[On December 7th, 1787, Delaware became the first state to ratify the U.S. Constitution. So for the 235th anniversary of that historic moment, this week I’ll AmericanStudy a handful of Constitutional contexts, leading up to a special weekend post on present issues and debates!]
On the history, significance, and limitations of the Constitution’s first evolution.
One of the most striking things about the Constitution that was finally, fully ratified on June 21, 1788—when New Hampshire became the necessary 9th state to ratify—is that it was already different from the document that was created on September 17, 1787. The Federalist and Anti-Federalist debates about which I wrote in Tuesday’s post spilled over into the ratification debates throughout state legislatures, and eventually necessitated the February 1788 deal that became known as the Massachusetts Compromise: that the group of Amendments drafted by George Mason and known as the Bill of Rights would be immediately added to the Constitution. (There were initially twelve proposed Amendments, but only ten of course made it into the final version.) It was only after that compromise that the legislatures of four states—Massachusetts, Maryland, South Carolina, and New Hampshire—ratified the Constitution, so in a very real sense the document would not exist (not as anything other than a statement of principles, at least) without the Bill of Rights.
I would argue that the true significance of the Bill of Rights lies not just in that necessary role, however, nor even in the important and often ground-breaking specific concepts and guarantees that it includes. To my mind, the Bill of Rights was and is so significant because it immediately and permanently established the Constitution as a living document. That is, while the body of the Constitution had laid out (in Article Five) the process by which the document could be amended, there was no guarantee that it would be so altered; and I believe that the longer it had existed in a static form, the more it might have seemed to be set and unchangeable as a result. But instead, before that document was even ratified, and more than a year before it and the government it created took effect as the law of the land (on March 4, 1789), it was amended. Those amendments were the result of a messy set of debates and compromises, but that too was precisely the point, on multiple levels: they remind us that the Constitution likewise was produced through a process; and they make clear that it was designed to allow for that process to continue, and through that process to change the document (and thus the laws and nation).
Of course, the messy process that created the Constitution was also frustratingly and prominently racist, and the Bill of Rights (perhaps unsurprisingly, drafted as it was by a slave-owner) in no way escaped that all-too central element. After all, virtually every individual and collective right guaranteed by the Bill of Rights was at the same time legally denied to enslaved African Americans, who could not assemble in protest nor (in most cases) practice their religion of choice (that is, while of course many enslaved African Americans converted to and practiced Christianity, they hardly ever had any individual choice in the matter), who certainly had no right to a trial by jury nor to resist the authorities, and who day in and day out were subject to the most cruel and unusual punishments. While the 3/5s clause is the Constitution’s most overt and shocking illustration of the fundamental place of slavery and racism in the nation’s founding, I would argue that the gap between the Bill of Rights and the individual and collective experiences of enslaved African Americans is the document’s most engrained discrimination. This evolution was so important that the Constitution might not exist at all without it, but for hundreds of thousands of Americans, it was one more set of illusory and false promises.
Last Constitutional context tomorrow,
PS. What do you think?