One might think we drew the short straw. Most essays face the challenge of describing in 1000 words interpretive debates about provisions of continuing importance such as the First Amendment or Article II. Our challenge, it might be thought, is to find 1000 words to write about a provision that had its principal effect at the time of the Constitution and generated no interpretive controversy even at that time. The text of Article VII declares that the Constitution shall become the official law of the ratifying states when nine states ratified the document. When New Hampshire became the ninth state to ratify on June 21, 1788, the Constitution became good law. End of story. But actually there are a surprisingly large number of things to say about Article VII.
The controversies over Article VII that occurred during the ratification process were over the substance of the mandated ratification process, not over what the text actually mandated. Anti-Federalists and Federalists agreed on the meaning of “Ratification,” “nine” and “States.” Vermont did not count as a state much to the distress of Vermonters who declared independence in 1777, but were not represented in the Continental Congress under the Articles of Confederation.
The main dispute between Anti-Federalists and Federalists was whether the new Constitution could lawfully be ratified by nine states. Anti-Federalists pointed out that Article VII was inconsistent with Article XIII of the Articles of Confederation, which required that changes in constitutional arrangements be “agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” Article VII required agreement by only nine states, cut out the Continental Congress completely, and substituted state conventions for state legislatures. As such, critics complained, the process of ratifying the Constitution was illegal.
Federalists responded in a variety of ways. Some Federalists argued that the Constitution’s ratification process was legal, because the Articles was a treaty between the states that was no longer binding because of repeated violations. Other Federalists argued that the sovereign people were free to decide to abandon any feature of a failed constitution, even provisions for constitutional change. James Madison in The Federalist No. 40 declared, “in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases 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.’”
The Framers’ decision to substitute convention for state legislatures reflected both principle and pragmatic concerns. The decision was in part based on the principle that the Constitution should be an act of the people rather than the legislature. In particular, if the Constitution was to take priority over legislative decisions, it had to derive from a different source. Yet, the decision to employ the people did not take the modern form of a popular vote by referendum, but instead of a special convention elected by the people. In this area, as with federal legislation and constitutional amendments, the Constitution employs representational democracy rather than direct democracy. The use of state legislatures also reflected pragmatic concerns. The proposed Constitution would take power away from the state legislatures, which generated the fear that those legislatures might delay or defeat ratification of the Constitution.
The Framers’ decision to depart from the unanimity requirement of the Articles was also important. One of the biggest defects of the Articles was the difficulty the nation had in securing amendments, with a single state often blocking them. The Constitution chose instead to require ratification by nine of the thirteen states, which ensured a consensus but without allowing a small number of states, Rhode Island in particular, to block the new Constitution.
Article VII came to be viewed as having important implications for federalism and secession. Chief Justice Marshall in McCulloch v. Maryland (1819) argued that Article VII’s requirement that the Constitution be ratified by the people in convention showed that it was not a compact between the states, but an emanation of the people as a whole. The conventions occurred at the state level, according to Marshall, merely because of historical practice and convenience.
By contrast, the Confederate States interpreted Article VII differently. They viewed each state’s ratification as a decision by that state, acting through its sovereign people. When these states attempted to secede, they often did so by having a convention adopt a provision repealing their prior ratification of the Constitution under Article VII. Thus, these states viewed the Article VII ratification as an act of the people of the state that could be repealed.
The essays that follow draw different lessons from Article VII. Professor Michael Rappaport argues that Article VII greatly contributed to the desirability of the Constitution. The supermajority rule for ratification in Article VII promoted a Constitution that was supported by a consensus of the country and that included protections against the majority, including a Bill of Rights and constitutional federalism. Professor Mark Graber believes Article VII was part of a political program that prevented Americans from voting on whether constitutional structures, powers, and rights were particularly desirable. Fear of being left out of the revised United States fueled the crucial ratification rather than the merits of the Constitution.
The point of nine was to get thirteen. Article VII may declare that the Constitution of the United States was the law of the land when ratified by nine states, but both the Framers and text clearly anticipated a union of all thirteen states. Nine encouraged early ratification while preventing holdout states from extracting favorable concessions. The politics underlying Article VII highlights the importance of thinking about how constitutions are supposed to work, rather than worrying exclusively on what words meant at a particular time period.
