The Ratification Clause

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

—John P. Kaminski

Introduction

When the Constitutional Convention met in May 1787, the procedure for ratification of its proposal was a serious concern. Article XIII of the Articles of Confederation stipulated that amendments needed to be approved by Congress and then “confirmed” by all of the state legislatures. Believing that such a procedure was improbable, the Convention delegates debated and devised a unique procedure for ratification that became the last and shortest article of the Constitution.

Adoption of State Constitutions After Independence

Americans had a long history of written constitutions that provided for the organization and operation of their governments. Before independence, every American colony had a charter granted either by an English monarch or by a proprietor who owned the land, such as William Penn. During the Revolutionary era, Americans wrote more than a dozen state constitutions and many amendments to these constitutions.¹ All but one of these constitutions were declared to be operational by the bodies that wrote them.² The exception was Massachusetts. In 1780, the proposed Massachusetts constitution was submitted to the people in town meetings that were followed by a ratifying convention that tabulated the towns’ votes and declared the constitution adopted.³ This uniquely American procedure, which New Hampshire followed in adopting its second state constitution in 1783,⁴ set a precedent for future American constitutions.

In May 1776, two months before the Declaration of Independence was signed, the Second Continental Congress resolved that the provincial legislatures should “adopt” new constitutions “under the authority of the people” instead of the Crown that would “best conduce to the happiness and safety of their constituents in particular, and America in general.”⁵

Ratification of the Articles of Confederation

In response to Virginia’s June 7, 1776, call for independence, Congress created three committees—one to draft a declaration of independence, one to seek foreign assistance, and one to draft articles of union. For almost a year and a half afterward, the Second Continental Congress intermittently debated a form of government for the new country.

Congress submitted the Articles of Confederation to the states in November 1777, providing that it needed to be adopted by all of the state legislatures.⁶ The New England states submitted the Articles to the people in town meetings, which then instructed their state legislators to ratify.⁷ All of the legislatures formally adopted the Articles, submitted their forms of ratification to Congress, and instructed their delegates to Congress to sign the Articles “on the part and behalf of” their particular states.⁸ It took three and a half years to achieve this mandatory unanimity: The Maryland legislature adopted the Articles on February 2, 1781, and its delegates to Congress signed the Articles on March 1, 1781.⁹

Amendments to the Articles of Confederation

Article XIII of the Articles of Confederation provided that alterations needed to “be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.”¹⁰ Several state legislatures also submitted proposed amendments with their ratifications of the Articles. For instance, the New Jersey legislature proposed nine amendments, the second of which gave Congress the exclusive power to regulate the trade of the United States with foreign countries. Congress rejected all of New Jersey’s proposed amendments on June 25, 1778. Indeed, Congress rejected all of the states’ proposed amendments.

Between 1781 and 1785, Congress proposed several amendments itself. In February 1781 and April 1783, Congress proposed that it should have the power to levy a five percent impost on foreign importations to be earmarked to pay the Revolutionary War debt. In April 1783, Congress proposed that federal expenses should be apportioned among the states based on population with three-fifths of the slaves being counted in this apportionment. However, no amendment was adopted by all of the state legislatures. Other amendments introduced in Congress also never received its approval—including seven that would have remedied some of the most serious defects of the Articles.¹¹ The first would have given Congress the exclusive power to regulate foreign commerce and levy imposts on foreign importations. The sixth proposed the creation of a federal judiciary. In August 1786, these amendments died in Congress as a result of sectional animosities caused by the negotiations between the United States and Spain over the right of Americans to navigate the Mississippi River.¹²

In view of the repeated failure to adopt amendments, the Virginia legislature in January 1786 appointed eight commissioners to meet in a convention of the states “to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony.”¹³ The commissioners, who were scheduled to meet in Annapolis, Maryland, in September 1786, were “to report to the several States such an act . . . as, when unanimously ratified by them,” would increase Congress’s power to regulate commerce.¹⁴ After the arrival of commissioners from only five states, nationalist-minded commissioners such as Alexander Hamilton of New York and James Madison of Virginia seized the initiative. They wrote a report that they sent to Congress and the states calling for another convention to meet in Philadelphia in May 1787 “to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal Government adequate to the exigencies of the Union.”¹⁵

