August 31: Ratification and Republicanism

Gouverneur Morris suffered a rare defeat, and on a key issue, on August 31. The topic was the mode of ratification for the proposed Constitution, which by then was taking reasonably clear shape as the Convention neared the end of its work. Morris, attempting to expedite ratification, suggested relaxing the draft’s requirement for popular conventions, instead allowing states to ratify as they saw fit.

Madison’s response underscores his underlying republicanism. If state legislatures were allowed to drive the consideration of the Constitution, they would manipulate the process to preserve their own power. Then he struck at the heart of the matter: “The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the [state] Bills of rights, that first principles might be resorted to.”

Madison’s recognition that the Convention was invoking first principles informed much of his later democratic thought, especially about the republican character of fundamental law. The Constitution’s critics, then as now, complained of what they called its anti-democratic features. But it was never far from Madison’s mind that restrictions on majorities existed at the sufferance of majorities themselves. They could invoke first principles again. That was a reason not to abuse the anti-majoritarian features of the Constitution. Popular ratification of the Constitution outside the processes for changing the existing Articles of Confederation served as a reminder that it could be done once more.

It is, thankfully, unlikely. The veneration Madison endorses in Federalist 49 discourages fundamental tampering with the Constitution. But it is worth remembering, when the Constitution is derided as anti-democratic, that veneration at any moment is a democratic choice.

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