Article VII taken literally promises a constitutional regime that the Framers agreed was “pernicious” and “destructive.” The Federalist No. 6 declares, “if these States should be . . . only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.” Nevertheless, Article VII contemplates a constitutional regime that does not include Virginia, New York, Massachusetts, and Pennsylvania, a polity bisected in two, with the southern states and New England states in, but Maryland, Delaware, New Jersey, and Pennsylvania out, or two separate nations, with either a separate confederacy composed of Virginia, North Carolina, South Carolina and Georgia or one composed of Massachusetts, Connecticut, Rhode Island, and New Hampshire.
Article VII aside, the Constitution contemplates being the constitution for all thirteen states. The Preamble begins, “We the People of the United States,” and ends, “do ordain and establish this Constitution for the United States of America.” The phrase “United States of America” is taken directly from Article I of the Articles of Confederation, which declares “The Stile of this Confederacy shall be ‘The United States of America.’” “The People of the United States” in the Preamble, thus, refers to the people of all thirteen states and not just the people of the states that ratified the Constitution.
Consider the resulting paradoxes had some states not ratified. Under Article I of the Confederation, non-ratifying states remained part of a confederacy called “The United States.” Under Article VII of the Constitution, only ratifying states composed the United States. Will the real United States please stand up? Article VII declares that the Constitution becomes the official law of the land when ratified by nine states. How did this impact Massachusetts, New York, North Carolina, and Rhode Island the moment New Hampshire ratified on June 21, 1788? Were these unattached states that did not require congressional permission to join the Union and could not be discriminated against under Article I, Section 9? Were they nations that required congressional permission to join the Union and could be discriminated against under Article I, Section 9? When did unattached states become a separate nation or separate nations? The Constitution does not say, and the point was not debated at length.
This essay is part of a discussion about Article VII with Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law. Read the full discussion here.
The Framers did not confront these paradoxes because they never contemplated a union with less than the original thirteen states. Madison defended the logic of requiring nine states for ratification by laying out the consequences if only twelve states ratified. The Federalist No. 40 declares the nine state requirement for ratification “proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth [Rhode Island].” Neither Madison nor any other Federalist defended the merits of a nine state union, which The Federalist Papers claimed would result in an unmitigated disaster.
The nine state requirement of Article VII promoted unanimous state ratification in two ways. States that ratified early got in on the ground floor for making any crucial alterations to the Constitution (the Bill of Rights) and filling in vital constitutional details (the measures establishing the cabinet and federal judiciary). States that held out could not extort better terms. Given the recognized need to be in the Union, Article VII practically guaranteed a process of increasing returns in which the ratification of each additional state increased the odds that every remaining state would ratify.
The framing politics of Article VII worked. Most state ratification debates turned on delegates’ recognition that, for reasons stated in The Federalist Nos. 3-8, their state could not afford to be one of the states initially left out should the Constitution be ratified by at least nine states. Such concerns influenced ratifying conventions in all small states, in Georgia, which needed national defense against Native American tribes, and in all state ratifying conventions that took place after momentum had clearly swung towards constitutional ratification (Virginia, New Hampshire, New York, Massachusetts, North Carolina, and Rhode Island). Crucial votes to ratify in all these conventions were provided by delegates who, after expressing serious reservations about the Constitution, concluded that the best way to change the Constitution was to work from within or that remaining outside the Constitution for any period of time was not a viable option.
Article VII was part of a political program that guaranteed that Americans from 1787 to 1789 would not have the opportunity to vote on whether the constitutional schemes for structuring the national government, allocating power, and protecting rights were particularly desirable. As historian Jack Rakove of Stanford University points out, state conventions voted on the Constitution as a whole, not on any particular provision. By early 1788, state conventions were not even voting on the relative merits of the Constitution and the Articles of Confederation. Once the Constitution acquired some momentum in early state voting, the choice Article VII imposed on most states was to ratify the Constitution immediately or at a later date under less favorable circumstances. Given these alternatives, Americans accepted the institutional arrangements, powers, and rights the Constitution enumerated. Given the same choices, they probably would have accepted the institutional arrangements, powers, and rights enumerated in the constitutions of Canada, Mexico, Chile, France, Bulgaria, Mali, Japan, and any other nation whose constitution does not establish a non-Christian religious theocracy.
