Constitution Day: How the States Put Aside Differences To Become ‘We the People’

By Hon. Albert M. Rosenblatt

Constitution Day: How the States Put Aside Differences To Become ‘We the People’

7.5.2022

By Hon. Albert M. Rosenblatt

Constitutionnday_675 (1)

On Sept. 17, we commemorate the signing of the United States Constitution in Philadelphia on that day in 1787. That was 235 years ago; not as round a number as 100 or 250, but it will do nicely, as the 70th time we are doing it. On Feb. 29, 1952, by joint resolution, Congress designated Sept. 17 as “Constitution Day and Citizenship Day.”[1]

Beginning with the words “We the People,” the U.S. Constitution began as a blueprint for governance. It did not emerge full-grown, but had followed a decade of experience in self-rule, with a good deal of borrowing from the state constitutions that preceded it by a decade.

The Constitution was our second try at binding ourselves together. Not long after the Declaration of Independence of July 4, 1776, the fledgling states crafted the Articles of Confederation – our first attempt at forging political bonds, but as a confederation, not as an indivisible nation.[2] The articles contemplated no unitary executive nor any meaningful national power over commerce or taxation. In foreign affairs the country could not speak with one voice; each state had its own say.

The question of the hour was whether to amend the articles and improve them or scrap them entirely in favor of a new arrangement.

The Constitutional Convention in Philadelphia, 1787

Virginia called for a convention, and only four other states – New Jersey, Pennsylvania, Delaware and New York – attended in Annapolis, Maryland in mid-September 1786. They recommended a general convention of the states to meet in Philadelphia to consider amending and revising the Articles of Confederation.[3]

It was not an easy business. There were serious divisions both as to the means and to the ultimate objective. We had been a British colony for about a century and had grown weary of our political dependance on England. In trying to establish self-rule, we had no stomach for a monarchy, but we knew that some form of executive power was necessary, as well as a lawmaking body. Many liked the Athenian ideal that allowed all citizens to have a voice, but we knew we could not assemble the population to vote on whether a road needed patching. The task was complicated by the nature of the participants – former colonies, now called “states,” some more commercially powerful than others, each with its own currency and each having operated for several years under its own self-styled constitution.

How was power to be divided under a new, centralized format? Could we successfully separate power among the different branches of a centralized government? Would the branches be able to check and balance each other so that one branch could not devour another?

And what would become of the states? The citizens had come to see their state governments as protecting their rights and liberties. Would a strong central government overpower the states only to rule the population from afar?

In the spring of 1787, New York’s Legislature chose Alexander Hamilton, John Lansing, Jr. and Robert Yates as its delegates to the Constitutional Convention in Philadelphia.[4] Divisions soon sharpened between delegates who wanted merely to amend the Articles of Confederation, retaining a good deal of state power, and those who wanted to fashion a new constitution, by which the states would have to yield power – a major sticking point for states like New York, which was in no hurry to give up its commercial advantages.

Governor George Clinton and Melancton Smith, along with Lansing and Yates, were New York’s chief proponents of the amendment route, with Hamilton in the other corner. By June 1787 matters came to a head.

James Madison had come to appreciate that New York “would never have concurred in sending deputies to the convention, if she had supposed the deliberations were to turn on a consolidation of the States, and a National Government.”[5]

Eventually, though, the convention committed itself to creating a strong central government. In mid-July, Yates and Lansing walked out of the convention, never to return, leaving only Hamilton as New York’s delegate.[6]

On Sept. 17, 1787, the delegates, including Hamilton, signed the Constitution and sent it to Congress.[7] In his diary, George Washington wrote: “Met in Convention when the Constitution received the Unanimous assent of 11 States and Colo. Hamilton’s from New York. . . .”[8]

Ratification Conventions, State by State

Writing the Constitution was one thing, but getting the states to agree to it was another. Congress could not lawfully authorize the change in concept to a new “Constitution,” so it was necessary to submit the Constitution to each state, for them to buy into it (to “ratify” it) or not.[9] This set the stage for ratification conventions in each state, with New York’s in Poughkeepsie, the capital at the time, during the summer of 1788. In Article 7, the Constitution stipulated that if and when nine states were to ratify, the Constitution would take effect.[10]

Given their fears that an unknowable centralized government could swallow up too much power, some delegates wanted a declaration – a bill of rights – to protect the citizenry against a federal government. As drafted, the Constitution contained no such provision, and some delegates, particularly at New York’s Ratification Convention, fiercely resisted ratification without a set of amendments as a check against the federal government. At first, New York tried to ratify on condition that a bill of rights would follow, but when that failed, the delegation, led by Melancton Smith, agreed to ratify “in full confidence” that the Bill of Rights would later be enacted – as it was, in 1791.[11] Smith had also balked at the Constitution’s three-fifths clause, which strengthened the power of slave states. The Constitution did not refer directly to slaves, as it did not use the term “slave” or “enslaved” or “slavery,” but the language of Article 1, Section 2 of the Constitution declared that “any person who was not free would be counted as three-fifths of a free individual for the purposes of determining congressional representation.” The clause, commonly known as the “three-fifths clause,” served as an additional inducement for slave states to expand their enslaved population. The more people who were enslaved in any state, the greater the state’s representation in Congress, thus increasing the political clout of the slave states. The clause was among the framers’ concessions to the South, out of the concern that the South would not join the Union without allowances of that kind. The clause, however, gave the South enough political muscle to advance the enactment of such notorious federal laws such as the Fugitive Slave Acts of 1793 and 1850, designed to apprehend and return runaway slaves, without a semblance of due process.

