The Constitution’s ratification is said to be the result of a series of illegal acts, with some revolutionary in character. And it is difficult to imagine exactly who would have pressed charges against the framers for subverting the Articles of Confederation while circumventing their own State legislatures in the process.
The Federalists, who favored increased centralization of power, were well-aware of their inability to defend the abandonment of the Confederation legally – though James Madison weakly observed in Federalist 40 that “in all great changes in established governments, forms ought to give way to substance.”
A Great Consolidation of Government
“After June 25, 1788, three States remained outside the new Union: New York, whose convention came to order in Poughkeepsie on June 17; North Carolina, whose delegates would meet in late July; and Rhode Island, to whose fate most Federalists were indifferent.
[New York anti-Federalists searched] for a formula for conditional ratification that would keep the State in the Union while preserving the right to withdraw subsequently should its amendments not be adopted. So opposed were Federalists to any form of conditional ratification that [Alexander] Hamilton even wondered whether they should agree that New York could reserve a right to “recede” from the Union should its desired amendments not be adopted . . .
Anti-Federalists insisted that North Carolina was not rejecting the Constitution outright, and they further intimated that the State would somehow remain in the Union – if not its new government – because the compact of the [Articles of] Confederation could be dissolved only with the consent of ALL its parties. Remarkably, Anti-Federalists even challenged the right of the convention to abandon the Confederation, or to substitute “We the people” as the source of federal legitimacy for “we the States.”
[James Madison’s Federalist 39 described the Constitution]: “In its foundation it is federal, not national; in the sources from which the ordinary powers of government are drawn, it is party federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”
Such distinctions hardly assured the anti-Federalists who knew that the Constitution would form the States into a new Leviathan. “We may be amused if we please, by a treatise of political anatomy,” Patrick Henry warned the Virginia ratifiers, rebutting a speech in which Madison restated this argument. “In the brain it is national: the stamina are federal – some limbs are federal – others are national.”
“But what signifies it to me, that you have the most curious anatomical description of it in its creation?” Henry asked. “To all the common purposes of Legislation it is a great consolidation of Government.”
(Original Meanings: Politics and Ideas in the Making of the Constitution, Jack N. Rakove, Alfred A. Knopf, 1997, excerpts pp. 125-126; 161-162)