Massachusetts Saved the Constitution in 1788 by Ratifying and Asking for More

Every great compromise in American history has a moment when somebody decides that "yes, but" is a better answer than "no." In Boston, in the winter of 1788, that moment saved the Constitution. Without it there may have been no Virginia, no New York, no union of the size we know, and no Bill of Rights.

Here is the paradox at the center of the story. The Federalists in Massachusetts, who wanted the Constitution with no changes at all, won by agreeing to ask for changes. The Anti-Federalists, who wanted changes most of all, got them by losing. Both sides came out of Boston with something real, and the country came out with a working government and a promise that would become the first ten amendments. Let me tell it in order.

A state that remembered Shays

To understand the Massachusetts convention you have to start a year earlier, in the hill towns of the west.

In 1786 and early 1787, farmers in western and central Massachusetts, crushed by debts and by heavy state taxes payable in hard money, began closing the county courts to stop foreclosures and debt suits. The movement took its name from Daniel Shays, a former Continental Army captain. On January 25, 1787, a force of insurgents marched on the federal arsenal at Springfield and was driven off by state militia. General Benjamin Lincoln, leading troops raised largely with private money because the state treasury could not pay them, scattered the rest in early February.

Shays' Rebellion did two things at once, and they pulled in opposite directions.

1. It frightened the country's leaders into reform. Washington and others saw a confederation that could not protect its own arsenal and concluded that the union needed a real government. The rebellion added urgency to the call for the Philadelphia Convention.
2. It left the western towns deeply suspicious of power. The farmers who had sympathized with the rebels, or at least with their grievances, did not trust lawyers, merchants or Boston. When the new Constitution arrived promising a stronger national government with a taxing power and a standing army, many of them saw the same creditors and the same courts in a larger coat.

When the towns elected delegates to the ratifying convention, many of those suspicious farmers were among them. The convention that met in Boston on January 9, 1788 was the largest of any state's, and its opponents most likely began with a majority.

The convention in Boston

The delegates met first in the State House, then moved for space to the Brattle Street Church, and then to a meetinghouse on Long Lane, a street Bostonians afterward renamed Federal Street in honor of what happened there. That is the kind of civic gratitude you rarely see now; today the street would have been renamed after a sponsor.

On the Federalist side stood an impressive bench. Rufus King, Nathaniel Gorham and Caleb Strong had been delegates at Philadelphia. Theophilus Parsons, a brilliant lawyer and later chief justice of the state, managed much of the floor strategy. Elbridge Gerry, who had refused to sign in Philadelphia, was not a delegate, but the convention invited him to answer factual questions; the arrangement broke down in a quarrel and Gerry left.

The convention took the unusual step of debating the Constitution clause by clause, before any vote on the whole. That gave opponents room to raise every objection, and they did: two-year terms for the House were too long (annual elections were the New England habit), the House was too small to know the people, Congress's power over elections could be abused, the taxing power was unlimited, there was no bill of rights, and the Constitution contained no religious test, a debate told in When Ratifying Conventions Argued Over Article VI's Ban on Religious Tests.

Two farmers, two speeches

The most memorable exchange of the convention came from two men who were not lawyers at all.

Amos Singletary of Sutton, an older delegate, spoke for the suspicion of the hill towns. In substance, he warned that the lawyers, men of learning and moneyed men who talked so finely would get into Congress, get all the power and all the money into their own hands, and then swallow up the little people. He reached for a biblical image of a great beast devouring the small. It was a vivid speech, and it named a real fear.

Jonathan Smith of Lanesborough, in Berkshire County, rose to answer him, and he began by saying that he was a plain man, a farmer, unused to speaking in public. Then he described what anarchy had actually looked like in his own part of the state during the troubles of the previous winter: neighbors in arms, courts closed, families afraid. He argued that the Constitution was the cure for that disorder, not a new form of it, and he urged his fellow farmers not to be afraid of the men of learning on the Federalist side simply because they were learned.

Notice what happened there. The decisive argument for the Constitution was not made by a Harvard man. It was made by a farmer, to farmers, about something they had lived through. That is republican government doing exactly what it is supposed to do.

Hancock, Adams and the "yes, but"

By late January the Federalists had counted and found they were likely to lose. They needed two men above all.

John Hancock was the governor, the president of the convention, and the most popular man in the state. He was also, conveniently, absent through most of January with an attack of gout. Federalists believed he was waiting to see which way the wind blew; gout, in eighteenth-century politics, was a remarkably well-timed affliction.

Samuel Adams, the old revolutionary, had serious doubts. In a letter to Richard Henry Lee of Virginia in December 1787, he had worried that the plan created a national government rather than a federal union of sovereign states. But Adams was also a man of Boston, and Boston's tradesmen, the mechanics and artisans who had been the backbone of the Revolution's crowds, were strongly for the Constitution. In early January 1788 a meeting of Boston tradesmen at the Green Dragon Tavern adopted resolutions supporting ratification. Tradition holds that the resolutions were carried to Adams by Paul Revere. Whatever the messenger, Adams got the message.

The Federalists' solution was a formula. Massachusetts would ratify the Constitution unconditionally, and in the same act it would recommend a list of amendments for the new Congress to consider, with the state's representatives charged to work for their adoption. On January 31, 1788, Hancock, recovered at last, appeared and proposed it. Samuel Adams supported it. The opposition had been offered something real: not a promise from a single politician but an official statement of the state's will, attached to its ratification.

