Ratification Clause

Arguing that the Ratification Clause specifies ratification by special convention, rather than by state legislatures, because the Founders recognized “that the dramatic new form of government needed to be sanctioned by the people, rather than merely by the states.”

Arguing that the fact that Article VII required ratification of the Constitution by a supermajority serves as a normative reason for judges to follow the text of the Constitution.

“[O]ffering a detailed examination of the original understanding of” the Ratification Clause in Article VII and arguing that its meaning is based in “the idea that constitutional norms should emanate from the popular sovereign.” Reaching this conclusion by reviewing the Revolutionary era understanding of constitutional ratification, the debate over Article VII at the Philadelphia Constitution, various proposed drafts of the Clause, and discussions of the Clause during the ratification debates.

Responding to Lawson and Seidman and arguing that, while Lawson and Seidman are correct that Article VII established the Constitution, it does not address the question of disestablishment of the Articles of Confederation.

Arguing that the Ratification Clause’s original meaning means that the Constitution became effective on the date the eighth state convention ratified the document, not on the date when the First Congress convened as the Supreme Court has held. However, practically, this means the Constitution took effect in stages, as some parts took effect upon the eighth state’s ratification while others required further specific action to become effective (such as the election of the first President in order for Article II to become effective).

Beginning with the run up to the Philadelphia Convention and continuing through the struggle toward ratification in order to argue that the Ratification Clause in Article VII “assaulted the revisionary process specified by the Articles” of Confederation.

Arguing, contra Ackerman and Katyal, that the ratification of the Constitution was consistent with the Articles of Confederation.