The Magical Number Nine and the Ratification of the Constitution

Revolutionary-era Americans were a constitution-making people. On several occasions during the debate over the ratification of the Constitution of 1787, it was said that Americans knew more about the nature of government and liberty than any other people in the world. During the Revolutionary era, Americans wrote more than a dozen state constitutions, two federal constitutions, and many amendments to these constitutions.

One crucial aspect of constitution-making is to provide a procedure for the adoption of the proposed constitution. All of the first state constitutions were declared by fiat to be operational by the revolutionary bodies that wrote them. That procedure changed in 1780 when the Massachusetts proposed constitution was submitted to the people in town meetings followed by a ratifying convention.

The Second Continental Congress submitted the Articles of Confederation to the states in November 1777 providing that it needed to be adopted by all of the state legislatures. It took three and a half years to achieve this mandated unanimity. The Articles stipulated that amendments needed to be approved by Congress and then “confirmed” by all of the state legislatures. Several amendments to the Articles were proposed by the Confederation Congress, but none were adopted by all of the states. Other amendments introduced in Congress never received the approbation of that body.

When the Constitutional Convention met in May 1787, the procedure for ratification of its proposal was a serious consideration. Knowing that a unanimous state approval was impossible, the Convention devised a unique procedure for ratification that comprised the Seventh Article that concluded the Constitution.

The Virginia Plan, submitted to the Constitutional Convention on 29 May 1787, provided that Congress first approve the proposed Constitution and then submit it to the state legislatures, which, in turn, would then call state conventions to consider ratification. On 5 June Roger Sherman of Connecticut objected to this procedure preferring instead to continue using the procedure in the Articles of Confederation. James Madison of Virginia opposed ratification by state legislatures arguing philosophically that the Constitution needed to be adopted directly by the people or their immediate deputies. From a practical political perspective, Rufus King of Massachusetts favored ratification by conventions because it was simply easier in that most state legislatures were bicameral as opposed to single-bodied conventions. Furthermore, state legislatures would be reluctant to approve a constitution that reduced their powers. Pierce Butler of South Carolina also preferred conventions because state legislators had taken oaths to support their governments.

Charles Pinckney

James Wilson of Pennsylvania wanted ratification by a simple majority of the states. States that had not initially ratified could join the Union subsequently. Charles Pinckney of South Carolina suggested that nine states should be sufficient for ratification.

After a week’s postponement, the Convention on 12 June approved the Virginia Plan’s ratification provisions by a vote of 6 to 3 with two states divided. At this point, William Paterson introduced the New Jersey Plan which retained the amendment procedure in the Articles of Confederation. On 20 June, debate resumed on the ratification procedure—George Mason of Virginia and Nathaniel Gorham of Massachusetts favored conventions while Oliver Ellsworth of Connecticut and Elbridge Gerry of Massachusetts favored legislatures. Hugh Williamson of North Carolina then proposed that each legislature should decide what method its state was to use. A month later, Gouverneur Morris of Pennsylvania proposed that one general convention of the states should decide on ratification. No delegate seconded Morris’ proposal.

Edmund Randolph

On 30 August, James Wilson proposed that seven states be sufficient to ratify the Constitution. Gouverneur Morris suggested that a greater number of states be required if the ratifying states were not contiguous. Edmund Randolph of Virginia then said that nine states would provide “a respectable majority of the whole,” and was “familiar” because the Articles required the approval of nine states for the passage of important matters such as declaring war, borrowing money, ratifying treaties, and admitting new states into the Union. Wilson now suggested eight states, Butler nine, and Daniel Carroll of Maryland and Roger Sherman supported all thirteen states. Morris then revived Williamson’s proposal allowing each state legislature the prerogative of choosing the method it favored. A vote then took place on requiring all thirteen states to ratify, which was rejected unanimously except for Maryland. A proposal for a ten-state requirement was defeated 7 states to 4. On 5 September, the Convention accepted the provision not requiring congressional approbation and having Congress transmit the Constitution to the state legislatures which would call conventions with nine state ratifications needed to implement the Constitution among the ratifying states.

Five days later, on 10 September, Gerry objected to the omission of congressional approbation and “to an amendment of the confederation with so little scruple or formality.” Alexander Hamilton of New York also wanted congressional approbation, but he thought that each state convention should decide if nine states were sufficient to “take effect among the nine ratifying states.” Nathaniel Gorham strenuously objected to Hamilton’s proposal. Randolph then vowed not to sign the Constitution unless the state conventions “be at liberty to offer amendments to the plan” which would be submitted to a second general convention “with full power to settle the Constitution finally.” A proposal by Hamilton to require congressional approbation with implementation by nine state ratifications was rejected by a ten-to-one vote. The non-approbation of Congress with implementation of the Constitution among the adopting states after nine states had ratified was then approved unanimously.