Anti-Constitutionalist delegates to the New York ratifying convention continued to offer amendments to the proposed new form of government on a daily basis; in effect, attempts to re-write the document they zealously sought to defeat. On July 2 alone, a dozen amendments were proposed, ranging from requiring a two-thirds vote of both houses of Congress for the federal government to borrow money, to assuring that “the power of Congress to establish post offices and post-roads is not to be construed to extend to the laying out, making, altering, or repairing highways, in any state, without the consent of the legislature of such state.”
On July 5, an additional twelve amendments were proposed, including nine specifically impacting the judiciary. Two days later, John Lansing presented a bill of rights “intended to be inserted in the ratification of the new Constitution.” It incorporated fifteen rights, including trials by impartial juries; security from unreasonable searches and seizures; and freedom of the press, religious profession, and peaceable assembly.
Federalists persisted in refusing to engage on every amendment, but continued to press for ratification, although with less vigor and detailed analysis than before. More than anything, they were confounded by the Antis persistent obstinacy. John Swann, a pro-Constitution North Carolina delegate to the Confederation Congress, considered New York’s procrastination and “extreme indecision…astonishing since they are apprised of its ratification by ten States.” The Antis, he observed, “seem determined to dispute the ground inch by inch. What they propose from their inflexibility is hard to discover; since it is certain…that they will find their concurrence sooner or later not only expedient but unavoidable.”
At the end of the day, Governor George Clinton, President of the convention, announced that many of the amendments were “merely declaratory; others of a different nature” and “wished them to be arranged and the matters offered in support of the clauses considered.” John Lansing was chosen to head a group of Antis to accomplish this task.
On July 10, Lansing presented an extensive list of amendments, each under one of three categories – “explanatory, “conditional,” and “recommendatory.” As examples, the New York Daily Advertiser reported:
The Bill of Rights is among those that are explanatory. The following are conditional: 1st. That there shall be no standing army in time of peace, without the consent of two-thirds of Congress: 2nd. That there shall be no DIRECT TAXES, nor excises on American manufactures: 3rd. That the militia shall not be ordered out of the state, except by the previous consent of the executive thereof; nor then for a longer time than six weeks, without the consent of the state legislature: and 4th. That there shall be no interference in the elections, unless when a state shall neglect or refuse to provide for the same.
Lansing reported that many proposed amendments had been altered not only in form but in substance as well. The report also recommended ratification, but conditioned on a complicated list of stipulations. Next, a committee composed of both sides was established to arrive at an “accommodation” and “so to arrange the amendments as to bring the business to a quick and friendly decision.” Among others, the committee included John Jay, John Lansing and Melancton Smith.
The next day, July 11, Jay moved that the convention ratify the Constitution. Amendments could be recommended, he said, but under the Constitution just adopted by ten States, Congress had no power to accept “conditional” ratification. New York must decide – to join the new Union or to remain outside of it. If we refuse to join, Jay concluded, “this government will be organized, and we have no hand in it. Many important laws will and must then be passed. They may affect our rights and interests.”
Following Jay’s lengthy, enthusiastic but practical plea for ratification and testy dialogue with Smith, Gov. Clinton weighed in. Where did Congress get power to alter the original Confederation? he asked. Or to organize a new form of government? Jay mockingly retorted by noting “a new way of answering difficult questions…by asking others.” As for exceeding powers, Robert Livingston added, “Every man knows that the States violated the Confederation…and even New York has violated the compact.”
Livingston delivered one of his most impressive speeches during the convention, appealing to the interests of New York. It depended on the other States for commerce; would “their resentments be raised?” Would the southern part of New York separate? If so, “what would become of us in this northern part of the State?” What about the considerable money Congress currently spent in the State? Would New York be able to defend itself if she chose to go it alone? “It is in our power to create unanimity,” he proclaimed, “or to sow dissentions, war and ruin.” With all of this, the New York ratifying convention remained at an impasse.
At the same time, Samuel Osgood, a member of the Confederation’s three-member Board of Treasury, sent a letter to Smith and Samuel Jones. After New Hampshire’s ratification, he noted, the Confederation Congress had appointed a committee to prepare a report for organizing the new government. The Report fixed “the first February next” for convening the new government and was called up for discussion on July 10. However, consideration was postponed on the assumption that New York would soon decide about ratification. “When this should be known,” wrote Osgood, “the question about place would be more properly before the House.” If New York remained outside the Union, its capitol would no longer remain in New York City. The loss would be considerable.