Ratification and Popular Sovereignty

The Power of “We the People”

Madison was not only presenting his case for the legitimacy of some of the delegates intention to dissolve the Articles, he was also laying the groundwork for a new understanding of the compact they were creating in order to replace it. The Constitution would be something entirely different than the old Articles—a lasting compact formed by individuals within a society. Whereas the states were left free to dissolve the Articles at any time they chose, the Constitution would be ratified in such a way as to make it a more permanent sort of compact. Because its foundations rested upon “We the People,” instead of being merely a “Union between the States,” the new Constitution could not be dissolved as easily as the old Articles.

The ratification of the Constitution therefore had to be different; its ratification would be founded on the true front of legitimate power: the consent of the individual people who made up the compact. But this method of ratification would do more than lend the new government heightened legitimacy and change the terms by which it could be dissolved. Madison provided another reason at the Constitutional Convention why the ratification of this compact had to be based on the people. It would alter the interpretation of subsequent legislation passed under the Constitution: “a law violating a treaty ratified by a preexisting 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” (July 23). Ratification by the people would therefore result in another important constitutional consequence. It would establish the Constitution as a fundamental law, one with the authority to nullify any subsequent law that contradicted it. It therefore formed the justification for judicial review.

Preserving Federalism in Ratification

Although the Constitution would create a political system rather than a mere league, it yet retained some federal features—a respectful nod to the continuing importance of the states—even in its mode of ratification. The Constitution not only had to be ratified by the people, but by the people as they would represent the choice of the individual state in which they resided. Madison explained this blending of principles in Federalist No. 39:

It appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State the authority of the people themselves.

The deliberate consent of the people renders the United States a legitimate government. And governments based upon the consent of the people cannot be dissolved merely because one or more parts violate the terms of the compact. Still, the states were expected to retain an important function within this political compact.