Several states appointed delegates to this proposed convention before Congress acted. On February 21, 1787, without reference to the Annapolis Convention’s report, Congress finally resolved that the states should appoint delegates to a convention to meet in Philadelphia. The resolution provided that the convention was called “for 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 when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the Union.”¹⁶

The Constitutional Convention

On May 29, 1787, at the start of the Constitutional Convention, Governor Edmund Randolph submitted the Virginia Plan. It provided that Congress first approve the proposed Constitution and then submit it to the state legislatures, which in turn should call state conventions to consider ratification.¹⁷ On June 5, Roger Sherman of Connecticut objected to this procedure. Instead, he would use the amendment procedure in the Articles of Confederation.¹⁸ Madison opposed ratification by state legislatures and argued philosophically that the Constitution needed to be adopted directly “by the supreme authority of the people themselves.”¹⁹ Elbridge Gerry of Massachusetts was “afraid of referring the new system” to the people who, in New England, “ha[d] at this time the wildest ideas of Government in the world.”²⁰

From a practical political perspective, Rufus King of Massachusetts favored ratification by conventions because it was simply easier. All but two state legislatures (Pennsylvania and Georgia) were bicameral as opposed to single-bodied conventions.²¹ Furthermore, state legislatures would be reluctant to approve a constitution that would reduce their powers. Pierce Butler of South Carolina also preferred conventions because state legislators had taken oaths to support their governments, and the new Constitution was expected to diminish the powers of the state governments.²² James Wilson of Pennsylvania wanted ratification by a simple majority of the states.²³ States that did not initially ratify could join the Union subsequently. Charles Pinckney of South Carolina suggested that nine states should be sufficient for ratification.²⁴

On June 12, the Convention approved the Virginia Plan’s ratification provisions by a vote of six states to three with two states divided.²⁵ Three days later, William Paterson introduced the New Jersey Plan, which included the Articles’ amendment procedure.²⁶ Under this procedure, the unanimous approval of the state legislatures was necessary to adopt any alterations in the Articles.²⁷

On July 23, when debate on the ratification procedure resumed, George Mason of Virginia and Nathaniel Gorham of Massachusetts favored ratification through conventions.²⁸ Oliver Ellsworth of Connecticut and Gerry favored ratification through legislatures.²⁹ Hugh Williamson of North Carolina then proposed that each state legislature should decide what method its state would use.³⁰ Alternatively, Gouverneur Morris of Pennsylvania proposed that one general convention of the states “chosen & authorized by the people” should “consider, amend, and establish” the Constitution.³¹ No delegate seconded Morris’s proposal. The Convention then voted nine states to one that the Constitution be submitted to the Articles of Confederation Congress, which after approving it would send it to the state legislatures for submission to conventions.³²

On August 30, the Convention considered how many states would be necessary to adopt the Constitution. Wilson again proposed that seven of the thirteen states (a majority) would be “sufficient for the commencement of the plan.”³³ Morris suggested that a greater number of states be required if they were not contiguous.³⁴ Roger Sherman felt that “ten States at least ought to be made necessary.”³⁵ Randolph said that nine states would provide “a respectable majority of the whole” and was “familiar” because the Articles required the approval of nine states for the adoption of several important matters such as declaring war, borrowing money, and ratifying treaties.³⁶ Wilson now suggested “eight as preferable.” Butler favored nine, revolting “at the idea, that one or two States should restrain the rest from consulting their safety.”³⁷ (Several amendments to the Articles had failed of ratification even though they had been ratified by all but one or two of the 13 state legislatures.) Daniel Carroll of Maryland and Rufus King supported all thirteen states for approval because the Constitution otherwise would “operate on the whole though ratified by a part only.”³⁸