At New York’s Constitutional Ratification Convention, Melancton Smith summed up the three-fifths clause with a characterization that has stood the test of time. “What adds to the evil,” he wrote, “is, that . . . for every cargo of these unhappy people which unfeeling, unprincipled, barbarous and avaricious wretches may tear from their country, friends and tender connections, and bring into those States, they are to be rewarded by having an increase of members in the General Assembly.”[12]

Due Process of Law

In its ratification statement, prompted by Smith and John Lansing, New York proposed language for a list of amendments, including the phrase “due process of law.” James Madison adopted those very words in framing the Fifth Amendment.

The concept, if not the precise coinage itself, was not unknown to New Yorkers in 1788. It gives us reason to celebrate not only the United States Constitution, but New York’s first Constitution (1777), which used the phrase “law of the land” to convey the idea of due process and the rule of law. Also, in 1787, New York had enacted a statutory bill of rights declaring that “no citizen of this State shall be taken or imprisoned or be disseised . . . but by lawful judgment of his or her peers or by due process of law.”[13]

And so, we New Yorkers have not one but two documents to which we look for our governance. The United States Constitution has been amended infrequently over the years.[14] In contrast, New York’s Constitution has had many amendments, as voters well know from their yearly balloting.

There have been several constitutions and constitutional conventions in our state history, in 1821, 1846, 1867, 1894, 1938 and 1967.[15] In 2017, the editors of this Journal called for a constitutional convention, devoting an entire issue to the prospect, to deal with the environment, the court system, home rule and other important initiatives.

A constitution, earnestly conceived and followed, is a remarkable achievement, setting out the polity’s highest ideals. The Constitutions of the United States and of New York contemplate democratic governance by the people, under the rule of law. Over the long span of history, they contrast with rule by monarchy, by divine right or by force. Enjoy the celebration.

Albert M. Rosenblatt was a New York chief administrative judge and served on the Court of Appeals. He teaches at NYU Law School and is of counsel to the law firm of McCabe and Mack in Poughkeepsie.


[1] 36 U.S.C. § 106; A Proclamation on Constitution Day and Citizenship Day, and Constitution Week, 2021, White House, Sept. 16, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/16/a-proclamation-on-constitution-day-and-citizenship-day-and-constitution-week-2021/.

[2] Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution: Volume I, Constitutional Documents and Records, 1776–1787, (1976) at 78–94.

[3] For the text of the Annapolis Convention Report of Sept. 14, 1786, see https://founders.archives.gov/documents/Hamilton/01-03-02-0556.

[4] John Kaminski, ed., The Documentary History of the Ratification of the Constitution, Vol. XIX, 514–25 (Kaminsky); see also Stephen L. Schechter, ed., The Reluctant Pillar (1985), 59–60, choosing Alexander Hamilton, John Lansing and Robert Yates (Poughkeepsie Country Journal, March 14, 1787, 5).

[5] See James Madison’s Notes of the Constitutional Convention (June 16, 1787), https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-16/.

[6] The convention approved Virginia’s resolution on June 19, 1787; Lansing and Yates left Philadelphia on July 10, 1787, see Kaminski, Vol. XIX at 102; see also, Susan Westbury, Robert Yates and John Lansing, Jr., New York Delegates Abandon the Constitutional Convention, New York History, 82, no. 4 (2001): 313–35, http://www.jstor.org/stable/42677797. In a Dec. 21, 1787 writing, published in New York Journal on Jan. 14, 1788, and in the Pennsylvania Evening Herald on Jan. 19, 1788, Lansing and Yates explained their departure. https://archive.csac.history.wisc.edu/assessments_25.pdf.

[7] Kaminski, Vol. XIX at lxxxv; Washington’s cover letter presenting the Constitution to Congress, https://www.let.rug.nl/usa/documents/1786-1800/the-letter-presenting-the-constitution.php.

[8] For Washington’s diary entry of Sept. 17, 1787, see https://founders.archives.gov/documents/Washington/01-05-02-0002-0009-0017. As to Hamilton’s signing, see Michael Coenen, The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So, 119 Yale L.J. 966, 991–92 (March 2010).

[9] Nathan Dane made the motion on Sept. 26, 1787. See The Documentary History of the Ratification of the Constitution, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan, University of Virginia Press, 2009, https://archive.csac.history.wisc.edu/confederation_7.pdf (Dane’s motion, Sept. 26, 1787).

[10] 33 Journal of the Continental Congress 549, https://www.loc.gov/resource/bdsdcc.22801/?st=gallery.

[11] Kaminski, Vol. XXII at 1673–74; Volume XXIII at 2279–80; New York Daily Advertiser, July 28, 1788, 2; Poughkeepsie Country Journal, July 29, 1788, 2; see also Poughkeepsie Country Journal, July 22, 1788, 2 (reporting on the events of July 16 and 17, 1788).

[12] Kaminski, Vol. XIX, 253.

[13] New York Bill of Rights, Jan. 26, 1787, https://www.nycourts.gov/history/legal-history-new-york/documents/Publications_New-York-Bill-Of-Rights.pdf (emphasis added).

[14] See Richard B, Bernstein, Amending America, University Press of Kansas, 1993.

[15] See Peter Galie, Ordered Liberty, A Constitutional History of New York (1996); Peter J. Galie and Christopher Bopst, The New York State Constitution, Oxford University Press, 2012.

Six diverse people sitting holding signs
gradient circle (purple) gradient circle (green)

Join NYSBA

My NYSBA Account

My NYSBA Account