For three weeks delegates to the Pennsylvania ratifying convention argued strenuously over the merits of the newly proposed federal Constitution. Ironically, they often appealed to the same principles but differed over whether the Constitution met them. Robert Whitehill, William Findley, and John Smilie took the lead opposing the Constitution while James Wilson and Thomas McKean were pressed to defend it.
Both sides opposed slavery and the issuance of paper money as legal tender. They agreed the Articles of Confederation needed revision and the rights of the people must be protected. For the Antifederalists, the Constitution went too far on some issues but not far enough on others. On the issue of slavery, for instance, they condemned the Constitution’s empowerment of Congress to ban the slave trade after 1808. While Federalists argued the provision was among the first steps to the eventual abolition of slavery, Anti-federalists complained the Constitution should have ended the odious trade immediately.
Both sides were aware of the abuses by several States, particularly Rhode Island, by the issuance of paper money as legal tender. The proposed Constitution imposed a ban on States for such action but did not impose a similar ban on the national government, giving rise to the Antifederalist reminder of the worthless continental currency issued during the War for Independence. Anti-federalists appeared ready to dispute the Constitution phrase by phrase, but the two over-arching principles guiding their opposition were the need to protect the people through a bill of rights and ensure sovereignty of the individual States.
Robert Whitehill charged that the threat to State sovereignty was evident in the Constitution’s opening words, “We the people.” This was clear proof, he argued, that its drafters had intended “to abolish the independence of the States.” James Wilson countered, asserting that the people could grant some power to the state governments and other, distinct powers to the central government. In both cases, the people remain sovereign. Moreover, the Constitution includes the power of the States to amend the Constitution. Wilson elaborated at length.
Anti-federalists were not convinced and continued to lay out their objections in detail one by one, opposing a bicameral legislature, an independent executive, a national judiciary, and much more. In fact, the debate over the proposed federal Constitution mirrored, in many respects, the clash over the Pennsylvania constitution which had been carried on for more than a decade.
At times, the debate degenerated to disputing points on the margin of relevance. Addressing the Constitution’s omission of trial by jury in civil cases, an admittedly important issue, William Findley asserted that when Sweden abandoned jury trials, “the commons of that nation lost their freedom and a tyrannical aristocracy prevailed.” Wilson and McKean challenged Findley “warmly,” asserting that “trial by jury was never known in any other country than England.”
Notwithstanding being reproved by the Chief Justice of Pennsylvania (McKean) and one of that State’s eminent lawyers (Wilson), Findley (a farmer and sometime weaver scorned by some as a “country hick”) stood his ground. “At that moment,” he said, “he could not recall the exact authority but having read histories of Sweden he had received and retained the opinion which he now advanced” and “would on a future occasion, refer immediately to the book.” The following Monday, Findley did indeed produce his proof – the Modern Universal History and the third volume of Blackstone’s Commentaries.
The Pennsylvania Packet reported that during the debate over jury trials in civil cases, “twice in the course of it, members came to personalities and once almost to blows.” Findley complained he was “not accustomed to having his word disputed in public bodies on the statement of a fact, but in this convention it already occurred more than once.” The next morning Wilson shot back, lamenting that the issue, “which for want of something more important, has made considerable noise.” His ego wounded, Wilson could not resist chiding Findley, quoting Sir John Maynard’s remark to a petulant student, “Young man, I have forgotten more law than ever you learned.”
Petty bickering over the source of Sweden’s use of juries only briefly obscured the significance of the legitimate Anti-federalist concern over jury trials in civil cases. In fact, trial by jury in civil cases was only one element of their major objection to the Constitution – the lack of a bill of rights. This became the bedrock of their attempt to defeat ratification. Appealing again to sovereignty of the people, Wilson argued that if the government impinges on the people’s rights, they can change the government. Responding, John Smilie insisted that “unless some criterion is established by which it could be easily and constitutionally ascertained how far our governors may proceed and by which it might appear when they transgressed their jurisdiction, this idea of altering and abolishing governments is mere sound without substance.”
Wilson tried another tack. “If we attempt an enumeration,” he posited, “everything that is not enumerated is presumed to be given.” An attempt to list civil liberties would run the risk of omitting some, thereby forfeiting them. Moreover, the powers given to the federal government in the Constitution are specifically enumerated, thereby limiting its powers. Smilie seized on this point. “It seems,” he observed, “that the members of the Federal Convention were themselves convinced in some degree of the expediency and propriety of a bill of rights, for we find them expressly declaring that the writ of habeas corpus and trial by jury in criminal cases shall not be suspended or infringed.” If the drafters of the Constitution believed it was necessary to safeguard those two rights, then why would it not be appropriate to list others? Could those rights not so enumerated be abrogated?
Tempers were becoming increasingly fragile and patience wearing thin as the ratification convention reconvened on Monday, December 10. After receiving a “memorial” from the citizens of Philadelphia requesting that it be offered as the seat of the new federal government, McKean took the floor and once again replied at length to the objections to the Constitution, then gave notice that on Wednesday he would “recur to his motion for adoption of the proposed plan.” In addition, he remarked “that the State of Delaware had already entered into that resolution.” Delaware had ratified! Discomfited, Smilie accused Delaware of “reaping the honor or having first surrendered the liberties of the people to the new system of government.”
Having lost the opportunity to become the first State to ratify the Constitution, Pennsylvania would now be presented with a specific bill of rights, proposed by Robert Whitehill in response to a direct challenge from McKean “to show us one, that we may judge of its necessity.”