Observations on the New Constitution, and on the Federal and State Conventions, Part VII: Anti-Federalism, contd.

The critical commonality among the writings of the Anti-Federalists and Mercy Otis Warren’s Observations is manifested once again in their shared calls for a second constitutional convention to be summoned in order to remedy the defects they perceived in the new federal charter. Twice in section eighteen of Observations, Warren expressed fervent hope for a second convention in the belief that a calm reconsideration of the text of the proposed constitution was preferable to a forced standoff between its supporters and its critics. “Let us still hope for a happy termination of the present ferment,” she wrote, whereby,

Every influential character through the States, make the most prudent exertions for a new general Convention, who may vest adequate powers in Congress, for all national purposes, without annihilating the individual governments, and drawing blood from every pore by taxes, impositions and illegal restrictions.

In addition to once more drawing upon a fear common to the Anti-Federalist critique (the “annihilation” of the state governments), Warren directed attention in this passage to several other flaws she and her cohort detected in the Framers’ proposed federal charter. By declaring a wish to see a second convention “vest adequate powers on Congress” rather than permit them to remake the federal legislature entirely (as the proposed constitution had done), Warren ostensibly identified a desire to preserve the Articles of Confederation and the government they created. This doubtless coincided with her suspicion of the Framers’ unilateral decision to cast off their original mandate to simply modify the Articles, as well as her desire to preserve the independence of the individual states (which, under the Articles, enjoyed a high degree of autonomy). In addition, calling attention to the manner in which the new federal government would inevitably – she believed – visit upon the states and the American people “taxes, impositions and illegal restrictions” demonstrated her disdain for many of the coercive powers the proposed constitution granted to Congress as a means of controlling or channelling the actions of the various states. Whereas the Framers believed that such measures were essential to their overall aim of creating a more stable, activist federal government, Warren seemed otherwise convinced that these powers needed to be done away with by a second constitutional convention.

            Further on in section eighteen of Observations, Warren reiterated her call for a second convention, in this case from within the context of the ongoing process by which the proposed constitution was being ratified by the various states. As discussed previously, Observations was almost certainly written at some point between February 6^th and April 26^th, 1788. The Massachusetts ratifying convention, which approved the Constitution, concluded on the former date, while the Maryland convention, which Warren indicated had yet to take place, ended on the latter. Thus, at the time she put pen to paper, there were seven states – New Hampshire, Rhode Island, New York, Virginia, North Carolina, South Carolina, and Maryland – that had yet to decided either to reject or approve the new federal charter the Framers had drafted. If these states, she wrote, were to,

Refuse a ratification, or postpone their proceedings till the spirits of the community have time to cool, there is little doubt but the wise measure of another federal convention will be adopted, when the members would have the advantage of viewing, at large, through the medium of truth, the objections that have been made from various quarters [.]  

A second constitutional convention, she thereby reasoned, was both inevitable and desirable: the former because it was the only real solution to a deadlock between the states over ratification; the latter because it would allow the objections put forward by the various Anti-Federalist critics of the new federal charter to be duly taken into account. “Such a measure,” she accordingly concluded, “Might be attended with the most salutary effects, and prevent the dread consequences of civil feuds.”

            Yet another examination of the text of the various Anti-Federalist Papers reveals further similarities between the sentiments expressed therein and those promoted by Mercy Otis Warren in Observations. Anti-Federalist No. 18, for instance, from the pen of the anonymous Old Whig, was in agreement with Warren as to the wisdom of calling for a second constitutional convention. Whereas she believed, however, that such a measure was at least partially made necessary by the threat of conflict between the states, the Old Whig seemed to adopt a more pragmatic tone. Unlike those who considered a second convention to be a waste of time, the summoned delegates being thought unlikely to agree on what changes, if any, to make to the proposed constitution, the author of No. 18 regarded the effort as the most practical outcome. “If a new convention cannot agree upon any amendments in the constitution,” he wrote, “Which is at present proposed, we can still adopt this in its present form[.]” Rather than represent another constitutional convention as a dire necessity, the Old Whig characterized the possibility as, “At least worth trying,” adding that he would be, “Much astonished, if a new convention called together for the purpose of revising the proposed constitution, do not greatly reform it...” This seems a significantly more relaxed evaluation than that put forward by Warren, who did not seem averse to using a degree of fear as a means of motivating her audience. Yet, for all the Old Whig’s “it’s worth a shot” nonchalance, his core conviction, that a reform of the proposed constitution should be attempted and that the result would likely be for the better, was very much of a kind with the views Warren expressed in Observations.

