Why the Framers Could Suggest Ratification by Only Nine States
In prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.
Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only nine states instead of the 13 the Articles required.
One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.
But there is a more formal, and perhaps better answer. Here’s the background:
The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history: Within the loose league mis-labeled the Holy Roman Empire, the German people were governed by a multitude of states. From 1945 until unification in 1990, the German people were divided into two entirely separate countries. From the fall of the Western Roman Empire until 1870, the Italian people were divided into a multitude of different countries. The Korean people are divided into separate sovereignties today, as are the Irish.
Under the dominant political theory of the Founding Era, public officials were agents of the people. At the time of Independence, different segments of the American people had granted governmental power to disconnected sets of agents (officials of the several states). In 1781, those separate sets of agents agreed via the Articles of Confederation to formally empower the Confederation Congress.
Thus, the Articles essentially comprised a treaty among independent states. Of course the signatories to a treaty always may agree among themselves to repeal or re-write the instrument.
But under principles of agency prevailing both at the Founding and today, those who hire agents are called “principals.” In this case, the principals were the American people. Legally, a principal may revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
Put another way, the American people could decide to revisit the treaty obligations their agents had contracted on their behalf. The commissioners at the 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
The ratification procedure was crafted in such a way that if the Constitution were ratified, that ratification had a good chance of representing the will of a majority of the American people—or at least of the American electorate. This was done in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution. (2) The Constitution would not go into effect unless conventions in nine states agreed.
Why nine? Some have pointed out that nine represented a two thirds vote of states, and that it was an accepted number under the Articles for certain important decisions.
But I think there was a more central reason: As the Constitution’s initial allocation of the new House of Representatives showed (Art.I, Sec. 2, Cl. 3), the Framers believed that any combination of nine states would comprise a majority of American citizens. Even if the five most populous states all refused to ratify, the remaining nine still would represent a majority of the electorate.
But what if nine small states all ratified by very narrow margins, and five big states rejected the Constitution by huge margins? Wouldn’t that result in ratification by a minority?
This was theoretically possible. But the Framers knew the odds for ratification in Pennsylvania (the second most populous state) were very high. So the chances of a “9 smallest states vs. 5 biggest states” line-up was negligible. If only nine ratified, at least one large state—Pennsylvania—would be among them.
In addition, the Framers knew as a practical matter that even if nine states, including Pennsylvania, ratified, it still wouldn’t be enough. The union needed New York (then ranking fourth or fifth in population) and it desperately needed Virginia (first). Without one or the other—and probably without both—the Constitution could not be implemented. And if nine states ratified but New York did not (New York’s Governor opposed ratification), the New York City region might well secede from the state and join anyway.
So the Framers had good reason to believe that if the Constitution did come into effect, this would occur by the will of a majority of America’s “one people.”
The result would be creation of a government in a manner almost unprecedented in world history: Ratified by a majority of the people themselves.