3 - The Birth Logic of a Democratic Constitution

Summary

THE BIRTH OF THE CONSTITUTION

The birth of the U.S. Constitution was marked by two prominent and connected features. First, the process by which the Constitution was proposed and ratified differed radically from the means for constitutional change specified in the extant legal order that preceded the Constitution. At the national level, the Articles of Confederation announced themselves to be perpetual and required for amendment the vote of the Continental Congress followed by confirmation in the state legislature of each of the compacting states. In contrast, Article VII of the Constitution provided for ratification by special state conventions and required the ratification of only nine of the states to launch the Constitution as the highest law (binding only in the ratifying states but fully destructive of the confederated regime nonetheless). At the state level, each of the thirteen state constitutions specified a procedure for amendment. Included were requirements that the state legislature initiate an amendment, that a supermajority of the electorate approve, and that the amendment take place after a certain year or in a specified cycle of years. Article VII's ratification procedure depended on special state conventions rather than legislatures, contained no intrastate supermajority requirement, and paid no homage to temporal requirements in the extant state constitutions. Thus, the Articles of Confederation were annulled and replaced, and the constitutions of the states were subordinated to a national government, all by a careful and elaborate process that ignored the specified channels for foundational change.

Second, the process by which the Constitution was ratified was selfconsciously democratic and driven – at least in part – by a common democratic mechanism, simple majority rule.