How could a not-yet ratified constitution determine the method of ratification?

I remember trying to ask this question when I was about in 6th grade. Lack of any semblance of ability to articulate the question, coupled with a concomitant inability to understand a sophisticated answer, and a possibly marginally competent teacher left me in the dark. I’ll try again, some 50 years later. Article VII in the Constitution explains what is necessary for ratification of the Constitution. I wonder how it is that a document that is not yet law, that has not yet been adopted into the guiding principles of the government can entail the rule for its own ratification. There are a few other examples of this in the amendments, too. It seems inherently paradoxical. I see I still can’t really articulate the issue, but something about it seems internally inconsistent. It seems as if the procedures for dealing with a document need to be established external to that document, until that document becomes accepted as law. Any help? xo, C.

The ratification clause was put in there because the Framers thought they could. They were operating under the assumption that the Confederation Congress had authorized them to create a completely new Constitution with almost no restrictions.

Whether or not this was true was part of the debate surrounding the ratification of the Constitution.

The Supreme Court had a ruling of sorts on the matter in 1820:

A New Constitution for the United States of America

Article 1:
All powers, executive, legislative, and judicial, shall be vested in Chronos and in his designated successsors.

Article 2:
This Constitution shall take effect on ratification by any citizen of the United States of America.

Article 3: Any state with less than 2 million people is no longer a state. :wink:

Actually, the Confederation Congress did not authorize the framing of the Constitution. The Virginia assembly had called for states to send delegations to an interstate conference in Annapolis, to "consider the utility of vesting Congress with adequate power to regulate commerce."Jack Rackove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) 32. Eight states accepted the invitation, but only five showed up on time. Id.; Because of the poor attendance, the delegates concluded that no proposal that they issued would be respected. Therefore, they proposed that the states choose delegates

Annapolis Conference Report;; *Original Meanings *.

The Philadelphia convention was instructed to come up witha proposal for an Act–not draft a constitution. And that Act was to be adopted by unanimous consent, as was the requirement under the Articles of Confederation for amendments of the Articles. " [T]he 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." Articles of Confderation, Art. XIII

The convention soon realized that a more radical change was required and came up with the Constitution instead of a limited Act. It chose the ratification procedure for two main reasons:

  1. A statute could be rewritten by another legislative action. Page not found - Teaching American History (discussing the doctrine of quod leges posteriores priores contrarias abrogant); Kozinski, Original Mean[der]ings,49 Stan. L. Rev. 1583 (1997) (same). Some of the Framers wanted to put the Constitution on a higher level in order to insulate it from later modification by a simple legislative majority, perhaps even unintentionally. They also emphasized that it was not the Congress that had created the Constitution, but a conference of state delegations, which they believed would have more legitimacy.

  2. The Framers were concered that the Constitutino would be attacked as illegitimate because it was not adopted in accordance with the Articles because it did not require unanimous consent.

Rakove devotes an entire chapter to the concept of ratification and its origins. *Id. * at 96-130. Rakove says,

(Footnotes omitted). Id. at 128-129.

For reviews of Rakove’s book, *see *

Kozinsky, supra. Stephen A. Siegel, Book Review,17 Law and History Review 410 (1999).
Thomas C. Mackey, Constitutionalized Politics

Doesn’t any agreement, contract, or the like contain some specification as to when it becomes effective?

Mighty big talk from somebody from a district

Most treaties do. Vienna Convention on the Law of Treaties, Art. 24.

Some offers (the first step to making a contract) do. If the contract is negotiated, it will probably have an “effective date” provision, but will not specify a means of acceptance. Usually the written contract embodies the results of negotiations. It is meant to formalize the terms of the contract, but all parties have already agreed to accept its terms.

There are Montanans who would ratify that in a heartbeat.



I should have said that it endorsed and seconded the recommendation from Annapolis, and seconded the recommendation.

At any rate, the Philadelphia Convention went far beyond “the sole and express purpose of revisinging the Articles of Confederation.”

It feels to me that there are a number of issues being discussed here that explain how the Constitution came to be written under the existing laws, and how questionable some of those reasons were, and still are, I gather. In contracts, as explained above, there is no provision written into any contract regarding its method of acceptance. That’s the piece that still intrigues me. How can a document that is not yet law make any claims as to how it will be ratified? I think I understand that there was an issue as to how valid it might be if it were not ratified by a unanimous vote, but how could it determine its own destiny if it were not yet in force? That’s my OP.

The framers exceeded their license from the Congress of the confederation that was the United States. They wrote a document that outlined a government of specific, limited powers. They wrote it in the name of the people and not the existing national or state governments. And they specifically called for it’s adoption by the people as represented by conclaves formed in each state specifically for that purpose.

