Long before the delegates met in Philadelphia to debate a new Constitution, James Madison was giving a lot of thought to how it should be ratified after they were finished. When drawing up his list of the “Vices of the Political System of the United States” in the spring of 1787, he had evidently come to believe that the way that the Articles of Confederation had been ratified merited a separate category of vice on its own. The problem with the Articles, as he saw it, was a “want of ratification by the people.” In the first place, it was not clear which laws had greater authority—the acts of the Confederation Congress or the acts of the state legislatures. Since Congress was itself formed from an act by the state legislatures, any other later acts of the states legislature would seem to have at least equal weight with the Confederation Congress and all of its acts. And since there was an established principle of law that later acts of legislation have more weight than earlier ones, some might conclude that subsequent state laws would be superior to federal laws. In the second place, since the Articles of Confederation were intentionally meant “to be regarded as a league of sovereign powers, and not as a political Constitution,” it followed that “a breach of any of the articles of the confederation by any of the parties to it, absolves the other parties from their respective obligations, and gives them a right … of dissolving the Union altogether.” The Articles which were supposed to be a “perpetual Union” between the states had no originating act that justified its claims to perpetuity. Madison wanted to avoid both of these problems when ratifying the new Constitution. And he thought that both of those problems could be solved by a ratification process that was based on the consent of the people, not the state legislatures.
When Randolph read the Virginia Plan to the Convention on May 29, its final resolution adhered to Madison’s opinions about how the new Constitution should be ratified: “Resd. that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people to consider & decide thereon.” In short, the Virginia Plan was proposing that the new Constitution should first receive the blessing of the Confederation Congress before it was sent to the states; then the state legislatures should arrange for conventions made up of delegates who were “expressly chosen by the people” to decide the question of ratification. This ratification proposal would provoke debate, disagreement, and even outrage at the Convention, but although the details would change slightly over the summer, its substance would remain the same.
James Wilson started an entirely new line of thought. He hoped that less than a unanimity of states would be required for ratification, “with a door open for the accession of the rest.” Charles Pinckney “hoped that, in case the experiment should not unanimously take place, nine states might be authorized to unite under the same government.” For the time being, the delegates could only agree on one thing: to postpone the ratification resolution. On June 9, Paterson “alluded to the hint, thrown out by Mr. Wilson” about ratifying the Constitution with less than unanimous support. He defied the large states: “Let them unite if they please, but let them remember that they have no authority to compel the others to unite.” Wilson was unfazed by this counter-threat, and he expressed his hope that, “if the Confederacy should be dissolved, that a majority,—nay, a minority of the states would unite for their safety.”
When the Committee took up the question again on June 12, they agreed to the ratification resolution in the Virginia Plan without change or debate on a vote of 6-to-3. All of the states that agreed to the question, however, were the ones most inclined to abandon the Articles in favor of a strong central government (Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia). The states who wanted only minor revisions to the Articles voted differently. Connecticut, New York, and New Jersey had voted against the measure, and Delaware and Maryland were divided. As the summer wore on, members from these states would lead the charge against the new form of ratification.
On June 16, after the New Jersey Plan had been presented as a counter-proposal to the Virginia Plan, John Lansing of New York and William Paterson of New Jersey both protested that the Convention did not have the authority to depart from the amendment process that was prescribed in the Articles of Confederation. Paterson actually read the relevant article to the assembly, reminding them that no alteration could be made without the unanimous consent of the states. He insisted: “This is the nature of all treaties. What is unanimously done, must be unanimously undone.”
The other members struggled to justify a mode of ratification that deliberately flouted their existing agreement under the Articles. Whatever might be its flaws, this compact would continue to bind them all until such time as some other system could be ratified. Wilson and Pinckney argued that the delegates were free to propose anything they liked, since the actual ratification would take place by that body which had the greatest possible authority: the people themselves. Randolph struck the high moral ground: “When the salvation of the republic was at stake, it would be treason to our trust, not to propose what we found necessary.” The Framers needed to be ready with a good alternative plan of government, a stronger, more resilient one, which would reunify an already disintegrating confederacy.
The delegates would return to this subject frequently over the next several weeks—sometimes repeating the same objections and defenses and sometimes offering new arguments and refutations. On July 23, Ellsworth and Paterson formally moved that ratification should be by state legislatures. Mason responded that he “considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions.” It was in the people that “all power remains that has not been given up in the constitutions derived from them.”
