The first installment in this series reviewed highlights from the recently-issued Volume 27 of the Documentary History of the Constitution of the United States, which covers South Carolina. This second installment continues with highlights from Volume 28, which covers New Hampshire.
New Hampshire was a small state, but its ratification was significant. It was one of only two states—the other was North Carolina— whose convention adjourned rather than approve the Constitution. The New Hampshire convention, like its North Carolina counterpart, later re-assembled for purposes of ratifying. (Rhode Island initially rejected the document in a referendum, but later ratified by convention.)
The initial session of the New Hampshire convention met in February, 1788. When it reconvened and ratified the following June, it made New Hampshire the ninth state to approve the document, bringing it to life for the ratifying states. As I explain in my book, The Original Constitution: What It Actually Said and Meant, the framers apparently chose the nine-state threshold because Americans were familiar with it and, perhaps more importantly, the conventions of even the smallest nine states represented a majority of the American people. Furthermore, New Hampshire’s decision spurred adoption in New York and Virginia.
The Original Constitution: What It Actually Said and Meant also explains that, as valuable as Hamilton, Madison’s, and Jay’s “Federalist Papers” are, we should not rely too heavily on them. This is because The Federalist’s influence on the ratifiers was not as great as we might imagine. The editors of the Volume 28 report that not a single New Hampshire newspaper reprinted even one complete essay from The Federalist. Only one New Hampshire newspaper printed part of single essay. By contrast, the New Hampshire Spy reproduced all of John Dickinson’s Fabius essays, and the New Hampshire Gazette reprinted five of the nine.
Here are some other highlights from Volume 28:
1. The book reprints two essays by “A Friend to the Rights of the People” and “A Friend to the Republic”—apparently the same anti-federalist author. The essays advance some unique points against the Constitution—for example, that it would make it harder for Vermont to become a state. But the real usefulness of these essays is that they serve as a compendium of nearly all the important arguments against the Constitution: (1) The instrument provided for congressional terms that were too long, (2) it gave too much power to Congress over congressional elections, (3) it contained insufficient curbs on congressional pay, (4) it allowed a standing army in time of peace, (5) it did not permit Congress to end the slave trade for 20 years, (6) its definition of the judicial power were too expansive, (7) the document prescribed no religious test for federal office, (8) its fiscal restraints were insufficient, and (9) it contained no bill of rights.
When discussing congressional terms, the “Friend” observes, “No wise man will contract with a menial servant for four or six years at once; he will chuse to engage him for a short term first, and if he proves faithful, he will renew the contract, if otherwise, he can easily discard him.”
His observation about congressional pay is similar: “No wise householder will let his servants make a law to fix their own wages, or dip as deep as they please in his coffers.” This concern led to proposal of the original second amendment, restricting congressional pay. The states finally adopted it in 1992, as the 27th amendment.
2. The volume includes a “political sketch” by William Vans Murray, which argues that the government should treat all religions equally—the view eventually adopted by the First Amendment. Vans Murray includes this memorable line: “Policy . . . is often little more than the passion of the day sanctified by law and sophistry.” Modern readers can certainly think of many contemporary examples!
3. Also on religion, the volume includes an exchange at the New Hampshire ratifying convention between Deacon Mattias Stone, who argued that federal officeholders should profess a belief in God, and the Reverend Samuel Langdon, who responded that religion was separate from the civil power and “must stand on its own ground.”
4. The book features memorable convention speeches by anti-federalist Joshua Atherton (attacking the Constitution’s 20-year tolerance for the slave trade) and federalist Judge Samuel Livermore, who construed the Constitution’s grant of judicial power more narrowly than federal courts were later to interpret it.
5. Reprinted in this volume is an article from the New Hampshire Spy that also appeared in Volume 16. It lists the benefits of newspapers, and serves as evidence that “freedom of the press” extended as much to non-political as to political subjects.
6. I noted in a recent study that modern writers sometimes “ride one horse too far.” By this I mean they claim constitutional interpretation should serve one particular value, such as “democracy” or “public trust,” at the expense of others. In fact, the Founders balanced their core constitutional values when adopting the Constitution— making tradeoffs in pursuit of liberty, effective government, democratic republicanism, fiduciary government (“public trust”), and decentralization. Volume 28 reprints a New Hampshire Gazette article illustrating how liberty and effective government were balanced against each other.
7. The same Gazette piece strengthens the conclusion that the constitutional term “Commerce” encompasses only a some economic activities—not the entire economy. Although modern jurists often suggest economic interdependence is something new (thereby justifying radical expansion of the Commerce Power), in fact the Founders fully understood that commerce was interdependent with other economic activities, such as agriculture or manufacturing. Yet they had good reasons for dividing jurisdiction over different economic activities between the federal government and the states. The fact that commerce affects other economic activities is seldom good cause for blurring the distinction.
8. Just as an item in Volume 27 (South Carolina) gives comfort to those who interpret the Constitution as a direct grant from the American people, so the New Hampshire volume contains a fragment favoring the competing “interstate compact” theory. A writer calling himself “Alfredus” in the Exeter Freeman’s Oracle newspaper argued that “The Constitution now before the public is not a compact between individuals, but between several sovereign and independent political societies . . . “