Instructions: The federal Constitutional Convention in Philadelphia has recently drawn to a close on September 17, 1787. Pursuant to Article VII, the proposed Constitution would become established when nine out of the thirteen states ratify the document. Throughout 1787 and 1788, the states will hold ratifying conventions, where delegates vote on whether to adopt the proposed federal Constitution. During this period, you are asked to address questions that were posed by delegates from five state conventions: Massachusetts, New Hampshire, Virginia, New York, and North Carolina. Please address each of these five questions in no more than 1,000 words.
During the summer of 1787, delegates from twelve states met in Philadelphia to draft a new federal Constitution. (Rhode Island did not participate.) The delegates concluded their work on September 17, 1787. Article VII of the Constitution provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Several states ratified the Constitution with ease in the span of two months: Delaware on December 7, 1787, Pennsylvania on December 12, 1787, New Jersey on December 18, 1787, Georgia on January 2, 1788, and Connecticut on January 9, 1788. The first contentious vote came in Massachusetts.
On January 9, 1788, the ratification convention began in Massachusetts. The delegates noticed a tension in the text of the Constitution. The first part of Article V explains the process by which the Constitution could be amended:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
However, the latter portion of Article V imposes limitations on the amendment process:
Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
(a) Discuss how the Constitution can prohibit the people from ratifying certain amendments. Pay attention to the nature of the amendment process and how the Constitution can be changed.
(b) Discuss why the delegates at the federal convention ensured that “the first and fourth Clauses in the Ninth Section of the first Article” could not be amended before 1808.
(On February 6, 1788, Massachusetts became the sixth state to ratify the Constitution.)
On February 13, 1788, New Hampshire began its ratification convention. As one of the least populous states, the New Hampshire delegates worried that the more populous states—with greater representation in the House of Representatives—would exert greater control on the federal government.
On June 21, 1788, New Hampshire becomes the ninth state to ratify the Constitution, but recommended the addition of twelve amendments. The first proposed amendment stated:
“That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.”
This proposed amendment was similar to Article II of the Articles of Confederation, which provided that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
Question 2: Discuss how the addition of this proposed amendment would change the scope of the powers of the federal government and those of the states. Pay attention to Article I’s enumeration of Congress’s powers.
On June 2, 1788, Virginia commenced its ratification convention. One of the most vigorous opponents of ratification was George Mason, who had participated in the federal convention in Philadelphia. He complained that because the Constitution lacked a Bill of Rights, the federal government would have the power to violate liberties of speech, conscience, and other “essential and unalienable Rights of the People.”
Question 3: Discuss why, even in the absence of a Bill of Rights, Congress would lack the powers to violate these liberties. Pay attention to Article I’s enumeration of Congress’s powers.
(On June 27, 1788, Virginia becomes the tenth state to ratify the Constitution, over George Mason’s negative vote. The delegates submitted twenty proposed Amendments for Congress to introduce during its first session.)
New York began its ratification convention on June 17, 1788. During the discussion of Article III of the proposed Constitution, one delegate offered the following resolution:
“Resolved, as the opinion of this committee, that nothing in the Constitution now under consideration contained shall be construed so as to authorize the Congress to constitute, ordain, or establish, any tribunals, or inferior courts, except such as may be necessary for trial of causes of admiralty and maritime jurisdiction, and for the trial of piracies and felonies committed on the high seas; and in all other cases to which the judicial power of the United States extends, and in which the Supreme Court of the United States has no original jurisdiction, the cause shall be heard, tried, and determined in the state courts, with the right of appeal to the Supreme Court of the United States.”
Question 4: Discuss the strengths and weaknesses of this resolution. Pay attention to the relationship between the state courts, the Supreme Court of the United States, and the not-yet-created inferior federal courts.
(On July 26, 1788, New York becomes the eleventh state to ratify the Constitution.)
North Carolina commenced its first ratification convention on July 21, 1788. Two weeks later, the delegates of North Carolina voted to neither ratify nor reject the Constitution. By that point, eleven states had already approved the Constitution. The first federal Congress convened on March 4, 1789, even though North Carolina and Rhode Island had not yet ratified the Constitution. The following month, George Washington took the inaugural oath. The new federal government was beginning, without any representation from North Carolina.
On November 16, 1789, North Carolina commenced a second ratification convention. The delegates expressed a more profound concern. The Philadelphia convention was called two years earlier “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein.” Instead of proposing mere “alterations,” the Delegates drafted an entirely new Constitution. Furthermore, the Philadelphia convention did not follow the proper procedure for revising the Articles of Confederation. According to Article XIII of the Articles of Confederation, any changes must be “confirmed by the legislatures of every state.” Article VII of the Constitution, in contrast, declared that the Constitution would be established if conventions in nine out of thirteen states voted to ratify. The North Carolina delegates recognized that their votes were futile. The new federal government would continue with or without them.
Question 5: Discuss the significance of the fact that the ratification process that was provided in Article VII of the Constitution, disregarded the required amendment process that was provided in Article XIII of the Articles of Confederation.
(On November 21, 1789, North Carolina becomes the twelfth state to ratify the Constitution. Rhode Island became the thirteenth, and final state to ratify the Constitution on May 29, 1790.)