Conventional Wisdom--A Commentary by Prof. Akhil Amar
(This essay was originally published in the September 18, 2005, edition of the New York Times.)
Every year, Sept. 17 to Sept. 23 is officially designated Constitution Week, celebrating the fact that during this stretch in 1787, the Philadelphia framers unveiled their handiwork. But the only thing that happened then and there was that a proposed Constitution signed by several dozen statesmen became public.
Only months later did the document actually become law, after Americans agreed to it in a series of unprecedented votes held from Georgia to New Hampshire. In that unsung ratification process, New York emerged as the decisive battleground state -- the Florida and Ohio of the 1780's.
When the Philadelphia framers floated their proposal, they knew the difficulty of the task that lay ahead. Never in history had so many people been allowed to vote on the basic ground rules of government. Even the most democratic of ancient Greek constitutions had been handed down from on high by individuals -- Athens's Solon and Sparta's Lycurgus -- rather than voted on by the citizenry. In America, ordinary citizens had not been invited to ratify the Declaration of Independence or the various state constitutions written in 1776 or the continental Articles of Confederation drafted in 1777.
In dramatic contrast, the 1787 Philadelphia proposal by its own terms would not go into effect unless at least nine out of 13 state conventions said yes. Significant too, was the state-by-state adoption of special election rules enabling ratification conventions to represent the people in an especially democratic manner. New York led the way, temporarily waiving its usual requirement that voters had to own a certain amount of property and, for the first time in its history, allowing all free male adult citizens to select convention delegates.
New York also let all freemen serve as convention delegates, regardless of whether they met the usual property requirements for serving in the State Senate. Of course by modern standards, even this voting base, which excluded slaves and women, was too narrow. Yet it was far broader than anything previously seen in New York -- or in most other places, for that matter -- and thus set a precedent for further voting expansions in later years.
New York also led the way in deciding the Constitution's fate and clarifying its central meaning. In mid-June 1788, a full nine months after its conception at Philadelphia, the Constitution was still struggling to be born. Eight states had said yes, one shy of the mark. Then, New Hampshire and Virginia voted their approval -- enough to put the document in operation, but only among the states that ratified it. At this point, all eyes turned to Poughkeepsie, where New York's ratifying convention was being held and where the Constitution's anti-Federalist opponents initially held a commanding lead. Without the acquiescence of New York -- with its critical harbors, rivers and landmass -- could the Philadelphia blueprint really work as planned?
In late July, the Poughkeepsie convention finally said yes, by a vote of 30 to 27. A switch of only two votes would have reversed the outcome.
With New York now safely on board, the document's future was assured. True, Rhode Island and North Carolina had yet to say yes, but neither state was militarily nor economically indispensable. Thus the Constitution's more perfect union initially went into effect without the two stragglers; when George Washington took his oath of office in early 1789, he did so as president of the 11 United States.
But exactly how were these states united? Did a state that said yes in the 1780's retain the right to unilaterally say no later on, and thereby secede? If not, why not?
Once again, it was in New York that the answer emerged most emphatically. At the outset of the Poughkeepsie convention, anti-Federalists held a strong majority. The tide turned when word arrived that New Hampshire and Virginia had said yes to the Constitution, at which point anti-Federalists proposed a compromise: they would vote to ratify, but if the new federal government failed to embrace various reforms that they favored, "there should be reserved to the state of New York a right to withdraw herself from the union after a certain number of years."
At the risk of alienating swing voters and losing on the ultimate ratification vote, Federalists emphatically opposed the compromise. In doing so, they made clear to everyone -- in New York and in the 12 other states where people were following the New York contest with interest -- that the Constitution did not permit unilateral state secession. Alexander Hamilton read aloud a letter at the Poughkeepsie convention that he had received from James Madison stating that "the Constitution requires an adoption in toto, and for ever." Hamilton and John Jay then added their own words, which the New York press promptly reprinted: "a reservation of a right to withdraw" was "inconsistent with the Constitution, and was no ratification."
Thus, it was New York where the document became an irresistible reality and where its central meaning -- one nation, democratic and indivisible -- emerged with crystal clarity. Move over, Philadelphia. New York, too, deserves credit this week as Americans commemorate our Constitution.
Akhil Reed Amar, professor of law at Yale, is the author of "America's Constitution: A Biography."