Until then, Massachusetts had been the first state to ratify its constitution by popular consent; most states had adopted their constitutions by legislative fiat. The Virginians were now saying that popular consent was the only legitimate way of establishing a constitution, and by making this claim they were not only delegitimizing the Articles of Confederation, they were also calling into question the legitimacy of most state constitutions. For many members at the Convention, this new doctrine seemed to threaten their whole political order.
Madison held firm to this doctrine, no matter how novel or radical. The Constitution that they would be proposing would not only alter the agreement between the states, but in many cases it altered the relationship between the people and their existing state legislatures (because it curtailed the powers of these legislatures). The only legitimate authority to alter these existing compacts was the people themselves. He then repeated, once again, his arguments in favor of a popular ratification:
He considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a preëxisting law might be respected by the judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation.
A popular ratification was necessary to establish both the superiority and the permanency of the federal Constitution. After all, the delegates were themselves deliberately flouting the amendment process of the Articles of Confederation precisely because that compact had never been ratified in any authoritative way. If the new constitution were ratified properly, then it could not later be evaded or rescinded in the same way that the Convention was now discarding the Articles. After this speech, the motion to ratify by state legislatures lost by 3-to-7, and the original resolution for a popular ratification won by 9-to-1.
The question of who should ratify had been decisively settled, but the delegates had still not confronted the controversial question of how many states would need to ratify before the Constitution would be in force. As the issue was addressed on August 30 and 31, it became clear that the delegates’ notions on this subject were diverse. Wilson proposed a simple majority of seven, but was willing to go as high as eight; Sherman thought that no less than ten should be required as a substitute for a provision that had previously required unanimity; Randolph suggested nine; and Dickinson urged that they should stick with thirteen (and Sherman switched his preference to unanimity as well). Madison and Gouverneur Morris both proposed a two-pronged qualification for ratification. Morris wanted a lower number if the states were contiguous and a higher number if the ratifying states were non-contiguous. Madison thought that a majority of states would be sufficient only if they also represented a majority of the population, but a higher number of states should be required until they reached a majority of the population. These more elaborate alternatives were never seriously considered. The choice of nine states to ratify was the popular favorite, at 8-to-3.
While the delegates were debating the question of the number of states needed to ratify, a few other issues were brought forward. James Wilson thought that all states should be bound by a decision to ratify, even if they were not among those states who voted in its favor: “We must, he said, in this case, go to the original powers of society. The house on fire must be extinguished, without a scrupulous regard to ordinary rights.” No one else supported this autocratic approach, however, and they chose instead to add the words, “between the said states,” to clarify and reinforce their intention that the Constitution would only operate over those states who chose to ratify it.
One last question had to be resolved on the question of ratification: should the assent of Congress be a necessary step in the process toward ratification? On August 31, Gouverneur Morris and Charles Pinckney moved to strike out the words requiring the approbation of Congress as a necessary step. The Framers accepted the change, on an 8-to-3 vote, but they did not immediately decide on a formulation to take its place. The question was debated more fully on September 10. Elbridge Gerry wished to reconsider the whole clause, especially because “he objected to proceeding to change the government without the approbation of Congress, as being improper, and giving just umbrage to that body.” Hamilton agreed on the “indecorum” of slighting Congress, and thought the approbation of that body should be a “necessary ingredient in the transaction.” Thomas Fitzsimons of Pennsylvania “remarked, that the words ‘for their approbation’ had been struck out in order to save Congress from the necessity of an act inconsistent with the Articles of Confederation, under which they held their authority.” It now became a question of either risking umbrage by snubbing Congress or placing that body in an awkward position: asking them to explicitly acquiesce to an “unconstitutional” mode of amending the Articles.
Rufus King gave it as his opinion that “it would be more respectful to Congress, to submit the plan generally to them, than in such a form as expressly and necessarily to require their approbation or disapprobation,” and Sherman agreed with King. Wilson’s objections were more practical. He thought it would be “worse than folly” to hang their hopes on the assent of Congress. He complained: “After spending four or five months in the laborious and arduous task of forming a government for our country, we are ourselves throwing insuperable obstacles in the way of its success.” The others seemed to agree, and the ratification provision (which no longer included the clause requiring the approbation of Congress) was again passed, 10-to-1.