The convention voted on February 6, 1788. The result: 187 for, 168 against. The margin was 19 votes out of 355 cast, which works out to 52.7 percent in favor (187 divided by 355). Switch ten votes and the Constitution loses its sixth state and its first big one.

What Massachusetts asked for

The convention recommended nine amendments. Their substance, in plain language:

1. Reserved powers. All powers not expressly delegated to Congress by the Constitution are reserved to the several states.
2. A larger House. One representative for every 30,000 people until the House reached 200 members.
3. Elections. Congress should use its power over the times, places and manner of congressional elections only when a state neglected or refused to act, or acted contrary to the Constitution.
4. Direct taxes. Congress should lay direct taxes only when import duties and excises proved insufficient, and then only after first requisitioning the states for the money.
5. No monopolies. Congress should not grant any company exclusive advantages of commerce.
6. Grand juries. No person should be tried for a serious crime without a grand jury indictment, except in the military.
7. Federal jurisdiction. Suits between citizens of different states should reach the federal courts only above a certain amount in dispute.
8. Civil juries. In civil suits between citizens of different states, either party could demand a jury trial on the facts.
9. No foreign titles. No officeholder should accept a title or office from a foreign king or state, even with Congress's consent.

Look at the list closely and you can see the future. The grand jury requirement is in the Fifth Amendment. The civil jury guarantee became the Seventh. And the very first item, the reservation of powers, became the Tenth Amendment, with one telling difference.

The word that did not make it

Massachusetts asked for a reservation of all powers "not expressly delegated." When Madison drafted the amendments in 1789, he left out "expressly." In the House that August, a motion to insert the word failed. The Tenth Amendment as ratified in 1791 reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Why did it matter? The Articles of Confederation had used "expressly," and under the Articles the national government could do almost nothing that was not spelled out. The Federalists believed the new government needed implied powers to carry out its express ones. Chief Justice John Marshall later relied on the omission in McCulloch v. Maryland (1819) to support implied powers. We take the whole question up in The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered and in The Necessary and Proper Clause Was Never Meant to Be a Blank Check.

The conservative lesson is subtle. The Massachusetts critics lost the word, but they won the principle: a written reservation of powers to the states and the people, placed in the text, which every court must reckon with.

How the formula spread

The ratify-and-recommend formula became the template for the close states that followed.

Without the formula, the choice in each of those states would have been all or nothing. With it, wavering delegates could vote yes while registering their concerns officially, and opponents could go home with something to show. Madison, who had once thought a bill of rights unnecessary, came to see that the recommended amendments were a debt of honor the new government owed. In June 1789 he introduced the amendments in the First Congress. The story of his change of mind is in Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach, and the full state-by-state sequence is in From Delaware to Rhode Island, the Ratification Fight State by State.

The objection: was it a trick?

The cynical reading deserves an answer. Recommended amendments, on this view, were a bribe with no binding force. Massachusetts ratified unconditionally, so the new Congress could have ignored every recommendation, and some of them, such as the limit on direct taxes, were in fact ignored. The Federalists got their votes and gave nothing enforceable in return.

That reading gets the legal point right and the political point wrong.

1. Unconditional ratification was the only lawful kind. Article VII asked each state to ratify the Constitution, not a version of it. A conditional ratification would have invited thirteen different constitutions. Massachusetts kept the union whole by keeping its yes clean.
2. The recommendations were public commitments, not private winks. They were adopted by the convention, sent with the ratification, and pressed by the state's representatives. Four of the next five states to ratify followed suit. That created a national expectation that the First Congress could not ignore.
3. The core of them was delivered. Within two years of Boston, Congress proposed amendments that included the reservation of powers, grand juries and civil juries, and the states ratified them in 1791. A bribe that pays out in under four years and is still in force more than two centuries later is a strange kind of bribe.
4. The alternative was worse. Prior amendments, demanded by the Anti-Federalists, would have sent the whole document back to a second convention with no guarantee of anything. "Yes, but" got more liberty, faster, than "no, unless."

What it means now

The Boston formula is a lesson in how a free people resolves a real disagreement. Neither side pretended the other was illegitimate. Both accepted the result of a close vote. The losers did not stop arguing; they argued through the new system, and within four years they had written their main demand into its text. That is the American constitutional method at its best: persuade, vote, accept, keep persuading.

It is also a reminder that the Bill of Rights was not handed down by the Federalists in a fit of generosity. It was demanded by citizens who distrusted concentrated power and insisted on written guarantees. Those farmers in the Long Lane meetinghouse are the reason the Tenth Amendment exists. We owe them a reading.

The case in brief

1. Massachusetts met in January 1788 with opponents likely in the majority, many of them western farmers wary of power after Shays' Rebellion.
2. Federalists won Hancock and Samuel Adams by proposing unconditional ratification together with recommended amendments.
3. The convention ratified on February 6, 1788 by 187 to 168, a margin of 19 votes, and recommended nine amendments led by a reservation of powers to the states.
4. South Carolina, New Hampshire, Virginia and New York copied the formula, and the First Congress answered it with the amendments that became the Bill of Rights.
5. The reservation of powers became the Tenth Amendment, without the word "expressly," and remains the states' written guarantee.

What you can do: read the Tenth Amendment on the site's Constitution page, then find out whether your town or county was represented at your state's ratifying convention and share what its delegates did.