The next day, King proposed that the Constitution should be implemented only among the states that actually adopted it, which was approved by a vote of nine states to one.³⁹ Morris then revived Williamson’s proposal allowing each of the state legislatures “to pursue their own modes of ratification.”⁴⁰ A vote on requiring all thirteen states to ratify was rejected unanimously except for Maryland.⁴¹ A proposal for a ten-state requirement was defeated seven states to four, and a vote for nine states was approved eight to three.⁴² Then, on motion of Morris and Pinckney, the Convention agreed by a vote of eight to three to delete the requirement that Congress must approve the Constitution before it was transmitted to the states.⁴³ This feature was known as congressional approbation.

On September 10, Gerry objected to the omission of congressional approbation. He would have required the Confederation Congress to approve the Constitution. Otherwise, he said, there was “an annulment of the confederation with so little scruple or formality.”⁴⁴ Thomas FitzSimons of Pennsylvania felt that congressional approbation had been stricken “in order to save Congress from the necessity of an Act inconsistent with the Articles of Confederation under which they held their authority.”⁴⁵ After all, the Articles of Confederation required unanimous consent of all the states to propose a new form of government.

Hamilton wanted congressional approbation but thought that each state convention should decide whether nine states were sufficient to “take effect among the nine ratifying States.”⁴⁶ Nathaniel Gorham strenuously opposed Hamilton’s proposal.⁴⁷ Randolph then vowed that he would not sign the Constitution unless the state conventions should “be at liberty to offer amendments to the plan,” which “should be submitted to a second General Convention, with full power to settle the Constitution finally.”⁴⁸ A proposal by Hamilton to require congressional approbation with implementation among nine ratifying states was rejected by a ten-to-one vote.⁴⁹

The Convention then unanimously agreed that Congress would not have to approve of the Constitution, which would be implemented among the adopting states after ratification by nine state conventions.⁵⁰ These features were added at the end of the Constitution in Article VII. On September 17, the Convention passed a resolution under which the Constitution would be presented to Congress and then submitted by Congress to the state legislatures, which in turn would call conventions to be elected by the people. The conventions “assenting to, and ratifying” the Constitution were then to notify Congress of their action.

The Constitution Before the Confederation Congress

On September 18, Convention Secretary William Jackson left Philadelphia carrying the Constitution to Congress in New York City. The Constitution was read in Congress on September 20 and assigned for debate six days later. Congress considered the Constitution for three days between September 26 and 28, primarily debating two issues.

The first issue debated was whether Congress would give the Constitution its approbation when transmitting it to the states.⁵¹ Anti-Federalists in Congress, such as Nathan Dane of Massachusetts and Richard Henry Lee of Virginia, wanted to specify in the transmittal that the Constitutional Convention had violated the Articles of Confederation and Congress’s February 21 resolution calling the Convention.⁵² With a large majority, Federalists like James Madison and Nathaniel Gorham wanted to send the Constitution to the states with Congress’s approbation or at least without any derogatory comments.

The second issue was whether Congress could propose amendments to the Constitution. Richard Henry Lee led Anti-Federalists in proposing amendments that included a bill of rights that should be appended to the Constitution.⁵³ Federalists, wanting to avoid the appearance of any opposition, agreed to a compromise by which the Constitution was to be sent to the states without congressional approbation and all signs of debate (including Lee’s amendments) were to be stricken from Congress’s journal.⁵⁴

The transmittal resolution of September 28, 1787, began with the words “Resolved Unanimously,” thus implying that Congress had unanimously approved the Constitution. George Washington, responding to James Madison’s account of the congressional proceedings, wrote adroitly that “This apparent unanimity will have its effect.—Not every one has opportunities to peep behind the curtain.”⁵⁵

