Ratification of the US Constitution

Article VII Required Less than Unanimous Consent

Jul 21, 2009

From March, 1781 to March, 1789 the United States operated under the Articles of Confederation. Amending the Articles required unanimous consent.

The Articles of Confederation was the original operating document of the United States. Under the Articles there was a weak central government. The government had little authority to raise revenue and in keeping with the concept that each State was sovereign in its own right, the Articles required unanimous consent of the States to be amended.

Convention Called to Amend Articles of Confederation Proposes New Constitution

In May of 1787 the Confederation Congress authorized a convention in Philadelphia to propose amendments to the Articles. Instead of proposing amendments, the Constitutional Convention presented a new Constitution. This proposed Constitution was presented to the Confederation Congress and sent to the States for ratification late that year.

Change in Philosophy, Doing Away with Unanimous Consent of the States

The government of the proposed Constitution was vastly different from that under the Articles. Perhaps the most profound philosophical change was in the Constitution’s Articles V and VII on amendments and ratification respectively.

These Articles provided for amendment and ratification with less than unanimous State consent. Article VII, the ratification provision reads as follows:

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”.Creating a Nation Rather than an Alliance

This requirement of only nine of thirteen states for ratification and ¾ of the States for amendments meant the relinquishment of significant sovereignty by the individual States. When unanimous consent was required each State had an equal say in changes. Under ths Constitution, member States would become subordinate to the federal government. This change was monumental in that this group of States would become a nation rather than an alliance.

Constitution Sent to State Ratifying Conventions

When the Confederation Congress sent the proposed Constitution to the States, ratification was far from certain. There were political battles to be fought inside each State. There was widespread campaigning between two groups, the Federalists (favoring the Constitution) and the Anti-Federalists (opposing the Constitution). The retelling of this story can be found in Gordon Lloyd’s article, “The Six Stages of Ratification”.

The first State to ratify was Delaware on December 7, 1787. By terms of Article VII, the Constitution became effective with the ratification by New Hampshire on June 21, 1789. A new Constitutional government was formed in March, 1789. The States of North Carolina and Rhode Island had not yet ratified, and so were not initially part of the new order.

Did the United States have Two Governments for Nearly Two Years?

This situation raises an interesting historical legal question. Since the Articles of Confederation required unanimous approval to change, but the Constitution did not require unanimity to go into effect did the United States legally have two operating documents from June 21, 1788 until May 21, 1790, when Rhode finally ratified?

It was with Rhode Island’s ratification that there was unanimous approval of the States to change the Articles, but the Constitution, by its terms was effective with New Hampshire’s ratification nearly two years earlier. It appears the Founding Fathers decided to overlook a few legal niceties to get the job done.

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