According to the Declaration of Independence “governments are instituted among men, deriving their just powers from the consent of the governed” and “it is the right of the people … to institute new government, laying its foundation on such principles … as to them shall seem most likely to effect their safey and happiness.” Given such an organizing theory, how else would you form a new government? What they did is write the Constitution, present it to the people to either accept or reject and argued for its acceptance. I’m not sure that I understand the problem that’s bothering you.

I think CC’s quandry is exemplified by Chronos’ (absurd) example. How could such a constitution be binding on anyone with such a riduculously low threshold (one person) for ratification, and how is this any different from the US Constitution from setting* it’s * own terms from ratification? The answer is that Chronos’ constitution is *not * binding on everyone, even if the required one person did ratify it (presumabmy Chronos :slight_smile: ), it would only be binding on the one person who did ratify it, everyone else would ignore it. I believe this was the approach with the US Constitution : all those states who agreed this is how things will be done will aceed to this Constutution and be bound to it: all others will be “outside” the system so to speak, with the only caveat being there need to be 9 states that so agree. The constitution could almost be viewed (orignally at least) as a multilateral treaty amongst soverign states: it’s binding on all the states because all the states agree to aceed to it. Those that don’t are not bound to it. For example, I believe originally Rhode Island did not ratify the Constitution, and hence were not part of the union, but were convinced to ultimately ratify because otherwise they would be treated as a foreign nation.

Yes - that’s my question. How could it set its own terms for ratification. And I guess the answer is that it required some sort of agreement among those who did ratify it that they would, in fact, honor that formula. It was obviously an informal agreement, since there was no other pre-existing law or document that determined how new constitutions should be ratified. So I guess what I’m learning here is that basically, in the absence of any other guiding principle, the existing states simply bought the idea that 9 would do it. I guess that since it did happen, the issue’s moot. But it still seems inherently paradoxical to me. Sort of like pulling yourself up by your own bootstraps.

That’s exactly what it said:

(Emphasis added).

Exactly. And like a treaty, it can only be agreed to according to its terms. That is how the ratification procedure was effective “before” the consitution was ratified. Those were the terms specified for its entry into force. Those are effective before ratification because if they weren’t there would be no effective method of ratification:

If we waited until after the Constitution was ratified, we would have an infinite regress, or at least an absurdity: The ratification procedure is not effective until it is uneccessary.

Rhode Island ratified in 1790, the last of the original thirteen colonies.

Here’s something else to think about. As soon as those 9 states ratified the Constitution, they in effect seceeded from the United States of America to form a new country (also called the USA) leaving the other 4 states in the lurch (and there is a real possibility that Rhode Island would not have ratified the Constitution without the Bill of Rights). Why then couldn’t the South do this less than 100 years later? Oh I know the decision as written in in Texas v. White, but read the conclusion of the Articles of Confederation

Emphasis added

Hmmmmmmm . . .

Because might makes right. Seriously. There wasn’t enough of anybody left in the “Articles of Confederation government” to enforce it. Besides which, the Articles themselves didn’t give much “enforcement power” or national goverment decision making power anyway (part of the reason all the states agreed something new was needed). It would be even less so with the two states that were “left out” by the time the Constitution was ratified and under operation (Rhode Island and North Carolina ). Completely different situation during the Civil War. The North most certainly was in a position to enforce the agremeent made by the southern states (and states theafter admitted and later seceded). However, if the South had won it is very likely the CSA constitution would be viewed as just as valid and legitimate between the states that agreed to it as the US Constitution, US courts be damned.

Which is a way of saying we (I speak as an American) are a nation of laws… but only up to a point. We can’t really expect that every law we write will truly have effect into perpetuity (even the Constitution). We will sometimes fundamentally change our mind , sometimes peacefully (e.g., the Constitutional Convention) sometimes not so peacefully (Civil war, although ultimately the Constitution prevailed there), and when we do so , we are not going to worry about the technicalities of the law that prevailed before. I mean we were not so concerned about the letter of English law when we broke from England, right?

Apropos of this phrase in the above post,

I came across this truly provocative and profound note in a recent presentation by E.L.Doctorow, who was promoting his recent book about Sherman’s march through the south:

“Think about the history of black people after that war,” says Doctorow. “How Reconstruction was sabotaged – segregation, poll taxes and lynchings – right up on to the civil rights liberations of the '60s. Reagan and Nixon and the Bushes using subtle race messages to capture the white South. You could make the case that the South won the war.”

I know this isn’t GD, but I just had to share that with someone, and here’s a little spot. I apologize for the hijack.

Mybe this is explained by the “there are no rights, only powers” statement over in the thread about where rights come from. The people of the south, as represented by their legislatures, may have had the right to abrogate the Constitutional “treaty” but they didn’t have the power to do so.

I’m not claiming that the south did have that right, but it doesn’t matter any more anyway. The question has been decided.