Article VII is a largely forgotten constitutional provision, but it should not be, since it was key to both the Constitution’s enactment into law and its desirability.
Article VII is the provision that specified the conditions for the Constitution to become law. The document that was produced by the Philadelphia Convention was merely a proposal. It only became law when the conditions required by Article VII—ratification by nine of the thirteen states, acting through conventions—were satisfied. Article VII also indicated the legal status of non-ratifying states. The Article provides that such non-ratifying states are not bound by the Constitution and it seems clear that they would have been treated as legally independent countries. Given Article VII’s central role concerning these legal effects, we might call it the Legal Force Clause.
Article VII also had significant consequences for the Constitution’s desirability. The Article imposed a strict supermajority rule of nine of the thirteen states for ratification. This requirement was important, because there are strong reasons to believe that strict supermajority rules for a constitution’s enactment and amendment are likely to produce a desirable constitution. See John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (2013).
One beneficial feature of such supermajority rules is that they promote consensus support for a constitution. If a significant portion of the country strongly opposes the constitution, which can easily happen under a majority enactment rule, then it is unlikely to bind the nation together and may produce continuing discord. By contrast, if a constitution passes under a strict supermajority rule, the opposition is likely to be limited and the constitution can serve as a source of allegiance.
This essay is part of a discussion about Article VII with Mark A. Graber, Jacob A. France Professor of Constitutionalism, University of Maryland Francis King Carey School of Law. Read the full discussion here.
Another beneficial feature of strict supermajority rules is that they promote better decisionmaking. If a constitution can only be amended through a strict supermajority rule, as with the U.S. Constitution, then constitutional provisions should last a long time. Consequently, it will often be difficult to predict how they will operate on people in the future. This means that the provisions will be enacted behind a limited veil of ignorance, which will lead people to focus on the public interest rather than their narrow advantage. For example, if it is not clear which party will control the presidency in the future, it makes sense to decide which powers the President should possess based not on whether one predicts one’s party will control the office, but on what presidential powers will promote the public interest. Similarly, because it will often (but not always, as in the case of race) be unclear which party or group will be in the majority, there will be a strong incentive to include protections for minorities and individual rights.
These benefits of supermajority rules were not merely theoretical. The supermajority requirement for enacting the Constitution was likely the cause of some of its most desirable provisions. If a mere majority of the states could have enacted the Constitution, it is quite possible that the document would not have provided for a strong constitutional federalism. When the Constitution was being written in Philadelphia, the drafters knew that it would need to secure a significant supermajority. While a majority of the states—especially the big states—might have supported a constitution that provided states with a limited role, the convention was forced to include significant constitutional protections for states because of the need to secure ratification by a supermajority of states.
The Bill of Rights is also probably the result of the supermajority requirement. When the Constitution’s ratification was being debated, there seemed to be insufficient support to secure ratification in the nine required states. The Federalists were therefore forced to abandon their opposition to a bill of rights and to promise that the new government would enact such a bill once it was established. If the Constitution could have been ratified with a mere majority of the states, it is very possible that the Federalists could have avoided making that promise. Thus, the Bill of Rights was also likely the result of the supermajority requirement of Article VII.
It might be argued that the Constitution was the result of majority rule, because each state’s convention ratified it using a majority voting rule. But the fact that each state ratified by majority vote does not mean that the constitutional enactment process as a whole should be understood as majoritarian. That one aspect of a voting process is majoritarian does not mean that it is majoritarian overall. For example, both Representatives and Senators are elected by majority vote, but that does not mean that the proposing of a constitutional amendment by two-thirds vote in each house is majoritarian. We normally assume that a supermajoritarian voting rule at one level makes the enactment process supermajoritarian. If a mere seven states were required to ratify the Constitution, that would have been majoritarian. The nine state requirement was supermajoritarian.
In sum, there are strong arguments for concluding that the supermajoritarian enactment process was an essential ingredient for producing a desirable constitution. While today we greatly value our Constitution, it is easy to overlook that part of the reason for its excellence was the supermajority requirement written into Article VII.