Nine of Thirteen, Why Article VII Sidestepped the Articles of Confederation

The Constitution was adopted by a rule it wrote for itself. Sit with that for a moment, because the critics certainly have. The Articles of Confederation said no change could be made without the approval of every state legislature. The Framers sent their plan to special conventions instead and declared that nine states would do. To a certain kind of law professor, that is the original sin of the American republic: a coup in knee breeches.

It was nothing of the kind, and the reason why is one of the most important ideas in the whole Founding. This post explains how Article VII works, why the Framers chose conventions over legislatures, how Madison defended the choice in Federalist 40 and 43, and what happened to the two states that stayed out.

The rule the Framers inherited

The Articles of Confederation, in force from 1781, ended with a promise and a padlock. Article XIII provided that the Articles "shall be inviolably observed by every State, and the 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."

Every state. Not most. Not a supermajority. Every one of thirteen.

That rule had already proven fatal, twice, in the most basic matter a government faces: money.

1. The impost of 1781. The Confederation Congress, broke and unable to pay its soldiers or its creditors, asked the states to approve a modest five percent duty on imports, payable to the national treasury. Twelve states agreed. Rhode Island refused in 1782, and the plan died.
2. The revenue plan of 1783. Congress tried again with a revised proposal. This time New York, whose own port duties were a rich source of state revenue, held out until the plan was beyond saving in 1786.

So a nation of a few million people could not raise a dime of its own revenue because one state, sometimes the smallest, could veto any reform. Imagine a homeowners' association where any single member can block the roof repair, and the roof is the national credit. That was the Confederation.

When the Philadelphia Convention met in May 1787, the delegates knew that any plan they sent to thirteen state legislatures for unanimous approval would die the same death. Rhode Island had not even sent delegates. Unanimity was not a safeguard. It was a guarantee of paralysis.

What Article VII says

The Framers' answer is the shortest article in the Constitution:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Three choices are packed into that sentence.

1. Conventions, not legislatures. The Constitution would be ratified by special bodies elected for that single purpose.
2. Nine, not thirteen. Nine was a little over two-thirds of thirteen, the same supermajority the Articles required for major acts of Congress, such as entering treaties or coining money.
3. "Between the States so ratifying." The Constitution would bind only the states that ratified it. No state would be forced in. A state that refused would simply be outside the new union.

That third point answers the most common charge. The Framers did not impose the Constitution on any unwilling state. They proposed a new compact among the states willing to join it, and left the others free to decide.

Why conventions outranked legislatures

The choice of conventions was not a procedural detail. It was a theory of sovereignty, and Madison pressed it at the Convention itself. On July 23, 1787, during the debate over ratification, he argued, as his own notes record, that he considered the difference between a system founded on the state legislatures only and one founded on the people to be the true difference between a league or treaty and a constitution.

Here is the argument laid out in premises.

1. The state legislatures are creatures of the state constitutions. They hold delegated power from their own people. They have no authority to give away powers their people never gave them.
2. The new Constitution would take powers from the states. It would reallocate authority between the states and the nation, which the state legislatures, as agents, could not do on their own.
3. Only the principal can change the agency. The people, as the source of all legitimate authority, could do what their legislatures could not.
4. A constitution ratified by the people stands on a higher footing than a law. A later legislature could repeal what an earlier legislature approved. A constitution adopted by the people in convention could be changed only by the people.
5. Therefore the Constitution had to go to the people, meeting in conventions chosen for that purpose.

Hamilton put the same principle in one sentence in Federalist 22, published in December 1787:

The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.

This is the Declaration of Independence put to work. In 1776 Americans had declared that governments derive "their just powers from the consent of the governed." In 1787 they built a way to obtain that consent directly. There was also a practical advantage that the Framers were candid about: state legislators, whose own power the new Constitution would reduce, were the people with the strongest motive to reject it. Asking them to ratify was like asking the fox to vote on henhouse security.

Madison's defense in Federalist 40

The critics did not wait for the law professors. Anti-Federalists in 1787 and 1788 charged that the Convention had exceeded its authority. The Confederation Congress, after all, had called the meeting on February 21, 1787 "for the sole and express purpose of revising the Articles of Confederation," and the delegates had thrown the Articles out entirely.

Madison answered in Federalist 40, and his defense has two parts.

First, the mandate was broader than the critics admitted. The same resolution charged the delegates with rendering the federal constitution adequate to the exigencies of government and the preservation of the Union. When the means given (revision) and the end required (an adequate government) could not both be satisfied, Madison argued, the end should prevail. The delegates had been asked to save the Union, and a patched Confederation could not save it.

Second, and decisively, the Convention's plan was only a proposal. The delegates had no power to impose anything. Madison argued that the plan was submitted to the people themselves, whose disapproval would destroy it forever and whose approval would blot out any earlier errors or irregularities. In other words, whatever the Convention's authority, the people's authority was supreme, and the people were the ones who would decide.

That second answer is the heart of the matter. Critics who call 1787 a coup have to explain what kind of coup ends by asking the public to vote on it in thirteen separate elections, with open debate in every newspaper, and with the plotters agreeing in advance to go home if they lose.

