either a general government or state governments. . . . This, I say, is the inherent and unalienable right of the people.” The Declaration of Independence, he concluded, strengthened and affirmed this principle. Quoting from the Preamble, Wilson emphasized that, to secure the rights of life, liberty, and the pursuit of happiness, “governments are instituted among men, deriving their just powers from the consent of the governed. . . . This is the broad base on which our independence was placed. On the same certain and solid foundation this [new] system is erected.”29
The fact that the delegates were not meeting in the Continental Congress, as required by the Articles, but in a constitutional convention—for the sole purpose of “revising the Articles of Confederation”—gave a clear indication even before the Convention got under way that the old way of writing a constitution, much as a legislative assembly would draft a statute, was no longer acceptable. In the first days of the convention, Governor Edmund Randolph presented the Virginia Plan to the delegates, a proposed constitution, much of it apparently written by Madison, that served as the principal focus of debate during the early stages of the Convention. The 15th Resolution of the Virginia Plan, embodying the principles of the Virginia resolution of 1786, provided “that the amendments which shall be offered to the Confederation by the Convention, ought . . . to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people, to consider and decide thereon.”30 In effect, the Virginia Plan rejected the very procedure required by the Articles of Confederation and proposed instead that the American people approve any changes of a constitutional nature in State ratifying conventions.
Notwithstanding the progress that had been made in Massachusetts and New Hampshire, a few New England delegates at the Philadelphia Convention expressed opposition on June 5 to this “new set of ideas [which] seemed to have crept in since the Articles of Confederation were established.”31 But the Virginians held their ground. A radical departure from the procedure prescribed by the Articles was justified, said Madison, “because the new constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.” To be sure, “the Articles of Confederation were defective in this respect, resting . . . on the legislative sanction only.”32 George Mason agreed. When the issue came up again on July 23, Mason declared that he “considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The legislatures have no power to ratify it. They are the mere creatures of the State constitutions and cannot be greater than their creators.” Constitutions, he insisted, “are derived from the people. This doctrine should be cherished as the basis of free government.” Pointing to recent developments in the States, he reminded the delegates that “In some States, the governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.”33 These arguments carried the day, and the issue was not again debated in the Federal Convention.
Hearing no objections, the Framers abandoned the unanimity requirement and in Article VI of the new Constitution provided that “The Ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” Randolph and Mason were the chief supporters of nine, as nine States were required for important legislation under the Articles, and it was best, they argued, to preserve ideas already familiar to the people. As a concession to the States, the Framers provided under Article V that two-thirds of both houses of Congress or the States could in the future propose amendments to the Constitution, but that ratification would require the approval of the States—either three-fourths of the State legislatures or three-fourths of the States meeting in convention. The inclusion of these provisions gave the new Constitution an important democratic element it lacked under the Articles while at the same time preserving the principle of State representation in the amendment process. By giving the States the last word at the ratification stage, the Framers also made the States the final arbiters of any major constitutional conflict that might trigger the amendment device. These principles were further extended to the new bicameral Congress under the Constitution, with the House of Representatives serving to represent the people and the Senate the States. Ironically, the creation of the Constitution in 1787 is the only instance in which the State legislatures have initiated a change of the fundamental law since the Constitution was adopted. All the amendments since then have been proposed by Congress, and only one of these—the Twenty-first, repealing the Prohibition Amendment—has been ratified by State conventions. All the rest have been approved by State legislatures.
The document that ultimately emerged from the Federal Convention resembled the State constitutions more than it did the Articles of Confederation, although a few provisions involving such matters as interstate relations were carried over to the new system.34 State precedents also influenced the constitution-making process. Like the newer State constitutions, the American Constitution was created by a special convention, not a legislative assembly. It would be proposed for ratification not by the State legislatures but by the people of each State sitting in convention. If adopted, it would be a constitution resting on the consent of the governed and on popular sovereignty—not “the people” abstractly considered in an inchoate mass, however, but the people organized in the various States. In this respect, the Constitution rested on a unique form of divided sovereignties, with ultimate political sovereignty residing in the people and legal sovereignty shared by the States and the national government.35 The American people, in other words, would be the source of all political power under the proposed plan of government, as contrasted with a monarchical system, wherein all power originates in the crown.36 According to the English theory, the government is also the source of individual rights, as contrasted with the American perspective, which holds that rights originate with the people and are, according to the Declaration of Independence, “endowed by their Creator.” These principles respecting the origin of power and rights under the American system are affirmed in the Ninth and Tenth Amendments of the Federal Constitution. Under the Constitution the people retain certain undefined rights and powers. The enumeration of certain rights in the Constitution shall not be construed to deny others retained by the people, and those powers which the people did not retain for themselves they delegated to the States or to the national government. Critics of the Constitution were quick to argue that sovereignty cannot be divided and that the proposed system would therefore fail. To be sure, as a constitutional, democratic, and federal republic of delegated powers, the new American system of government was an experiment in politics without historical parallel.
THE RATIFICATION STRUGGLE
Given the unavoidable controversy surrounding the legality of writing a new constitution and the opposition of many important political leaders, there was considerable doubt when the delegates left Philadelphia whether nine States could be persuaded to ratify the proposed Constitution. The first hurdle was the Continental Congress. Could it be counted on to vote itself out of power? Fortunately, Congress made no issue of the Convention’s authority to draft a new document when, on September 20, 1787, it received the Convention report on the Philadelphia proceedings and a copy of the proposed Constitution. On September 28, the Congress voted unanimously to transmit “the said report, with the resolutions and letter accompanying the same . . . to the several legislature, in order to be submitted to a Convention of delegates chosen in each State, by the people thereof.”37
Thus began the ratification struggle. All thirteen States ultimately ratified the Constitution, and by June 1788 it had become the law of the land. The first State to ratify was Delaware, which voted unanimously in favor of the new Constitution on December 7, 1787. Five days later, Pennsylvania accepted the document by a vote of 46 to 23. New Jersey and Georgia soon joined these States, both by unanimous votes, followed by Connecticut, which accepted the Constitution on January 9, 1788, by a vote of 128 to 40. From this time forward, however, the struggle over ratification intensified and the possibilities for failure increased. In some State ratifying
