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.