            The Old Whig repeated his calm assessment of the need for a second constitutional convention in Anti-Federalist No. 50, this time with an added emphasis on the necessity of congressional approval. Once the various state conventions had finished their work and compiled lists of objections or potential amendments, he argued that the next logical step was to, “Transmit them to congress, and adjourn, praying that congress will direct another convention to be called from the different states [.]” By including Congress in the (re)drafting process, the Old Whig seemed to concur with Warren’s (and other Anti-Federalists’) assessment of the troubling lack of legitimacy surrounding the Philadelphia Convention. Allowing the duly recognized government of the United States under the Articles of Confederation to take the lead in a theoretical second convention would presumably have helped alleviate any lingering suspicions as to the validity of the drafting process, or so the Old Whig doubtless hoped. Indeed, this proposal would seem to strike an interesting compromise between acknowledging that the manner in which the proposed constitution was created was perhaps not wholly legal, while also admitting that the document itself was not entirely without merit.

            In spite of his apparent agreement with at least a portion of Warren’s argument, however, the Old Whig still proved himself to be more accepting of the proposed constitution than she and her various Anti-Federalist contemporaries. Though he called for a second convention in No. 50, he also admitted, as he had in No. 18, that if no new amendments or alterations could be agree upon it would still have been possible to accept the document as it had been originally proposed. Indeed, he argued that all parties involved in the congressionally-sponsored alteration process he proposed must agree, “To abide by whatever decision shall be made by such future convention on the subject whether it be to amend the proposed constitution or to reject any alterations, and ratify it as it stands.” Some among the Anti-Federalists – perhaps Mercy Otis Warren as well, though she did not say so one way or the other – would surely have found this a disagreeable conclusion. Rather than accept the original draft of the proposed constitution in the event that no alterations could be agreed upon, many of that documents’ critics would have likely preferred the thing be scrapped altogether. In this sense the Old Whig was something of a moderate among the Anti-Federalists; concerned with the flaws he 

perceived in the new federal charter, but above all seeking accommodation rather than confrontation.

            The aforementioned Melancton Smith appeared to be in closer agreement with Warren and the more alarmist Anti-Federalist than with the Old Whig, though he too expressed himself in somewhat understated language. “It cannot be denied,” he wrote of the proposed constitution in Anti-Federalist No. 85,

But that the general opinion is, that it contains material errors, and requires important amendments. This then being the general sentiment, both of the friends and foes of the system, can it be doubted, that another convention would concur in such amendments as would quiet the fears of the opposers, and effect a great degree of union on the subject? — An event most devoutly to be wished.

Though he did not decry the “annihilation” of the state governments as Warren and certain of her colleagues were wont to do, and nor did he explicitly summon the spectre of impending civil war between supporters and critics of the new federal charter, the nature of Smith’s desire for a second convention seemed to take in many of the same concerns. He described, for instance, reactions to the proposed constitution in terms of “friends and foes,” and stated his belief that a second constitutional convention would result in the addition of amendments fit to “quiet the fears of the opposers [.]” However discreetly he chose to phrase them, Smith’s anxieties were expressed in No. 85 in a distinctly adversarial way. That he further asserted that the consensual modification of the new federal charter would “effect a great degree of union on the subject” seems to confirm his evident sense of apprehension at the social cleavages the document had unleashed, or threatened to unleash, in the United States. Though, once again, Melancton Smith saw fit to express himself in a somewhat more moderate manner than Mercy Otis Warren, the concerns that he felt necessitated the calling of a second constitutional convention were essentially aligned with her own.

            Indeed, as this (relatively) brief series of comparisons has hopefully shown, many of the concerns that motivated the various Anti-Federalists to pen an essay or a critique of the proposed constitution were fundamentally the same as those that moved Mercy Otis Warren to publish her own Observations. She may not have expressed herself in the same manner as her male counterparts – though, for that matter, no two of them adopted quite the same rhetorical voice – but the flaws they perceived in the Constitution were the flaws that she perceived, the remedies that they sought were those that she sought, and she was likewise no stranger to the oft-times exaggerated sense of alarm that they frequently displayed. Many of the Anti-Federalists – Philanthropos, Centinel, the Farmer, and the Federal Republican – invoked the sacrifices that had been made during the years of the Revolutionary War, the blood and treasure, as a means of chastising supporters of the proposed constitution. What was the point of incurring such losses in a battle against a foreign tyranny, they argued, if there were those in America who desired to create a domestic tyranny to replace it? Warren was of this sentiment as well. She made use of frequently visceral language to draw attention to the nobility she believed was inherent in the American struggle for liberty, and the tragedy that would have transpired had this same liberty been cast aside out of fear or ignorance.

