Guest Essayist: Dan Morenoff, Attorney


Article VII

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.  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.”



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.


Guest Essayist: Dan Morenoff, Attorney

Article IV, Section 3, Clause 1-2

1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Marge Simpson: “There are only 49 stars on that flag.”
Abe Simpson: “I’ll be deep in the cold, cold ground before I recognize Missouri.”

Abe Simpson got it partly right. Article IV, Section 3 leaves one state Constitutionally suspect; it’s just not Missouri. It also highlights that, under irrevocable actions taken by Congress, there could be 54 states at any time one state chooses.

Congress first admitted states to the Union while Washington was still President. In 1791, it admitted Vermont (a territory previously claimed by both New York and New Hampshire, which had governed itself for 14 years). Within months, it admitted Kentucky (formerly, the disgruntled, Western counties of Virginia).

The pairing indicated the great dividing line in American political life for the next 70 years. Congress admitted the states together to preserve the balance in the Senate between states allowing human slavery and those abhorring it. Also noteworthy, Virginia consented to the independence of Kentucky only after negotiating an interstate compact that Congress contemporaneously approved.*

By 1820, the tradition of admitting states in free and slave pairs (Indiana and Mississippi, Illinois and Alabama) was so engrained that it required the Missouri Compromise. Congress contemporaneously admitted Missouri (formerly a territory) as a slave state and the northern district of Massachusetts as a newly separate, free State of Maine, while drawing a line through the West beyond which slavery would not be allowed in the remaining Federal territories. Unlike the Virginia of 1790, Massachusetts, happy to preserve the balance of power for free states, demanded no concessions from Maine on consenting to the separation.

The events that followed, including the eventual repeal of the Missouri Compromise’s Western-land provisions in 1854, directly precipitated the Civil War.

Notice that, already, Congress had twice exercised the power to carve a state out of another state, with the consent of the severed state’s legislature. During the Civil War, it did again, this time in a Constitutionally suspect manner. After Virginia seceded from the Union, its loyalist, mountain counties seized the chance to free themselves from the richer, more heavily populated lowlands. Deeming the rebellious state legislature in Richmond illegitimate, these counties’ representatives gathered in Wheeling, Virginia (in their midst) and declared themselves the legitimate government of all of Virginia. It was this “loyal” government of Virginia which consented to the carving of the same counties represented within it into the new state of West Virginia.

When the Civil War concluded and Virginia returned to the Union, Virginia’s government predictably challenged the legitimacy of the Wheeling convention’s actions during the war. In 1865, the Virginia General Assembly repealed the Wheeling convention’s act, nominally in Virginia’s name, of consenting to the split. Litigation followed, in which the United States Supreme Court implicitly recognized the Wheeling convention as having spoken both for the seceding counties and for the State of Virginia as a whole, despite the fact that this put the same people on both sides of the table in a negotiation.** Nonetheless, since 1871, West Virginia’s questionable legitimacy has been set aside, apparently in the interest of finality.

Finally, it is worth noting that while no new state has been admitted to the Union since 1959, Congress has bindingly consented to further admissions.

Alone among America’s states, Texas was an independent republic before statehood, which joined the Union not through the usual process of Congressional admission, but through the contemporaneous action of two, equal sovereigns. On February 26, 1845, the U.S. Congress passed a joint resolution offering Texas statehood. Texas then convened an Annexation Convention that approved annexation and submitted an Annexation Ordinance to popular referendum in October 1845. After the people of Texas authorized ascension, both the U.S. House and Senate approved the Annexation Ordinance and President Polk signed it into law on December 29, 1845.

Both the initial U.S. Congressional joint resolution and the Annexation Ordinance included the following provision:

New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution.

An affirmative part of the deal between sovereigns, enshrined in the law of the United States, was that Texas, at its discretion, may self-divide into up to five (5) states at any time. While Texas has, to date, never exercised this option, it has the legal right, should it so choose, to sub-divide and claim an additional 8 seats in the United States Senate at its pleasure.
* The Compact bore on the preservation of land-titles held on paper by Virginians before Kentucky’s independence. The conflicts that Compact’s terms set in motion between Virginians that had never seen the lands in question but held papers properly filed in Richmond and the frontier woodsmen who settled Kentucky and developed its lands would only be resolved 140 years later through the Kentucky Supreme Court’s resort to legal fiction. Green v. Biddle, 21 U.S. 1 (1823).

** Virginia v. West Virginia, 78 U.S. 39 (1871).

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, Texas.

Guest Essayist: Dan Morenoff, Attorney

Article 1, Section 9, Clause 7

7:  No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This clause of the Constitution seems utterly unremarkable today.  It reads like an accounting textbook, never hinting at the long history of struggle summed up in the first sixteen (16) words.  Nor do the remaining twenty-two (22) words indicate, on their face, the antiquity of the ethical judgment they imply.  Yet, if you scratch the surface, the Appropriations Clause holds wonders.

For centuries before the Constitution’s ratification, English-speaking legislatures had contended with the executive for control over the power to spend.  Beginning with Runnymeade and the Magna Carta, what would become Parliament had striven to limit the King’s control over money raised and spent.  While religious and commercial differences played a role in the conflict, the English Civil War began as a battle over Parliament’s exercise of independent judgment in refusing to support a King’s call for greater taxes.  By 1689 at the end of the Glorious Revolution, Parliament had written into law through the English Bill of Rights legislative control over the raising of money, asserting “[t]hat levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament … in other manner than the same is or shall be granted, is illegal.”  Parliamentary control over how Kings spent the funds Parliament helped raise began with the insertion of instructional language into a grant of funding in the 14th Century.  While Parliament’s control over spending remained incomplete in the 1780s, English-speaking legislatures had been trying to control how funds they raised were spent for 400 years before the founding.

On the West side of the Atlantic, these efforts were accelerated by the distaste the Colonials often had for the Crown’s appointed Colonial Governors.  So firmly had Colonial legislatures established control over what funds were taxed, borrowed, and spent by Governors that Madison could define the “power of the purse” in the Federalist Papers as the power “to propose the supplies requisite for the support of government” and safely assume that his readers would know exactly what he meant.  Indeed, in Federalist 58, Madison went further, explaining the power, not entirely accurately in terms of British practice, but consistent with the Colonial experience of annual, line-item appropriations, as:

that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activities and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government.  This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining redress of every grievance, and for carrying into effect every just and salutary measure.

The Appropriations Clause wrote this Colonial practice into stone.  In America, no money would leave the treasury without the passage of an appropriations bill passed by Congress.  The intervening centuries under the Constitution have seen further conflict over the contours of the Appropriations Clause – for example, battles over Presidential discretion to “impound” appropriated funds (meaning, to refuse to spend them).  But the bedrock principle of the Appropriations Clause has almost never been called into question.

Ancient as the story hidden within the first half of the Appropriations Clause is, the second half of the clause, that requiring “a regular Statement and Account of the Receipts and Expenditures[,]” has it beat by thousands of years.

The core, ethical requirement of the clause is that any one entrusted by law to spend the people’s money has a duty to show that he has done so as a faithful steward.  That requirement has its roots in the book of Exodus.  Moses himself came back after the construction of the Ark of the Covenant with a report on how the funds raised were actually spent.

The Founders expected their Presidents to be no more ethical people then Moses had been.  Accordingly, they wrote into the Constitution a requirement of the same kind of reporting Moses had provided.

As a result, the clause is one of the clearest examples of biblical influence on the Constitution.

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, Texas.