As I have previously observed in these pages, each of the ratification conventions with which the people of the 13 original states passed judgment on the handiwork of the Great Convention had its own distinctive drama— structural characteristics which in the end colored the meaning of the Constitution in the communities by which it was originally approved. A focus on the multiplicity of complete ratification, once it had been finally achieved, has been a constant in my commentary on the process by which that compact acquired the force of law. However, such multiplicity is nowhere more evident than in the North Carolina Convention of July 1788 held in Hillsborough—not too far from Guilford Court House where, on March 14, 1781, General Nathanael Greene had faced down the best Lord Cornwallis had to throw in his direction. This convention, dominated by Antifederalists, voted 184-84 not to ratify the proposed bond of union as it stood when presented to them. Thus it said to the tide of history, “At least for the moment, no.” And then sat back to watch the Federalist reaction to its refusal to oblige. /p>
It was, of course, a foregone conclusion that the Hillsborough Convention was not going to approve the Constitution. Willie Jones and his friends (Thomas Person, James McDowell, Judge Samuel Spencer, Timothy Bloodworth, and the Reverend David Caldwell) had done their work too thoroughly for any possibility of a Federalist “surprise” such as had occurred in New York. But the form to be taken by Antifederalist rejection was as yet undetermined, as was the use that might be made of the convention by the Federalist minority, a group of substantial citizens who were obliged to keep their minds on opportunities that might emerge if they handled their inevitable defeat in the most persuasive fashion.
The principal mistake made by the Antifederalists in connection with the first North Carolina ratification convention was that they delayed its meeting so far down the calendar of the ratifying process as to limit what they could achieve with their overwhelming majority—a delay of their state’s approval until the Bill of Rights was adopted; or the scheduling of a second constitutional convention to amend the Philadelphia instrument, what had been suggested in New York as a means of recruiting support for ratification among equivocal Antifederalists. Had the Hillsborough Convention voted before Massachusetts in January, before the first New Hampshire Convention adjourned on February 22, 1787, it might have released a tide of uneasiness and suspicion that would have brought Virginia, New York, and New Hampshire into the antifederal column: that would have sent Mr. Madison back to his drawing board and all of the Framers back to Philadelphia for a more certain clarification of the limits on what kinds of purposes might be achieved by the exercise of a proposed federal power. But they forfeited that opportunity by attempting to be too certain concerning the margin of their support in the Old North State; and by trying to make the last play in the game, once everyone else’s cards were on the table.
The blunder of the Federalists was in the opposite direction, in believing that North Carolina would agree without fierce opposition to a powerful bond of union such as its citizens had never contemplated while they moved toward independence. Even so, the envelope within which North Carolina made its choices favored the Federalists in the long run, in that the people of the state wished to keep in place a connection with their countrymen in other American commonwealths; and because they were, therefore, sooner or later going to vote for ratification since, in July of 1788, no other means were available to that fraternal end. Therefore, the strategy of the Federalists in the Hillsborough Convention was to make for the record a good case for approving the proposed Constitution and then to publish the apologia/transcript of those proceedings featuring the arguments of Archibald Maclaine, Governor Samuel Johnston, Richard Dobbs Spaight, General William Richardson Davie, and Judge James Iredell.
We are sometimes told that the surviving transcription of these proceedings underplays the participation of the Antifederalists and that Federalists edited it for effect. In a time when men were careful of their personal honor it is doubtful that Thomas Lloyd, Federalist transcriber, put words in the mouth of any Antifederalist. When the debates were published, too many important Carolinians remembered precisely what had been said. Hence I believe that there could be no politically significant distortion in the text as published—except perhaps for a little polishing of Federalist oratory to make it more attractive to Antifederalists they wished to recruit. For the historian of these events and the student of American political rhetoric it is enough to know that at Hillsborough the Federalists “wanted only to vote”: to know that the arguments made by Federalist orators were aimed at folk “out of doors,” at those not present in the convention but that potentially as influence in any subsequent assembly that might reexamine the subject of ratification.
No sooner did the Hillsborough Convention come to order than it was invited to adjourn. On the general subject of whether the delegates would approve the Constitution, Willie Jones, having counted the house, moved the question. In doing so he observed that delegates were certain to be familiar with the issues and the text of the Constitution, having had many months to consider their opinion on these subjects. Federalists raised an immediate hue and cry that such haste was unseemly and in conflict with the instructions that they had all received from the people of North Carolina to first consider and then judge the instrument of government set before them. Jones shrugged his shoulders and behaved like the great gentleman that he was, agreeing to permit his neighbors to have the debate they wanted: to work their way through the text of the Constitution, section by section, even if Federalists had to put the case for both sides of many disputed points.
