The point of nine was to get thirteen. Article VII may declare that the Constitution of the United States was the law of the land when ratified by nine states, but both the Framers and text clearly anticipated a union of all thirteen states. Nine encouraged early ratification while preventing holdout states from extracting favorable concessions. The politics underlying Article VII highlights the importance of thinking about how constitutions are supposed to work, rather than worrying exclusively on what words meant at a particular time period.
Article VII taken literally promises a constitutional regime that the Framers agreed was “pernicious” and “destructive.” The Federalist No. 6 declares, “if these States should be . . . only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.” Nevertheless, Article VII contemplates a constitutional regime that does not include Virginia, New York, Massachusetts, and Pennsylvania, a polity bisected in two, with the southern states and New England states in, but Maryland, Delaware, New Jersey, and Pennsylvania out, or two separate nations, with either a separate confederacy composed of Virginia, North Carolina, South Carolina and Georgia or one composed of Massachusetts, Connecticut, Rhode Island, and New Hampshire.
Article VII aside, the Constitution contemplates being the constitution for all thirteen states. The Preamble begins, “We the People of the United States,” and ends, “do ordain and establish this Constitution for the United States of America.” The phrase “United States of America” is taken directly from Article I of the Articles of Confederation, which declares “The Stile of this Confederacy shall be ‘The United States of America.’” “The People of the United States” in the Preamble, thus, refers to the people of all thirteen states and not just the people of the states that ratified the Constitution.
Consider the resulting paradoxes had some states not ratified. Under Article I of the Confederation, non-ratifying states remained part of a confederacy called “The United States.” Under Article VII of the Constitution, only ratifying states composed the United States. Will the real United States please stand up? Article VII declares that the Constitution becomes the official law of the land when ratified by nine states. How did this impact Massachusetts, New York, North Carolina, and Rhode Island the moment New Hampshire ratified on June 21, 1788? Were these unattached states that did not require congressional permission to join the Union and could not be discriminated against under Article I, Section 9? Were they nations that required congressional permission to join the Union and could be discriminated against under Article I, Section 9? When did unattached states become a separate nation or separate nations? The Constitution does not say, and the point was not debated at length.
The Framers did not confront these paradoxes because they never contemplated a union with less than the original thirteen states. Madison defended the logic of requiring nine states for ratification by laying out the consequences if only twelve states ratified. The Federalist No. 40 declares the nine state requirement for ratification “proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth [Rhode Island].” Neither Madison nor any other Federalist defended the merits of a nine state union, which The Federalist Papers claimed would result in an unmitigated disaster.
The nine state requirement of Article VII promoted unanimous state ratification in two ways. States that ratified early got in on the ground floor for making any crucial alterations to the Constitution (the Bill of Rights) and filling in vital constitutional details (the measures establishing the cabinet and federal judiciary). States that held out could not extort better terms. Given the recognized need to be in the Union, Article VII practically guaranteed a process of increasing returns in which the ratification of each additional state increased the odds that every remaining state would ratify.
The framing politics of Article VII worked. Most state ratification debates turned on delegates’ recognition that, for reasons stated in The Federalist Nos. 3-8, their state could not afford to be one of the states initially left out should the Constitution be ratified by at least nine states. Such concerns influenced ratifying conventions in all small states, in Georgia, which needed national defense against Native American tribes, and in all state ratifying conventions that took place after momentum had clearly swung towards constitutional ratification (Virginia, New Hampshire, New York, Massachusetts, North Carolina, and Rhode Island). Crucial votes to ratify in all these conventions were provided by delegates who, after expressing serious reservations about the Constitution, concluded that the best way to change the Constitution was to work from within or that remaining outside the Constitution for any period of time was not a viable option.
Article VII was part of a political program that guaranteed that Americans from 1787 to 1789 would not have the opportunity to vote on whether the constitutional schemes for structuring the national government, allocating power, and protecting rights were particularly desirable. As historian Jack Rakove of Stanford University points out, state conventions voted on the Constitution as a whole, not on any particular provision. By early 1788, state conventions were not even voting on the relative merits of the Constitution and the Articles of Confederation. Once the Constitution acquired some momentum in early state voting, the choice Article VII imposed on most states was to ratify the Constitution immediately or at a later date under less favorable circ*mstances. Given these alternatives, Americans accepted the institutional arrangements, powers, and rights the Constitution enumerated. Given the same choices, they probably would have accepted the institutional arrangements, powers, and rights enumerated in the constitutions of Canada, Mexico, Chile, France, Bulgaria, Mali, Japan, and any other nation whose constitution does not establish a non-Christian religious theocracy.