            Warren was likewise in agreement with those Anti-Federalist commentators – Robert Yates, Samuel Bryan, and Richard Henry Lee – who expressed suspicion at the manner in which the Philadelphia Convention had conducted its business. They wrote of contrivers and conspiracies, demagogues, artful men, and covert instigations. How could the Philadelphia Convention, they demanded, or the proposed constitution it put forward be considered expressions of the popular will if the former had been conducted under a veil of secrecy? Had not the selfsame delegates usurped the power of their states by abandoning their original commission and entering into a scheme to reshape the federal compact? Warren very much shared these concerns. She regarded the secrecy that had ruled the proceedings in Philadelphia in 1787 as, “Contradictory to the first principles which ought to govern mankind [,]” and further claimed that the behavior of the Framers bore, “Evident marks of fraudulent designs [.]” Beyond the substance of the Constitution itself, about which they had much to say besides, the Anti-Federalists took issue with the manner in which the document had been conceived. Mercy Otis Warren was similarly concerned, and expressed her disappointment and suspicion in Observations in terms her male counterparts would have had no difficulty recognizing.

            The concerns Warren shared in Observations about the proposed constitution and the debate that had arisen in its wake further aligned with those put forward by several of the Anti-Federalists on the subject of a theoretical second convention. The Plebian (Melancton Smith) and the Old Whig both expressed a degree of apprehension as to the divisive effects the new federal charter had begun to exert. In spite of the many and various flaws most agreed the document possessed, the ratifications process had yet resulted in a spate of approvals. If, in light of the criticisms put forth by certain essayists and commentators, a significant number of state conventions chose to reject the proposed constitution, what was to be the result? How could the division between supporters and dissenters be reconciled in a way that was fair to all involved? A second constitutional convention was the solution they settled upon, so long as it was mutually agreed on, openly conducted, and entered into in good faith. Mercy Otis Warren was, once more, in substantial agreement. She too perceived in the ongoing ratification debate a presage of potentially disastrous civil conflict, and accordingly hoped for a, “Happy termination to the present ferment” by calling forth a second convention to consider the defects in the new federal charter that had lately been exposed. This, she believed, was a “wise measure” whereby the assembled delegates, “would have the advantage of viewing, at large, through the medium of truth, the objections that have been made from various quarters [.]” Though not all Anti-Federalists commentators and essayists held that calling a second convention in order to modify the proposed constitution was the best course of action – indeed, some would no doubt have preferred to drop the whole business – there were those for whom this seemed the most logical solution, and the most likely to produce a mutually desirable outcome. Mercy Otis Warren was of this opinion herself, and said as much in her Observations.

    Taking all of the similarities detailed above in hand, between the commentaries of the Anti-Federalists and the views expressed by Mercy Otis Warren in her own anti-constitutional essay, it seems fairly clear that Warren was in every way that counted the equal and contemporary of her male counterparts. Though she is not generally counted among the Anti-Federalists, her arguments were as sharp as theirs, as incisive, and as cunningly and effectively delivered. She was not the outsider her gender might indicate to a 21^st century audience, but rather a full, capable, and enthusiastic participant in one of the primordial political debates that fundamentally shaped the United States of America. Her perspective was not that of a disadvantaged or sidelined minority, struggling to be heard. She wrote with authority, ingenuity, and passion about the same issues that concerned the many men who have since taken their place among the annals of the Anti-Federalists. She was every bit the political animal they were; concerned for the rights of her countrymen, suspicious of assumed authority, and eager to do justice to the memory of all those who had given their lives in service of American liberty. Indeed, so indistinguishable is the quality and substance of Warren’s commentary from that of her male colleagues that, until fairly recently, authorship of Observations was almost universally ascribed to future Massachusetts Governor and Vice-President Elbridge Gerry (1744-1814). Observations should, therefore, be thought of as kindred to the Anti-Federalist Papers, ought to be counted be among their number, and under no circumstances is to be singled out because its author was a woman.