In an earlier essay in my “Defending the Constitution” series, I responded to the common charge that the 1787 Constitutional Convention abused its trust. The charge is that the commissioners (delegates) exceeded the scope of the convention “call” issued by Congress. In response, I pointed out that Congress did not call the Constitutional Convention; Virginia did. And the scope of the commissioners’ power was not defined by Congress but by the states, which granted them sufficient authority to recommend a new Constitution.

The present essay addresses a related charge. It is that the framers acted improperly when they provided that the Constitution would become effective if ratified by only nine states. The critics say that the approval of all 13 states and the Confederation Congress should have been required, because that is what the Articles of Confederation mandated.

A quick answer to these charges is that even if the framers acted improperly, no harm came of it. Congress did not object. On the contrary, it voted to send the Constitution to the states for ratification. And within three years all 13 states had ratified the document.

That’s the quick answer. But the dimestore-lawyers who criticize the framers should know that there are more accurate and thorough answers, based squarely on the law of the time.

Stay with me as we go through the steps. Much of what follows is material you learn during the second year of law school. And the modern law in this area is pretty much the same as it was during the Founding Era.

‘One People’

The Declaration of Independence defined the United States for purposes of international law. It presented Americans to the world as “one people.”

This “one people” initially operated through 13 separate state sovereignties. This is a common situation in international affairs. For many years the German people were governed by a multitude of sovereignties, and during the Cold War they were governed by two. Before 1870, the Italian people were divided among several different countries. The same situation still exists for the Chinese, Korean, Irish, and Arab peoples.

Agency

According to agency law, “principals” empower “agents.” According to 18th-century political theory, the people, as principals, conferred power on public officials as their agents. When Independence was declared, the American people living in different locations granted governmental power to different sets of agents—the officials of the several states.

In 1781, the state governments terminated the Continental Congress and formally entered into the Articles of Confederation, which created the Confederation Congress. Under the Articles, the states, as agents of the people, granted limited powers to the Confederation Congress. As a result, the Confederation Congress became an agent of the states and a subagent of the people.

Keep in mind that under agency law (then as now) a principal may revoke or change an agent’s authority at any time, and the principal may entrust all or part of that authority to other agents.

The Nature of the Articles of Confederation

Today we think of a “confederation” as a single, although decentralized, polity. An example is the Confoederatio Helvetica—the modern Swiss Confederation. But during the 18th century, a “confederation” was defined as a mere treaty organization—much like the North Atlantic Treaty Organization (NATO). In other words, the Articles were a treaty, and the Confederation Congress was a coordinating body analogous to NATO’s North Atlantic Council.

A treaty is a contract. If one party seriously breaches, the other parties may withdraw from the treaty entirely. By the time the Constitutional Convention met, several states had breached the Articles of Confederation by not complying with Congress’s financial “requisitions” and by undercutting the 1783 treaty of peace with Great Britain. As James Madison pointed out, these breaches permitted any other state to leave the Confederation.

The People Approve the Constitution

Unlike the Articles, the Constitution created a government based directly on “We the People.” The Constitution would be ratified by the American people rather than by the state governments. The document provided that:

  • Ratification or rejection would come from conventions directly elected by the voters for the sole purpose of considering the Constitution.
  • The instrument would go into effect only if conventions of nine states approved it.

Why nine? Because any combination of nine states (even the nine with the smallest populations) would comprise a majority of American citizens. In other words, even if the five most populous states refused to ratify, the remaining nine still would represent a majority of the people. (We can see this from the Constitution’s initial allocation of the House of Representatives. Article I, Section 2, Clause 3.)

“But,” you might object, “what if nine small states 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 practically impossible. The framers knew the odds for ratification in Pennsylvania (the second most populous state) were very high. If only nine states ratified, Pennsylvania would be among them and would assure an overall majority of the American people. Also, the Constitution would be a dead letter unless Virginia (the most populous state) or New York (fourth or fifth) joined in—further assuring a popular majority.

So the framers had good reason to believe that if the Constitution did come into effect, it would do so by the will of a majority of America’s “one people.”

Why Congressional Approval was not Necessary

Some people complain that the Confederation Congress was not asked to approve the new Constitution. But this is silly. When you are firing an agent and replacing him with a new one, you don’t need the consent of the agent being fired.

Even so, the Convention did send the Constitution to Congress, and without objection that body forwarded it to the states for ratification.

Apparently, the only reason Congress did not formally vote to approve the Constitution was a technical legal one: Some members believed the Articles granted them no power to approve a proposal of this nature.

Thus, any condition that Congress approve the Constitution was legally impossible to fulfill. Lawyers would deem that condition waived.

Still, Congress Did Approve

In any event, Congress’s vote to send the document on to the states can be considered consent through silence.

We don’t need to guess about that. Abraham Clark represented New Jersey in the Confederation Congress. On Feb. 4, 1789, the New Jersey Journal newspaper published a letter from him explaining his vote for the resolution sending the Constitution to the states:

“Notwithstanding my dislike to some parts [of the Constitution], considering the situation the United States was in, and the provision made in the Constitution for amendments, I cheerfully gave my assistance to send it to the states for their consideration, judging that New-Jersey [sic], from its local situation and circumstances, could not with propriety reject it, notwithstanding its imperfections: presuming at the same time, that the new Congress would endeavor to amend it as soon as other important business for putting the government into operation would admit.”

“Could not with propriety reject it” means, of course, “it would be improper to reject it.” Clark’s approval may have been somewhat grudging (although Clark says it was “cheerful”). But it was still approval.

Clark’s letter doesn’t tell us what other members of Congress were thinking, but it buttresses the commonsense view that by sending the Constitution to the states Congress effectively consented to it. Indeed, the congressional journals for that day show not a single objection to the Constitution from any member of the Confederation Congress.

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