Article VII of the Constitution: Ratification

- [Kim] Hi, this is Kim from Khan Academy, and today, I'm learning more about Article VII of the US Constitution, which is the provision that specified the conditions for the Constitution to become law. It reads, "The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same." Although this sounds simple, it reminds us that when the framers finished drafting the Constitution in Philadelphia is 1787, it was by no means a done deal. At least nine states had to ratify the Constitution in order to replace the existing government under the Articles of Confederation. To learn more about the ratification process, I sought out the help of two experts. Mark Graber is the Jacob A. France Professor of Constitutionalism at the University of Maryland Francis King Kerry School of Law. Michael Rappaport is the Darling Foundation professor at the University of San Diego School of Law. Professor Graber, can you tell us a little bit about the political context of ratification? What was going on at this time as the framers tried to put a new Constitution into the fabric of the United States? - [Mark] Well, one central problem of the Articles of Confederation was the Articles required that all 13 states consent for any amendment. And it turned out, at this time, Rhode Island was a great outlier so Rhode Island wasn't gonna consent to much of anything, and, in fact, Rhode Island did not even send delegates to the convention that drafted the Constitution, so the framers knew that if you had the unanimous rule for ratification, it would not work. Instead they chose nine, it's about two thirds, three fourths, in part to make sure Rhode Island and one outlier could not prevent adoption. - [Michael] So, let's remember, there's two stages here in how the Constitution gets written and ratified. First, it's written in what's called The Drafting Convention, or the Philadelphia Convention, which was held during the summer of 1787, and in that convention, it's pretty much in agreement that the federal government needed to be made stronger, but that was just a proposal. In order for the Constitution to be ratified, it needed nine of the thirteen states and so it went to the second stage, and there things were, in some ways, gonna be more difficult, because there was a variety of viewpoints in the different states. The main question that came up in state after state after state was, was the federal government being given too much additional power? Under the previous regime of the Articles of Confederation, the federal government had very limited powers, and the Constitution was gonna give the federal government more power. - [Mark] They wanted a strategy that, once the balls started rolling, states that were slower were gonna be faced with a choice. You could get in on the inside, and maybe affect some changes early, but if you were left out, whatever happened would happen without you, and a lot of states, at the end, were fearful of being left out. - [Michael] This strategy worked, and as they went through in tough states, as time went on, so New Hampshire, Virginia, New York, North Caroline, Rhode Island, in order to get ratification, each time they promised, we'll have a Bill of Rights and those states added a list of amendments that they wanted added to the Constitution. - [Kim] So was it controversial that the framers decided that only nine states would be necessary to ratify the Constitution? - [Mark] Very controversial. One of these central points of anti-federalists was that this was illegal, that the existing Constitution said all states so therefore, only all states could change the Constitution. - [Michael] So in that respect, it was somewhat controversial. Another way in which it departed from the Articles is the Articles said you needed the state legislatures to approve the amendments, and the U.S. Constitution said, no, we want state conventions, special bodies elected by the people to approve these things. Why did they say that? Because they feared that the state legislatures, who would be losing a lot of power under the Constitution, would vote against it, so they wanted sort of to go directly to the people in these conventions and bypass the state legislatures. - [Kim] So we know that there were some opponents of this new Constitution. How close did they actually come to preventing its ratification? - [Michael] Well, it was a very close fight. We look back on it and eventually all 13 states are gonna ratify and it looks like, oh well, that wasn't too much of a trouble, but it was very close and things could have easily gone in the opposite direction. One of the ways in which it was close was that there were just very close votes. Massachusetts was 187 to 168. New Hampshire was 57 47. New York was 30 27. Very close votes. A couple of people changing their mind and that would have meant various states didn't ratify. In addition to that, some of the states actually did not ratify. The first thing that happened was Rhode Island, early on in the process, says, we don't like your horrible Constitution, they all expected that. We're not gonna hold even a convention. You want us to hold a convention, we're not gonna hold a convention. We're just gonna have a vote in state. And that vote in the state, 90% of the people voted against the Constitution. In a way, Rhode Island actually voted against ratification, although it didn't use the proper method. North Caroline, also, they held a convention, and they were very upset about there not being a Bill of Rights in the Constitution, and they just didn't approve it. They didn't disapprove it, they just did nothing, and they waited. And so, in a way, two of the states voted against ratification. - [Mark] North Carolina had not yet ratified when George Washington took office, so, in fact, when George Washington took office, there were only 11 states in the Union. At the end of the day, crucial people, I think, decided it was better to sign the Constitution and be in on the ground floor then stay out and see what happened. - [Kim] Interesting, so, who are some of the major players involved here, and what were they arguing about? - [Michael] There were the federalists, who were arguing in favor of ratifying the Constitution, and the anti-federalists, who were arguing against ratifying the Constitution. The federalists, two of the very famous ones, are familiar names, Alexander Hamilton and James Madison. Those two people, that were also particularly important because they decided, Hamilton said, we're gonna have a tough time getting ratification in New York, we need to write some essays defending the Constitution. And so Hamilton and Madison cooperated together and wrote what we now call The Federalist Papers, which were simply essays written in the newspapers trying to urge the New York Convention to ratify the Constitution. Eventually those essays were sent to other states and became known, and now we've come to revere those essays as The Federalist Papers. But they were originally just kind of advocacy pieces for ratifying the convention. Now, there were also anti-federalists. - [Mark] The anti-federalists, in part, were simply people who opposed the Constitution, and just as is the case as say people opposed Obamacare from both the left and the right, people who opposed the Constitution opposed it for many different reasons, and one of their problems was they were not a united bunch. But, in general, these were people fearful of a very strong national government. They believed states were sovereign, they wanted to keep power local, and they were very fearful of what they perceived to be an elite who would run the Constitution after ratification. The names that people may know who were