The Ratification Debates

Throughout the public debate over the Constitution, the provision for ratification by the approval of nine state conventions was often considered.⁵⁶ Anti-Federalists criticized the ratification procedure provided in Article VII strongly and repeatedly. Richard Henry Lee, Elbridge Gerry, Luther Martin, and Patrick Henry condemned the abandonment of Article XIII’s amendment provision as a violation of Congress’s February 21, 1787, resolution and the instructions that delegates had received from their state legislatures. John Quincy Adams, who opposed the Constitution before his home state of Massachusetts ratified it in February 1788, viewed the ratification process as “an open and bare-faced violation of the most sacred engagements which can be formed by human beings. It violates the Confederation.”⁵⁷

Federalists justified abandonment of the Articles’ amendment provision both because of the impossibility of achieving a unanimous endorsement of any change and because they preferred to seek the direct approval of the people through state conventions. In Federalist No. 22, Madison argued against the minority controlling government action as well as the inefficacy of basing the existence of any government on the approval of state legislatures instead of the will of the people. By resting on the approval of state legislatures, the Articles of Confederation could also be repealed by state legislatures. Consequently, it was necessary to lay the “foundations of our national government deeper than in the mere sanction of delegated authority.” Rather, “the fabric of American Empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority” as expressed by the approval of the people in state ratifying conventions.⁵⁸

On June 21, 1788, the New Hampshire convention became the ninth to ratify the Constitution.

1. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (2d ed. 2001). ↩︎
2. Id. ↩︎
3. Samuel Eliot Morrison, A History of the Constitution of Massachusetts (1917). ↩︎
4. 28 DHRC xli–xlii. ↩︎
5. 4 J. Cont. Cong. 342, 358 (May 10 & 15, 1776). ↩︎
6. 1 DHRC 93. ↩︎
7. Id. at 102, 109. ↩︎
8. Id. at 94. ↩︎
9. Id. at 135. ↩︎
10. Id. at 93. ↩︎
11. Id. at 163–68. ↩︎
12. Id. at 163–64. ↩︎
13. Id. at 176–81. ↩︎
14. Id. at 180. ↩︎
15. Id. at 184. ↩︎
16. Id. at 187. ↩︎
17. 1 Farrand’s 22. ↩︎
18. Id. at 122. ↩︎
19. Id. at 122–23. ↩︎
20. Id. at 123. ↩︎
21. Id. ↩︎
22. Id. at 128. ↩︎
23. Id. at 123. ↩︎
24. Id. ↩︎
25. Id. at 214. ↩︎
26. Id. at 242–45. ↩︎
27. Id. at 250. ↩︎
28. 2 Farrand’s 88, 90. ↩︎
29. Id. at 89–91. ↩︎
30. Id. at 91. ↩︎
31. Id. at 93. ↩︎
32. Id. at 93–94. ↩︎
33. Id. at 468. ↩︎
34. Id. ↩︎
35. Id. at 468–69. ↩︎
36. Id. at 469. ↩︎
37. Id. ↩︎
38. Id. ↩︎
39. Id. at 475. ↩︎
40. Id. ↩︎
41. Id. at 477. ↩︎
42. Id. ↩︎
43. Id. at 478. ↩︎
44. Id. at 559–60. ↩︎
45. Id. at 560. ↩︎
46. Id. ↩︎
47. Id. ↩︎
48. Id. at 560–61. ↩︎
49. Id. at 562–63. ↩︎
50. Id. at 563, 579. ↩︎
51. 1 DHRC 327–40. ↩︎
52. Id. at 327–30. ↩︎
53. Id. at 337–39. ↩︎
54. Id. at 339–40. ↩︎
55. 13 DHRC 358. ↩︎
56. Carlos E. Gonzalez, Representational Structures Through Which We the People Ratify Constitutions: The Troubling Original Understanding of the Constitution’s Ratification Clauses, 38 U.C. Davis L. Rev. 1373 (2005). 14 DHRC 223 (emphasis in original). Id. at 444. ↩︎
57. 14 DHRC 223 (emphasis in original). ↩︎
58. Id. at 444. ↩︎