This concessionary framework surrounding a conversation whose results were foreknown is part of the special rhetorical character of the North Carolina ratification debates. The other definitive ingredient present from the beginning of these deliberations was introduced immediately after Willie Jones’ decision to allow a little Federalist oratory. What I refer to is the motion made by the Reverend David Caldwell:
Mr. President, the subject before us is of a complicated nature. In order to obviate the difficulty attending its discussion, I conceive that it will be necessary to lay down such rules or maxims as ought to be the fundamental principles of every free government: and after laying down such rules, to compare the Constitution with them, and see whether it has attended to them; for if it be not founded on such principles, it cannot be proper for our adoption.
In effect, what the Reverend Caldwell was doing with this motion was suggesting that the United States Constitution should itself be an embodiment of natural rights theory and of Whig teaching on the relationship between governors and the governed. The Reverend Caldwell would have preferred to live under a fundamental law dedicated to self-evident propositions about the nature and destiny of man, not according to a series of discrete provisions for conducting the work of government. What is most significant about the reaction of his colleagues to this motion that they draw up a generic statement on aboriginal rights to use in judging the Constitution is that they found it to be not only inconvenient and obfuscatory but also “dangerous”: from “the nature of things” (in the phrase of Davie), unsuited to the business at hand, which it would delay or prevent and perhaps render impossible of resolution since men could never agree on such fundamental “principles” or “their application” (Davie again) and therefore would resist and/or reject whatever government that pretended to draw its primary authority from such abstract foundations. The overwhelming majority (163 to 90) that rejected the Reverend Caldwell’s motion was both a Federalist and an Antifederalist majority, reflecting the general sense of the people of North Carolina. In their decision they recall the language of Edmund Randolph in the Great Convention when, on May 29, 1787, he introduced the Virginia Plan with a contrast between the concern of the Framers with the problems of governance, with practical questions, and the very different preoccupations (with “human rights”) among the authors of the Articles of Confederation.
Given these predicates, the most important thing that can be said about the dramatic structure of the first North Carolina Convention is that, with reference to the strategy of the Federalists, it very much resembles all the other ratification debates for which we have records—or at least all but New York, where Hamilton was sometimes honest about the model of government under consideration. What I mean is, once they had dispensed with nonsensical objections to specific provisions in its text, Iredell and Davie, Governor Johnston and Archibald Maclaine, all set out to identify the proposed Constitution with what the serious Antifederalists said they wanted, insisting at every stage in their discussions that the great fear of the Antifederalists, of a new model government that contained a potential for limitless expansion, was unfounded: that the first amendment suggested in North Carolina’s recommended list, “that each state in the Union shall respectively retain every power, jurisdiction and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government,” was unnecessary since no implied powers existed and everything not granted by the states was “reserved” for their own administration. In one exchange Judge Iredell declared that if the Constitution were subject to such expansion, then no one would oppose it more than he would: “No such wicked intention ought to be suffered.” Efforts to “annihilate the state government, instead of exciting the admiration of any man, . . . ought to excite their resentment and execration.”
That North Carolina Antifederalism in its most important manifestations worried more about encroachment on the principles of local control and limited government than it did about the “rights of man” is, on the whole, better demonstrated by what the advocates of ratification in Hillsborough pleaded for the Constitution than by what its critics objected against it. Federalists understood very well what were (given the fierce Regulator localism of most Tarheel communities) the greatest fears of their neighbors. And these were not fears of Tory reaction or foreign invasion, not mere enthusiasm for paper money, suspension of debt and mad democracy. In fact, very little had changed since 1766-1771: since the Regulators had successfully identified local manifestations of the power of the general government in western North Carolina as an intrusive, exploitative, subjugating force. Schemes of over government for purposes of empire or to enforce a colonial policy not checked by local authority had little local support—and seemed a surprising innovation. Such folk as these Carolinians would not, in 1788, wish to introduce a remote, arbitrary and sometimes hostile power into their midst so soon after having expelled such a power from their world.
