The first installment in this series featured highlights from the recently-issued Volume 27 of the Documentary History of the Constitution of the United States, which covers South Carolina. The second installment featured highlights from Volume 28, which covers New Hampshire. This third and last essay examines Volume 29, which collects material from the ratification process in Vermont.
As I explained in my book, The Original Constitution: What It Actually Said and Meant, the ratification era ended on May 29, 1790, with approval of the Constitution by Rhode Island, the 13th state. In general, those seeking the original legal force of the unamended Constitution should cut off their investigation as of that date. Events after May 29, 1790 still lay in the future and could not, therefore, have been part of the ratification bargain. But I also pointed out—
to even this rule, there are minor exceptions. . . . [T]he history of the Eleventh Amendment offers an important clue as to the original meaning of the language it clarified. Another exception consists of a handful of 1790s court decisions that were uncontroversial to all but the parties themselves and confirm uncontradicted pre-1790 evidence.
The ratification proceedings in Vermont, terminating with that state’s adoption of the Constitution on January 10, 1791, mostly corroborate, rather than contradict, earlier evidence. So arguably they comprise a third exception.
They certainly are good evidence of how Vermonters understood the Constitution. And I think it is fair to resort to the Vermont proceedings to strengthen earlier, uncontradicted evidence of how other Americans understood the Constitution. But I don’t think we should use them to contradict earlier evidence of what the document meant to those outside Vermont.
Here’s why: As long as North Carolina failed to ratify, Americans were faced with the possibility of a country split in two. Because North Carolina then claimed Tennessee, if North Carolina refused to ratify, United States would have been split by a huge swathe of foreign territory extending from the Atlantic Ocean to the Mississippi River. The consequences of recalcitrance in Rhode Island were less dire—but it still would have cost the United States a thriving major sea port (Newport).
Thus, so long as North Carolina or Rhode Island remained outside the union (that is, up to May 29, 1790), the Constitution’s promoters had to be careful about how they represented the document’s meaning. Alexander Hamilton understood this. We know that prior to May 29, 1790 he was privately hoping to bring about an all-powerful central government. But in public—as in the Federalist Papersand at the New York ratifying convention—he was careful to emphasize limits on federal authority. It would have been dangerous to the future of the Union for Hamilton to advertise the broad claims of federal spending power he was to advance later in his Report on Manufactures (December, 1791). When we reconstruct how the American people and their convention delegates understood the Constitution, we should consult the earlier Hamilton of The Federalist, not the later Hamilton who authored the Report on Manufactures.
Like Rhode Island, Vermont was a state with a small population. Unlike North Carolina and Rhode Island, though, she was not particularly important to the Union—and, indeed, was not even part of the United States. Participants in the ratification debates were very unlikely to fashion their statements to the American public according to what Vermonters might think.
Anyway, back to Volume 29: The editors tell us no journal exists for the Vermont ratifying convention. But the surviving records do offer a few tidbits. Thus, a 1789 Thanksgiving Day proclamation by Governor Thomas Chitenden repeated the (then) universal distinction between “husbandry” (agriculture), “manufactures,” and “commerce.” This is still more evidence (as if any more were needed) that agriculture and manufacturing were considered outside the Commerce Clause. Additionally, the convention’s form of ratification weighs against secession theories: It states that the Constitution “shall be binding on us and the people of the the state of Vermont forever.”
However, Vermont’s most significant contribution to the ratification record may be a preserved convention speech by federalist delegate Nathaniel Chipman. Chipman was a Yale College graduate, then serving as Chief Justice of the Vermont Supreme Court. He was in active correspondence with leading Founders, such as Hamilton. He later represented Vermont in the U.S. Senate.
Chipman’s speech was unusually eloquent and thorough. Chipman explained why it was in Vermont’s interest to join the Union. He added useful comments on the Electoral College. Most importantly, he provided another list of examples of powers that (except within federal territories and enclaves) would be outside the federal sphere. Chipman’s examples are consistent with all other known lists.
Chipman told his assembled colleagues that under the Constitution the states would “retain as sovereign” the following powers:
- “to regulate the mode of acquiring, and to secure the acquisitions of property.” In other words, the federal government would have no authority to prescribe how real estate or personal property is transferred and how title is protected.
- “to redress injuries.” This corroborates other assurances that civil justice was to be primarily a state concern. As I have explained elsewhere, imposing “tort reform” on the states is outside congressional authority.
- “to animadvert upon morals.” The word “animavert” comes from the Latin verb animadvertere—literally “to turn one’s notice toward.” In Latin it can mean merely “to notice,” but in the legal context the Latin word often signifies “to punish.” What Chipman was saying in his Latin-laden 18th century English is that only the states, not the federal government, have jurisdiction over moral questions.
- “to restrain and punish those crimes that attack private property—violate personal security, and disturb the peace of society.” This is only one of several Federalist representations that traditional criminal law was to be a subject of state, rather than federal, jurisdiction.
The Federalists who, like Chipman, publicly listed powers reserved to the states were deliberately representing the Constitution’s meaning to the ratifiers and to the general public. Most of those who did so were, like Chipman, outstanding lawyers. They were not amateurs. They knew how the document should be interpreted far better than most modern writers do.
Their testimony is some of the best evidence we have as to how the Constitution divided authority between states and federal government.