Early in The Invisible Constitution, Professor Tribe notes that the Constitution of 1789 was ratified by a process not authorized by the previous United States Constitution, the Articles of Confederation. This point is frequently asserted, but I am not sure that it is entirely accurate.
Article 9 of the Articles of Confederation, the provision that dealt with constitutional amendments (called “alterations”), provided: “. . . nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”
On September 17, 1787, the Constitutional Convention ratified its proposed Constitution and submitted it to the Confederation Congress which was then assembled in New York. On September 28, Congress voted unanimously to transmit the proposal to the states. Although Congress did not formally endorse the proposed changes, its unanimous decision to pass the proposal along to the states arguably satisfied the “agreed to in a Congress of the United States” portion of the amendment process.
The states in turn authorized the calling of state conventions to vote on the “alterations” with the understanding that each state was to be bound by the determination of its convention. (The conventions were not a requirement of the Articles but had been specified by the seemingly “unconstitutional” Ratification Clause of the proposed Constitution.) The final requirement of Article 9 of the Articles of Confederation — confirmed by the legislatures of every state — was met on May 29, 1790, when the legislatively authorized Rhode Island ratifying convention accepted the new Constitution. (May 29, 1790, was also Patrick Henry’s 54th birthday and exactly 58 years before the admission to the union of the state of Wisconsin.)
The constitutional illegitimacy argument to which Professor Tribe refers stems from the fact that the Confederation Congress, relying upon the Ratification Clause of the proposed new constitution rather than Article 9, declared the new Constitution in force on March 4, 1789, fifteen months prior to Rhode Island’s ratification. (In fact, as of that date neither Rhode Island nor North Carolina had ratified.) In the months between March 1789 and May 1790, the United States Senate was convened, George Washington was inaugurated as the first president, and Congress adopted a long list of landmark legislation including the Judiciary and Process Acts of 1789, the first tariff, the first Naturalization Act, the Patent Act of 1790, and acts creating the departments of State, War, and the Treasury. It also drafted the Bill of Rights amendments and sent them to the states.
If the Constitution of 1789 didn’t become effective until May of 1790, then none of these actions was legitimate. Consequently, since such acts are the bedrock of American constitutionalism, the only conclusion must be that it was not necessary for the Founders to follow literally the terms of the Articles of Confederations. Not necessarily. To assume that governmental action can be legitimate only if it is authorized before it is taken is to embrace a view that is both conceptually crabbed and inconsistent with the American constitutional experience. One has only to look at the early months of the Lincoln administration to see that such a principle is not always the norm. To deal with the secession crisis, Lincoln suspended the writ of habeas corpus, ordered the arrest of Southern-sympathizers in states like Maryland, imposed a blockade on Confederate ports, and impressed the state militias into national service, all powers that under Section I of the Constitution are assigned to the legislative branch, not the executive.
However, when Congress went into session several months later in the fall of 1861, it quickly ratified Lincoln’s actions, and when the constitutionality of the president’s conduct reached the Supreme Court in The Prize Cases in 1862, the Court upheld the president’s actions, at least in part because they had been subsequently authorized by Congress.
The same logic applies in 1790. When North Carolina and Rhode Island subsequently ratified the Constitution of 1789, they also approved the actions already taken by the new Congress and established conclusively the “alterations” contained in the new constitution were legitimate. Had either state refused to ratify, then the legitimacy of the actions of the First Congress would be a valid question, but once the requirements of Article 9 were met, the issue became moot.
In other words, not just the spirit, but also the letter, of the Articles of the Confederation was followed during the transition from one constitution to the next.
I have not yet had a chance to blog on Judge Sarah Evans Barker’s intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not “make sense” or is “unworkable.” I don’t say that it can never be done (as Justice Scalia has said, “I, too, am a sinner”), but it is a principle with no readily defined stopping point.