The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
This laconic sentence, in the last and shortest of the Constitution’s articles, was the key to the legal and political process that replaced the Articles of Confederation with the Constitution of the United States. In one stroke, Article VII expressed the Constitution’s view of the Union and echoed the Declaration of Independence’s view of the relation between positive and natural law. Seldom has so much political import been conveyed in so few words.
Behind the provision lay the delicate political problem confronting the Framers of the new Constitution: what to do about the Articles of Confederation. In 1786, the abortive Annapolis convention had issued a summons (drafted by Alexander Hamilton) requesting a new meeting of the states to consider all measures that would “render the constitution of the Federal Government adequate to the exigencies of the Union.” The Confederation Congress had renewed but narrowed that call, charging the delegates to the Constitutional Convention with “the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall . . . render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” Eight of the twelve state delegations to the Convention arrived under the former terms, and four under the latter, less elastic ones.
But now the convention was proposing to replace, not renovate, the Articles. And it was appealing not to “Congress and the state legislatures,” but over and around their heads to special ratification conventions to be elected by the people in each state. And to add insult to injury, the Framers were setting the threshold for ratification at nine states, not the thirteen necessary for constitutional revision under the Articles.
Article VII thus announced a bold new ratification procedure. It was needed because there was no chance that the one specified in the Articles would result in the Constitution’s passage. The Confederation Congress, which under the Articles had to approve amendments before sending them to the state legislatures, could not be expected to rejoice at its own extinction. The state legislatures, which would be stripped of considerable powers by the proposed plan of government (see Article I, Section 10), could not be expected to concur in their own diminishment. Experience supported these conjectures: no amendment, however minor its attempt to strengthen the general government, had ever survived the ratification process dictated by the Articles.
It was not that Article VII’s procedures were wholly unheard of: The Massachusetts Constitution of 1780, largely written by John Adams, had already pioneered the use of the popularly elected ratifying convention. Nor did Article VII entirely bypass Congress and the state legislatures. The Constitutional Convention sent its handiwork to the Confederation Congress and, in a separate resolution, requested (1) that Congress forward the proposed Constitution to the state legislatures and (2) that the legislatures call special elections for the ratifying conventions. Congress unanimously went along and the thirteen legislatures eventually complied, and their actions, historian Forrest McDonald has argued, constituted in effect “an amendment to the Articles’ amending process,” thus serving to legalize or at least regularize the Constitution’s departures from the Articles’ writ. Nevertheless, the Framers went out of their way to remove any suggestion from Article VII that the Congress (never mentioned therein) was being asked to give its approbation to the Constitution, much less that it and the legislatures were invited to debate it line by line. On the contrary, the implication was that the Congress and the state legislatures were middlemen, intended to transmit the plan to the real authorities, the popular conventions.
The political necessity of circumventing the established procedure was apparent to almost everyone. The Virginia Plan at the Constitutional Convention had called for the ultimate decision on ratification to be made by popular conventions, not by the state legislatures. James Wilson, early in the Convention, had urged that a “partial union” of consenting states not be held hostage to “the inconsiderate or selfish opposition” of a few states. Nonetheless, the plan’s opponents objected, in Elbridge Gerry’s words, to “the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the Articles of Confederation.”
Yet the case for superseding the Articles’ strictures was not so “slight.” There were important republican principles at stake. As James Madison argued in The Federalist No. 40, “in all great changes of established governments forms ought to give way to substance” because “a rigid adherence . . . to the former, would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness. . . . ’” In The Federalist No. 43, Madison noted that the Framers were “recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”
In short, to save the Revolution and its principles, and to vindicate the Declaration of Independence, it was necessary to set aside the Articles of Confederation. The way from a flawed confederation to “a more perfect Union” involved a return to first principles. This was the very sort of return and renewal—of “revolution,” in the sense of coming back around to the starting point— contemplated in the Virginia and Massachusetts bills of rights. During the ratification debates, the Constitution’s advocates focused their arguments, therefore, on the defects of the Confederation. The more numerous and deep-seated its flaws, the less it deserved the veneration it was manifestly not receiving.
Among its shortcomings, none was more telling than its departure from the republican standard in respect of its own ratification. In many states, the Articles had been ratified by the legislature only; the people themselves had not been consulted. In conflicts between acts of the states and Congress, the republican presumption thus often went to the former. To repeat the mistake by asking the state legislatures to ratify the proposed Constitution would vitiate the new government before it had begun. At the Convention, James Madison admitted that the new plan would make “essential inroads on the State Constitutions,” but pointed out that asking state legislatures to ratify the new Constitution would in effect promulgate “a novel and dangerous doctrine” that a legislature could change the constitution “under which it held its existence.”