Madison's harder questions in Federalist 43

In Federalist 43, Madison went further and posed the two hardest questions himself. He asked, first, on what principle the Confederation, which stood in the solemn form of a compact among the states, could be superseded without the unanimous consent of the parties to it. And second, what relation would exist between the nine or more ratifying states and the few that might not join.

His answer to the first question appeals over the head of the Articles to the people's original right, and it is pure Declaration:

by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God

Madison then added a lawyer's point. The Articles had been ratified in many states by their legislatures alone, not by the people, so they had the standing of a treaty among states rather than a fundamental law. And under the law of treaties, a breach of the compact by any party frees the others from it. The states had been breaching the Articles for years, refusing requisitions, ignoring treaties, laying duties on one another's goods. A compact everyone had broken bound no one.

On the second question, Madison declined to predict. He called it one of those cases that must be left to provide for itself, and he expressed hope that moderation on one side and prudence on the other would bring the holdouts in. He turned out to be right.

The steelman, and why it fails

Let me give the critics' case its strongest form. The Articles were law. They said changes required unanimous consent. The Framers changed the rule by fiat, and every later appeal to "the rule of law" by conservatives rests on a foundation that broke the law. If the Founders could ignore an inconvenient amendment rule because they believed in their cause, why cannot anyone else?

The answer has four parts.

1. The Articles were a treaty, and treaties fall with their breach. The Articles' signatories had violated them repeatedly; the doctrine Madison invoked was ordinary law-of-nations reasoning that any educated lawyer of the time would recognize.
2. No state was bound without its own consent. Article VII bound only the ratifying states. Each state, through its own people, decided for itself. That is consent, not conquest.
3. The people outrank their agents. The Articles' unanimity rule bound the state legislatures and Congress. It could not bind the people from whom all those bodies drew their authority. When the people themselves, meeting in conventions, adopted the Constitution, they exercised the very right the Declaration had proclaimed.
4. The modern analogy fails. Today's Constitution, unlike the Articles, was ratified by the people and contains a workable amendment process in Article V. There is no claim of necessity that justifies going around a rule the people themselves adopted and that can be used whenever three-fourths of the states agree. The Founders sidestepped a rule that made reform impossible; they wrote one that makes reform possible but hard. That is the whole difference.

North Carolina and Rhode Island, the states that waited

New Hampshire became the ninth state on June 21, 1788, and the Constitution was established among the ratifying states. Virginia and New York followed that summer. Two states stayed out.

North Carolina. The state's convention met at Hillsborough in the summer of 1788 and adjourned on August 4 without ratifying or rejecting, chiefly because delegates wanted a bill of rights first. When George Washington took the oath on April 30, 1789, North Carolina was not part of the union he led. Once Congress proposed the amendments that became the Bill of Rights in September 1789, a second convention met at Fayetteville and ratified on November 21, 1789, by 194 to 77.

Rhode Island. Rhode Island had boycotted Philadelphia altogether. Rather than call a convention, its legislature submitted the Constitution to town meetings in March 1788, where it was rejected overwhelmingly, with Federalists largely staying home in protest. The state held out through 1789. The pressure that finally moved it was commercial: as an outsider, Rhode Island faced the prospect of having its trade treated as foreign trade, and in May 1790 the Senate passed a bill to cut off commerce with it. Rhode Island's convention ratified on May 29, 1790, by 34 to 32, the narrowest margin of all.

There is something fitting in the way it ended. No army marched on Providence. No state was compelled. The holdouts were simply left outside a union that turned out to be worth joining, and they joined. Madison's moderation and prudence did the work.

For the full sequence, state by state, see From Delaware to Rhode Island, the Ratification Fight State by State, and for a side-by-side reading of the two charters, The Articles of Confederation Next to the Constitution, Side by Side.

What Article VII means now

Article VII did its work in 1788, so it can look like a dead letter. It is not. It is the Constitution's signature: the clause that tells you where the whole document's authority comes from. The Preamble begins "We the People" because Article VII sent the document to the people. Every time a court strikes down a statute as unconstitutional, it is relying on the premise that the Constitution, ratified by the people, outranks any law passed by their representatives. That premise is Article VII's gift.

It also sets a standard. A government whose authority rests on the people's ratification cannot claim powers the people never ratified. The administrative state, the agency rule written without a vote, the federal program that rests on no enumerated power, all sit uneasily with a Constitution whose own adoption depended on the people's direct consent. Madison's July 23 distinction between a treaty and a constitution is also a distinction between government by consent and government by assumption. See We the People Wrote a Preamble That Limits Government Instead of Licensing It for what the opening words promise.

The case in brief

1. The Articles of Confederation required every state legislature to approve any change, and that rule had already killed the impost of 1781 and the revenue plan of 1783.
2. Article VII sent the Constitution to conventions elected by the people and made nine states enough, binding only the states that ratified.
3. Madison argued that a plan founded on the people, not the legislatures, is the true difference between a treaty and a constitution, and Hamilton grounded it in the consent of the people.
4. In Federalists 40 and 43, Madison answered the charge of usurpation: the Convention only proposed, the people decided, and a compact broken by its parties bound no one.
5. North Carolina and Rhode Island stayed out until 1789 and 1790, and joined by their own choice.

What you can do: read Article VII and the Preamble together on the site's Constitution page, then take the civics test and see how many of the original thirteen ratification dates you can place.