The issues raised in other state ratification debates were usually treated by the delegates in Hillsborough. But the most important antifederal objections, to the Constitution had to do with questions not so regularly addressed in other state ratifying conventions as they were in North Carolina. These most serious criticisms concerned provisions for the judiciary and for the exclusion of religious tests from the qualifications for federal officeholders. More was said about the judiciary and religion in Hillsborough than in any other part of the ratifying process. Antifederalists argued that federal courts would obliterate the jurisdiction of state laws and judges. Moreover, federal justice would be both hard to reach and expensive. Samuel Spencer feared “clashing and animosities” between state and federal courts. Oaths of officeholders promising to uphold the Constitution he thought would eventually result in consolidation. And without a statement in the Constitution reserving to the states all powers not explicitly surrendered to federal authority, he wanted to see a bill of rights attached—one of the old kind which restrained Leviathan, not citizens or states.
Though they agreed with Richard Dobbs Spaight that “no government can exist without a judiciary to enforce its laws,” Antifederalists also objected to the Supremacy Clause because they were uncertain about how far it might reach. Speaking for them, Timothy Bloodworth observed concerning the provision for a federal judiciary in the Constitution, “It is a total repeal of every act and constitution of the states. The judges are sworn to uphold it. It will produce an abolition of the state governments. Its sovereignty absolutely annihilates them.” Antifederalists also disliked the omission from the Philadelphia instrument of a provision for trial by jury in civil cases—even though Federalists gave them a good explanation of why it was impossible to do otherwise. North Carolina Antifederalists foresaw judicial imperialism far more clearly than their counterparts in the other states. In this particular, history has made them into prophets. Federalist responses to their objections to ratification also specified that these “friends of the Constitution” thought no better of lawmaking by the courts than their opponents did. Speaking for them, Archibald Maclaine declared, “The federal court has jurisdiction only in some instances. There are many instances in which no court but the state courts can have any jurisdiction whatsoever, except where parties claim land under the grant of different states, or the subject of dispute arises under the Constitution itself. The state courts have exclusive jurisdiction over every other possible controversy that can arise between the inhabitants of their own states; nor can the federal courts intermeddle with such disputes, either originally or by appeal.” Maclaine so read the law, both because he wished it to be so and because he expected his adversaries to be satisfied by such a state of affairs, given their expressed preferences.
Concerning religion and the state, Antifederalists emphasized the secularizing and irreligious effects of a lack of tests for officeholders under Article VI. James Iredell’s response to their concerns was the most distinguished and thoughtful of his many contributions to these North Carolina debates. The men of the backcountry wanted no Anglican establishment. But neither did they wish to see the United States as less than an openly Christian nation: a Protestant, Christian nation. They did not expect to allow Roman Catholics into the highest offices. But, in particular, they feared an influx of pagans, unbelievers, deists, and “Mahometans.” Henry Abbott, a Baptist elder from Anson, thought that such immigration coupled with a treaty calling for the establishment of a “foreign” faith might deprive the people of their religious freedom. For this reason Abbott and his allies thought prohibition of religious tests of officeholders impolitic. What made the idea of such a treaty with a Roman Catholic power plausible was the memory of an agreement between King Charles II of England and Louis XIV of France, the Sun King; that memory, and a network of old fears and resentments coming down from the Reformation.
Confronting these emotions. Judge Iredell drew upon British history to demonstrate that nothing was implied in the exclusion of religious tests but a hope of keeping the national government within the necessary boundaries of restraint and away from the bad example of “establishment,” British style. In his summary statement he declares that “had Congress undertaken to guaranty religious freedom, or any particular species of it, they would have had a pretence to interfere in a subject they have nothing to do with.” The lack of a guarantee in the Constitution concerning freedom of religion Iredell thus converted into a protection of such freedom—a nice inversion of the case for a bill of rights. Furthermore, Antifederalists were told that if North Carolinians could preserve a properly Christian community among themselves, only Christians would choose to join with them in moving into their state. Clearly, they did not wish to institute a confessional state. But they were uncomfortable with change in matters religious—as in all other matters. And especially with change engendered by powers remote, unresponsive, and potentially unfriendly.