anti-federalist were people like Patrick Henry and Samuel Adams. - [Kim] So what were some of the major arguments made in favor of adopting this new Constitution? - [Michael] There were, I think, two types of arguments. People felt that the articles were not working properly. They had all kinds of problems, and one of the strongest arguments that the Federalist papers made was that if we don't fix this and make for a stronger union together, what'll happen is, we'll break apart. Look at what happens when you have a bunch of states all next to one another in a land area. We know what that looks like, it's called Europe, and what happens in Europe? They fight wars with one another all the time, and those wars are very problematic. You have to have big armies, standing armies. Now, there were also the particular arguments about what powers were missing that the federal government had. The main arguments were made was the federal government did not have enough power, so they didn't have, for example, the taxing power, and they didn't have a way of enforcing treaties against the states very well, and some of the states were putting tariffs up, so interfering with trade within the country. - [Mark] So, states would set tariffs on out-of-state goods, states wouldn't contribute to the national government. Second, we needed to present an united front to foreign governments. We were very worried, what would happen if South Carolina formed an alliance with England and North Carolina formed an alliance with France. That wouldn't be good, the country needed to speak with one voice. - [Kim] Those are some of the arguments made for adopting the Constitution, what were some of the arguments against adopting this new Constitution? - [Mark] Well, first argument was, even though most anti-federalists admitted the Articles needed some repair, they said it's not really urgent. It's not like the house is gonna fall down tomorrow, it's just, you know, the wind is coming through and we can figure it out. We really want a better Constitution. The other arguments were the Constitution put too much power in the national government. It put too much power in elites. The fear was if you had national elections, only elites would win. If you had local elections, people the people actually knew would win. - [Kim] They thought, a big national government would be too far away from the people to know what they really needed, as opposed to state governments, which they perceived as being more personal, closer to the needs of individuals? - [Mark] Compare two kinds of elections. First, how many people really know anyone who runs for Senator, who runs for President, that you're on a first name basis with? Now, compare, you're in a school club, chances are when someone runs for an office in the school club, you know who they are. - [Michael] Another type of argument was, if you give the federal government this power, and even if, and the federalists would always argue that the power was limited that they were being given to the federal government, and the anti-federalists came back and they said, well, you say it's limited but what we know from historical experience is is that once a government's in power, it tends to seize more power. There's a lot of vague phrases in the Constitution and the federal government will use those vague phrases to assert greater and greater power. - [Kim] What were some of the strategies that the framers used to entice some of the opponents of a strong central government to ratify the Constitution? - [Michael] The first thing that they did was to try to build up momentum. They knew there were certain states which were strongly in favor of ratification. Small states, sometimes, wanted ratification. The first state that comes in is Delaware, and they vote 30 to zero for the Constitution, and a bunch of early states, so let's say the first five states all vote for ratification by pretty lopsided margins. That builds up a kind of momentum. Alright, we have five states, we only need four more. Of course, the next ones that were gonna come were gonna be much more difficult. They then needed to change their strategy at that point. - [Mark] They argued like crazy. The Federalist Papers are a very famous example. They indicated they'd be open to amendment once the Constitution was ratified. Then again, in Pennsylvania, when anti-federalists boycotted the convention, and the result is the convention didn't have a quorum, they ordered the sergeant-at-arms to a tavern. The sergeant-at-arms found some boycotting anti-federalists and physically put them in the building so they could count for a quorum. - [Kim] That is terrific. - [Mark] That one doesn't get told in a whole lot of history books. - [Kim] Wow. - [Mark] The framers could play rough and tumble politics with the best of them. - [Kim] A lot of the things that pop up at the time of the framing, I think, we look back on today and imagine, how would this work in today's era, with 330 million Americans? Do you think the system under the Articles of Confederation with a smaller, more local, government could possibly work today? - [Michael] Well, among other things, the Articles had no great means of collecting taxes or gaining revenue. Given that modern government needs trillions of dollars, the Articles, if you've got a thousand dollars, it was a miracle, so the Articles clearly don't work. But the Articles were inadequate for 18th century government. They were clearly inadequate, or would be clearly inadequate, for 21st century government. Now, the Constitution appears to have been adequate for 18th century government, whether it is adequate for 21st century government is a fair question. - [Michael] One of the interesting questions about the Constitution is, how democratic is the Constitution? This debate about how democratic the Constitution is actually enters into the question about ratification. On one level, the Constitution was democratic because each state in these ratification conventions voted on whether to ratify by majority vote. On the other hand, at the federal level, the ratification requirement required nine out of 13, and the idea there would be, we needed more buy in. We needed a limitation on simple majority rule in order to make the system function well, in order to produce a Constitution that would have support from the whole country. The interesting thing about that supermajority rule, and something that people don't often make the connection with, is we probably owe our Bill of Rights to that supermajority rule, because if only seven of the 13 states, the minimum majority, had been needed to ratify the Constitution, then it's quite possible that the federalists wouldn't have had to promise to put a Bill of Rights into the Constitution, because they wouldn't have needed to. And they were initially quite opposed to putting a Bill of Rights in the Constitution. It was only the fact that they needed nine out of 13 states that really forced their hand and forced them to promise that they would put the Bill of Rights in there. We see, in terms of the ratification, that there's both sort of democratic elements but also republican, or supermajority, elements. - [Kim] We've learned that it wasn't easy to ratify the Constitution. The framers bypassed state legislatures and went directly to the people in state conventions, hoping that momentum and arguments for a stronger federal government would entice the opponents of the Constitution to ratify it. It took until 1789 for nine out of 13 states to ratify the Constitution and finally make it law. To learn more about Article VII, check out the National Constitution Center's Interactive Constitution and Khan Academy's resources on US government and politics.