↑ Debates and Proceedings in the Convention of the Commonwealth of Massachusetts in 1788 (1856), p. 23.
  7. ↑ Connecticut Courant, October 22, 1787.
  8. ↑ Documentary History of the Constitution, Vol. II, p. 61.
  9. ↑ Delaware State Council Minutes, 1776-1792, pp. 1080-1082.
  10. ↑ McMaster and Stone, Pennsylvania and the Federal Constitution, p. 72.
  11. ↑ Votes and Proceedings of the Senate of Maryland, November Session, 1787, pp. 5 ff.
  12. ↑ Above, p. 69. Blair, The Virginia Convention of 1788, Vol. I, pp. 56-57. Only freeholders could sit in the Convention.
  13. ↑ North Carolina Assembly Journals, 1785-1789, p. 22.
  14. ↑ Documentary History of the Constitution, Vol. II, p. 83.
  15. ↑ Libby, Geographical Distribution of the Vote on the Federal Constitution, p.26, and note.
  16. ↑ Article cited below, p. 243.
  17. ↑ McKinley, Suffrage Franchise in the English Colonies, p. 420.
  18. ↑ Dr. J. F. Jameson, "Did the Fathers Vote," New England Magazine, January, 1890.
  19. ↑ A detailed statement of the vote in many Connecticut towns on the members of the state convention could doubtless be compiled after great labor from the local records described in the report on the public archives of Connecticut. Report of the American Historical Association for 1906, Vol. II.
  20. ↑ Harding, The Federal Constitution in Massachusetts, p. 55, note 3. The Connecticut Courant gives the number as 763, December 17, 1787.
  21. ↑ Elliot, Debates, Vol. II, p. 206.
  22. ↑ Daily Advertiser, May 30, 1788.
  23. ↑ Ibid., June 3.
  24. ↑ Queens vote was divided in the Convention.
  25. ↑ Daily Advertiser, June 4.
  26. ↑ Ibid., June 4.
  27. ↑ Ibid., June 6.
  28. ↑ Ibid., June 14.
  29. ↑ New York Journal, June 5, 1788.
  30. ↑ Ibid., June 5.
  31. ↑ The Journal for June 5 reports the Anti-Federalist ticket carried in Washington County by a vote of two to one.
  32. ↑ See below. p. 270.
  33. ↑ See a forthcoming dissertation on this subject by Wm. Feigenbaum. There was a threat of secession on the part of some New York City interests in case the Constitution was defeated. Weight was given to this threat by the news of the ratification from New Hampshire and Virginia. The possibility of retaining New York as the seat of the new Government was used by Jay, Hamilton, and Duane as an argument in favor of ratification. James Madison, Writings, Vol. I, p. 405.
  34. ↑ McMaster and Stone, op. cit., p. 460.
  35. ↑ Scharf and Wescott, History of Philadelphia, V01. I, p. 447.
  36. ↑ Hartford Courant, April 28, 1788.
  37. ↑ American Historical Review, Vol. V, p. 221.
  38. ↑ Appius,"To the Citizens of South Carolina" (1794). Library of Congress, Duane Pamphlets, V 01. 83.
  39. ↑ By a careful study of local geography and the distribution of representation this could be accurately figured out.
  40. ↑ "The First Elections under the Constitution," Iowa Journal of History and Politics, Val. II, pp. 3 ff.
  41. ↑ It will be recalled that the Constitution was put into effect without either North Carolina or Rhode Island.
  42. ↑ See above, p. 248.
  43. ↑ See below. p. 299.
  44. ↑ Libby, op. cit., pp. 50 ff.
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