With this series of questions deployed and answered, the universe of discourse inhabited by members of the Hillsborough Convention is defined. But the artificiality of this debate-for-the-record evaporated as it unfolded, so that before Willie Jones—after a week of discussion and a conclusion of the exchange on religion—moved the question, it had become a very serious discussion of the largest political issues involved in the choice for or against ratification. After listening to certain antifederal nonsense of what might happen, thanks to the existence of new powers. Judge Iredell declared, “Sir, it is impossible to treat such idle fears with any degree of gravity.” Maclaine supported him by asking, “Is it possible for any common understanding or sense to put this construction upon [the Constitution] ?” But in reacting to the overall thrust of the North Carolina ratification convention, Iredell also acknowledged that there were deeply felt and reasonable concerns underneath the entire Antifederalist argument—anxieties he was obliged to address because they reflected the loftiest of American political values, uncompromised by social or practical considerations. Speaking with admiration of the Antifederalist community that fought him all the way on ratification, Iredell affirmed, “I believe the passion for liberty is stronger in America than in any other country in the world. The North Carolina Federalists, even though they had several objectives in reforming government that went beyond what was acceptable to their Antifederalist opponents, agreed with them about protecting liberty. Therefore, they responded to their announced concerns as well as the Constitution would allow, minimizing how strong a government ratification would make; attaching a reading to the document of no value to inventive modern judges. In other words, they understood far better than local-minded opponents that the “general ground of the objections seems to be that the power proposed to the general government may be abused.” Such was the crux of the North Carolina ratifying convention.
For what the Federalists faced in Hillsborough, as some commentators on the event still fail to recognize, was the old Regulator spirit, a political temper absolutely unlike that of the Federalists. The members of that majority had no patience with the idea of the teleocratic state, even if some version of union was, as they recognized, inevitable. For they knew, as Archibald Maclaine insisted before the entire convention, that it was “impossible for any man in his senses to think that we [North Carolinians] can exist by ourselves, separated from our sister states.” Even so, North Carolina Antifederalists, in giving a vigorous rebuff to the idea of an instrumental state, set lasting limits on the ‘meaning of the Constitution they did not yet approve. For North Carolina Federalists declared that their opponents were being offered just what they (ostensibly) desired. The Antifederalists thought otherwise.
Samuel Spencer, speaking for these reluctant Framers, said of the Constitution that “it apparently looks forward to a consolidation of the government of the United States, when the state legislature may entirely decay away.” William Goody in the same cause declares that the disposition of the Constitution “to destroy state government must be clear to every man of common understanding.” And there is more of the same sort of language from Timothy Bloodworth, the Reverend Caldwell, and others. In responding to such charges, Federalists found an agenda for their own political speech and were thus restrained from construing the Constitution as anything more ambitious than what the Antifederalists were saying they were ready to accept. Their rhetoric resembled that of the Virginia Federalists just as the ,speech of their opponents calls up an image of the Virginia Antifederalists who were fully visible in the amendments to the Constitution proposed in Richmond and then proposed again in Hillsborough.
One of these suggested changes sent out to the other states by a recalcitrant North Carolina is, given the original rejection of the Reverend Caldwell’s proposal that they begin with a Declaration of Rights, surprising. For such a list is recommended to the rest of the country along with North Carolina’s “great refusal” to accept the plan of government proposed: recommended to the attention of the general government as a maxim to be considered in the framing of its laws and policies. And the list begins with a statement about the equality of all men (citizens) “when they form a social compact.” Making this statement all the more puzzling is the fact that North Carolinians had said nothing about the rights of man or equality in drawing up their original state constitution—a statement concerning the ground rules in their relations with one another. But the contradiction here is only apparent: consistent with North Carolina’s internal agreement on the subject of rights, its devotion to liberty and its fear of an indifferent, potentially hostile, or presumptuous national authority—of power not directly responsive to a local source.
Talk of rights in the Hillsborough Convention meant that its members were agreed in making the value of limited government the fundamental premise of their exchanges. Even so good a Federalist as General Davie declared, “whatever might affect the states in their political capacity ought to be left to them.” The Bill of Rights, Antifederalists hoped, would protect citizenship in North Carolina from the danger of a federal definition. Contrary to Professor Michael Lienesch, the antagonists debating ratification in North Carolina differed on how best to have state and local responsibility for personal rights, limited government and sufficient federal power, not over whether these were worthwhile concerns. With a Declaration of Rights restricting the notion of federal protection for positive rights, the old idea of corporate liberty survived among them. But only so long as it was the general government that was restrained—so long as the rest of the. Union was forewarned by Carolina’s united refusal to ratify that no expansive nonsense would be tolerated. At Hillsborough the perennial problem of American politics got a thorough hearing: the conviction that as a people we cannot live at ease either with or without a national government and therefore will be forever at odds about which side of this antithesis we should prefer to emphasize in our own time.