Guest Essayist: Dan Morenoff, Attorney
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
We often conflate the history of our country and our constitution, as if the United States of America burst forth, full-grown, from the head of Zeus at ratification in 1789. To understand what’s important about Article VII of the Constitution, though, you need to think about the government that existed before and authorized the convening of the Constitutional Convention. Article VII is how the Founders changed the rules in the middle of the game to overstep their authority and remake the nation in ways the Articles of Confederation were designed to prevent.
The United States of America had existed as an independent nation for 13 years before ratification; even before that, the Continental Congress had convened for an additional 3 years – had it not, there would have been no organ of the United States capable of declaring our independence. We had 14 Presidents before George Washington, 7 of whom were President under the nation’s first written Constitution, the Articles of Confederation. And, throughout those years, the body that met, with the power to act for America, was the united States in Congress assembled.
It was this Congress that called what became the Constitutional Convention in Philadelphia. It did so through a resolution calling for states to send delegates “for the sole 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.” This was consistent with the Articles themselves, which provided a mechanism for their own amendment. Article XIII provided that “the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.”
But not all the states complied with Congress’s request that they send delegates to the Grand Convention to negotiate proposed amendments to the Articles of Confederation. Rhode Island, happy with a system in which it often exercised effective veto-authority despite its miniscule size, flatly refused. New York sent three (3) delegates, the incomparable Alexander Hamilton (a long-time supporter of amending the Articles to create a viable national government) and two staunch defenders of state autonomy included by George Clinton, New York’s soon-to-be-Anti-federalist Governor, for the all-but-stated purpose of voting against anything Hamilton supported.
So when the Founders met in Philadelphia, they faced a seemingly insoluble puzzle. They met as delegates of states bound by a “perpetual” confederation amendable only by unanimous action. They met with the task of proposing amendments sufficient to “render the federal Constitution adequate” to preserve that “perpetual” union. And one of the states whose unanimous support they needed to amend the Articles sufficiently to preserve the Union had already announced through its refusal to participate that it would support absolutely nothing they suggested.
Article VII was how the Founders cut this Gordian Knot.
They would not abide by the Articles’ rules in proposing a replacement for the Articles. Knowing that they could not meet the Articles’ requirements, they made up their own. Rather than allow little Rhode Island’s intransigence to doom the convention (and the Union), they replaced the Articles’ unanimous-consent requirement with Article VII’s rule that the new Constitution would take effect for the ratifying states whenever nine (9) states agreed.
And their rule change was decisive. As implicitly threatened, Rhode Island voted down the Constitution’s ratification in March 1788.* Without Article VII, that would have been the end of the Constitution. Because of Article VII, the ratification process continued, though, and the Constitution won its ninth (9th) and decisive state ratification from New Hampshire on June 21, 1788. Virginia and New York followed by the end of July. An election then followed, allowing Washington’s inauguration (along with a new Congress under the Constitution) on April 30, 1789, despite the fact that neither North Carolina nor Rhode Island had yet consented to the new regime.
* Rhode Island’s version of this history asserts that the state rejected the Constitution because it lacked a Bill of Rights. http://www.visitrhodeisland.com/make-plans/facts-and-history/. This is self-justification masquerading as history and ignores the state’s refusal to send delegates to the Convention at a time when no national government was contemplated and no need for a Bill of Rights even imaginable. Even the U.S. Archives admits that Rhode Island only narrowly ratified after the ratification of the Bill of Rights when “[f]aced with threatened treatment as a foreign government.” http://www.archives.gov/education/lessons/constitution-day/ratification.html.
Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm. Dan is currently a lawyer in Dallas.