The Amendment and Ratification Process

When the Framers were considering the best modes for ratifying the Constitution once it was written, and for adopting amendments to the Constitution once it was ratified, many were hoping to avoid two of the pitfalls that they had experienced under the Articles of Confederation. The first problem was that the ratification of the Articles had been no more than an agreement between state legislatures. Many delegates believed that this mode of ratification had produced three unfortunate results: 1) it meant that the state legislatures were superior to acts of Congress, because the Confederation Congress was itself the mere creature of the state legislatures; 2) it meant that the states were united by a treaty, not a government, because the Articles lacked the popular consent that would have given it legitimacy as a political association; and 3) it meant that, as a mere treaty, the union could be dissolved by the other members whenever one or more states reneged on the terms of the agreement. The Framers hoped to establish the new Constitution on a more solid foundation by seeking ratification by “We the People” rather than repeating the error of uniting only the state governments into a “league of friendship.” 

The Articles were also defective in the provisions they had made for amendments. They stipulated that no amendments could be made without the unanimous consent of all the state legislatures. This hurdle was placed so high that, in practice, the confederation could not achieve even the most sensible changes. As the experience under the Articles had shown, a single recalcitrant state could thwart the will of twelve other states. The Framers of the Constitution opted instead to develop an amendment process which, while it was still made more difficult than passing ordinary legislation, was a practicable way to alter the Constitution whenever it became necessary. Nonetheless, the old amendment process under the Articles would still have a direct bearing on the new mode of ratification, because ratifying the new Constitution would mean, in essence, a decision to radically amend the old Articles. And many critics of the Constitution, both inside and outside of the Convention, were incensed that the Framers chose to bypass the amendment process established by the Articles in order to implement a new kind of ratification. The Framers were essentially asking the American people to take a leap in the dark. They were asking the people to accept a ratification process which had been dictated by a Constitution that had no authority until it was ratified.