You didn’t log on to the internet or switch on cable television in 1788 Boston to obtain breaking news of the Constitutional Convention in Philadelphia.
You hiked to the nearest tavern or coffeehouse to pick up a copy of the latest newspaper to learn what—in those days of rudimentary communication—passed for the latest news.
When the latest missive on the new Constitution came out in 1788, Boston’s Green Dragon Tavern would have been buzzing.
“Did you see this?” one Bostonian, a pro-Constitution Federalist, demanded as he waved a freshly printed pamphlet to catch the attention of a friend at the next table, who nearly spilled his mug of ale.
“‘Observations on the New Constitution, and on the Federal and State Conventions,’ they call it, and it’s just outrageous. It dares to claim we need something called a ‘bill of rights’ in our new Constitution! More confounded delays! Hang it all—we must adopt our new Constitution now! Blasted idlers! Pernicious! Pernicious!”
The other Federalists in the tavern murmured their assent. But none among them knew the identity of the author behind “Observations on the New Constitution.” All they knew was the pseudonym under which it had been printed: “A Columbian Patriot.”
Because Elbridge Gerry of Massachusetts had emerged as one of just three delegates who refused to sign the proposed Constitution, many logically assumed Gerry was the author.
They were wrong. Mercy Otis Warren’s mighty pen had struck again. (Not until 140 years later, through the research of one of her descendants, the legal scholar Charles Warren, was her authorship discovered.)
Her “Observations” attacked the proposed new Constitution left and right, giving voice to concerns that a new, strong, and distant federal government could trample the rights both of the individual states and of the people.
A “many-headed monster,” she called it, “of such motley mixture, that its enemies cannot trace a feature of democratic or republican extract; nor have its friends the courage to denominate it a monarchy, an aristocracy, or an oligarchy.”
Among her observations:
There are no well defined limits of the judiciary powers, they seem to be left as a boundless ocean, that has broken over the chart of the Supreme Lawgiver, “thus far shalt thou go and no further,” and as they cannot be comprehended by the clearest capacity, or the most sagacious mind, it would be an Herculean labor to attempt to describe the dangers with which they are replete…
… The executive and the legislative are so dangerously blended as to give just cause of alarm, and everything relative thereto, is couched in such ambiguous terms—in such vague and indefinite expression, as is a sufficient ground without any objection, for the reprobation of a system, that the authors dare not hazard to a clear investigation …
… There is no provision for a rotation, nor anything to prevent the perpetuity of office in the same hands for life; which by a little well-timed bribery, will probably be done, to the exclusion of men of the best abilities from their share in the offices of government—By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio, and teaches him the feelings of the governed, and better qualifies him to govern in his turn.
An overreaching judiciary. Executive orders. A permanent governing class. “Insolence of office.” Her concerns may sound familiar to us even today.
Some of her strongest rhetoric emerged when she discovered the lack of protections from unlawful searches and seizures:
I cannot pass over in silence the insecurity in which we are left with regard to warrants unsupported by evidence … such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure.
What was there in this new Constitution that would prevent officials of the new American government from overstepping the same boundaries as their British predecessors? What was the point of a revolution against the old regime if the new one had the potential to be just as bad?
To that end, she concluded: “There is no provision by a bill of rights to guard against the dangerous encroachments of power in too many instances to be named.”
She had developed the invaluable skill of losing a battle but winning a war. Warren and her “Observations” failed to convince her own state of Massachusetts to reject the Constitution, but Bay State delegates hardly rejected all her arguments.
>>> Purchase Sen. Mike Lee’s book, “Written Out of History: The Forgotten Founders Who Fought Big Government”
Massachusetts’ February 1788 vote on ratification was very close (187–168), and it succeeded only because Gov. John Hancock (himself a delegate) proposed that ratification be accompanied by clarifying amendments, including a bill of rights.
Other states voted in the wake of Massachusetts’ narrow, qualified decision. New York was a key to ratification. If it rejected the Constitution, the new nation would be geographically cut in half. The whole experiment might still fail.
Anti-Federalists, others like Mercy opposed to a strong central government, shipped 1,600 copies of her “Observations on the New Constitution” for distribution around the battleground state. In April 1788, the New York Journal published her arguments.
In the end, New York voted for ratification—but repeated the Bay State’s call for inserting highly specific guarantees of liberty into the Constitution.
New York’s memorandum supporting ratification (the longest by far of any state) echoed much of what was found in Mercy’s “Observations,” particularly her antipathy to broad-brush searches and seizures.
New York’s ratification convention declared:
That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.
Three other states supported Massachusetts’ and New York’s demands, ratifying the new compact but strongly suggesting a bill of rights. The idea came to be called the Massachusetts Compromise, after the state that first proposed it, having been influenced by Warren’s passionate plea.
That compromise—based on Warren’s work—helps guarantee our civil liberties to this day.
This excerpt was taken from Sen. Mike Lee’s latest book, “Written Out of History: The Forgotten Founders Who Fought Big Government” (Penguin Random House, 2017).