To the Anti-Federalists, these objections were beside the point. In their view, the Articles had not needed full-blown popular ratification because they were precisely not a constitution. The Articles were more like a treaty among sovereign powers. The Federalists regarded this point as a confession of the Confederation’s “imbecillity.” Madison, in a striking passage at the convention, explained that “the difference between a system founded on the Legislatures only, and one founded on the people, [is] the true difference between a league or treaty, and a Constitution.” In the former, there were no real questions of constitutionality; only in the latter case, when a law violated “a constitution established by the people themselves,” would judges consider an “unwise or perfidious” measure “null & void.”
In a treaty under the law of nations, Madison continued, “a breach of any one article by any of the parties, frees the other parties from their engagements.” He implied that the state governments’ frequent violations of their obligations to the Confederation had already come close to dissolving (in the Articles’ words) their “firm league of friendship,” and with it the obligation to abide scrupulously by its amendment provisions. In “a union of people under one Constitution,” by contrast, “the nature of the pact always has been understood to exclude such an interpretation.” As the supreme law of the land, ordained and established by “We the People,” the Constitution would be obligatory on the states.
Article VII’s bold dismissal of the Confederation’s rule of unanimity emphasized the break still further. The number nine had been proposed in the convention by Edmund Randolph. It was, he said, a “respectable majority of the whole” and had the advantage of being familiar from “the constitution of the existing Congress,” which required nine votes (a traditional supermajority of two-thirds, rounded up) in order to approve any important question. Other numbers had been considered, but anything short of thirteen signified the same thing, that the United States was no longer a treaty organization of sovereign or virtually sovereign states, but a people with a government in which constitutional majorities would be empowered actually to govern. The republican cause would be rescued from embarrassment and paralysis: twelve states could no longer be denied by a thirteenth, the majority would not be ruled by the minority, and the virtuous would not be beholden to the vicious.
At the same time, however, the Constitution’s ratification by conventions in at least nine states would establish the new government only “between the states so ratifying the Same.” There were limits to the nationalism contemplated by the plan. The people of the United States could not compel constitutional change on the states choosing to be disunited. In this respect, as in others, the Constitution recognized and granted to the states considerable sovereignty or jurisdiction in their own spheres. Once the people of a state agreed to ratify the Constitution, it agreed in effect to amend its own state constitution to align it with the supreme law’s new distribution of powers and duties, and henceforth to subordinate itself to that supreme law. The best description of the new arrangement is probably Madison’s, who in The Federalist No. 39 famously pronounced it “neither a national nor a federal Constitution, but a composition of both.”
The number of nine states to ratify was also emblematic of the Constitution’s requirement that three-quarters of the states were needed to approve amendments. The high supermajority number in each case allowed for each generation to develop a wide consensus on what the fundamental compact of the Union should become.
In the event, New Hampshire became the ninth state to ratify, and the Confederation Congress, still very much in existence, began to take steps to put the new Constitution into operation. This was in keeping with the resolutions of the Constitutional Convention that had accompanied the proposed Constitution to Congress. Virginia and New York quickly ratified as well, creating a union of eleven states. In September 1788, the Congress passed a resolution authorizing the appointment of presidential electors in the ratifying states by January 1789, the first presidential vote by the electors in February, and the commencement of proceedings under the new Constitution on March 4, 1789. North Carolina rejected the Constitution and did not reverse itself until November 1789. Rhode Island, which did not participate in the Constitutional Convention and refused at first to call a ratifying convention, held out until May 1790.
One effect of Article VII, which allowed the Constitution to proceed despite the holdout states, was to induce those states to come aboard. They, least of all, wished to confront the delicate question of what would become of them if they remained permanently outside the Union. In its wake, Article VII left a minor controversy over when exactly the Articles of Confederation had expired, which the Supreme Court addressed in Owings v. Speed (1820). The Court ruled that Congress had effectively dissolved “by the successive disappearance of its members” in November 1788, and that, legally speaking, it had breathed its last on March 2, 1789, the day before the new Congress had been directed to assemble. Some scholars dispute the accuracy of the Court’s holding in Owings and suggest that the Constitution came into effect in stages after the ratification. But all agree that the nature of the new federal Congress was entirely different from what had gone before. Unlike the old Congress, essentially the meeting place of a league based on states’ rights, the new Congress was a creature of the Constitution, based on what Madison called “the supreme authority of the people themselves.” That is the ultimate significance of Article VII.
Vasan Kesavan, When Did the Articles of Confederation Cease to Be Law?, 78 NOTRE DAME L. REV. 35 (2002)
Gary Lawson & Guy Seidman, The First ‘Establishment’ Clause: Article VII and the Post-Constitutional Confederation, 78 NOTRE DAME L. REV. 83 (2002)
Gary Lawson & Guy Seidman, When Did the Constitution Become Law?, 77 NOTRE DAME L. REV. 1 (2001)
John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 GEO. L.J. 1693 (2010)
Owings v. Speed, 18 U.S. (5 Wheat.) 420 (1820)