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The Drafters and the Ratifiers

It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters.  I am not so sure.

To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism.  Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution.  And that meaning is no more likely to be that of the ratifiers than the drafters.

But some people favor the original intent approach.  Yet, even under this approach, it is not clear that ratifiers matter more than the drafters.  The usual argument is that the drafters simply wrote the Constitution, but it had no authority until it was enacted into law, which only the ratifiers could do.

Let’s assume for a second that this argument is correct.  Even if it were true, it would not apply to constitutional amendments.   Constitutional amendments are enacted through a process that requires both proposing (that is drafting) and ratification.  There are two methods for proposing an amendment: one method has the Congress propose an amendment; another method has a convention do so.  There are also two methods for ratifying an amendment: one method has the state legislatures ratify an amendment; another method has state conventions do so.

Thus, the constitutional amendment process requires both proposing and ratification.  It is entirely unjustified to argue that the ratifiers count for more than the proposers.  It is true that the proposal would not count as law unless ratified.  But it is equally true that the ratifiers could not enact an amendment if it is not proposed in accordance with the constitutional amendment process (if, for example, a majority of both houses of Congress proposed the amendment rather than two thirds of both houses, as the Constitution requires).

Now, lets return to the original Constitution.  The original Constitution was enacted through a different process than amendments are.  The drafting convention in Philadelphia largely acted on its own authority, providing in the document that the ratification by 9 of the 13 states by state conventions would enact the Constitution for the ratifying states.  While the drafting convention did not have authority based on an existing constitution (as the drafting congress or convention does in the amendment process), it did govern the ratification process – the ratifying conventions it required and the 9/13 rule it established were both followed.  Thus, the original drafting convention was an essential part of the constitutional enactment process – both writing the proposed constitution and specifying the process.

The original drafting convention cannot be dismissed as not having a key role in the enactment process.  Yes, it is true that the draft of the Constitution was a mere proposal before it was ratified.  But the ratifiers were following the rules set by the proposal and were not in a position to take these actions without the proposal.  Thus, both the drafters and ratifiers were essential.

Reader Discussion

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on August 28, 2014 at 09:55:48 am

A simple rule (for life as well as law);

First read text as would a common reasonable person until such time or instance as that is incapable of resolving a case or controversy; only then seek the technical (drafters / legal) meaning.

It is also important for a good golf game.

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gabe
on August 29, 2014 at 10:14:41 am

Where I stumble on this issue is over the idea that "reasonable and informed persons" will always and inevitable arrive at identical interpretations of text. I suspect that for some semtences or paragraphs it is reasonable to assume that most reasonable and informed people will read and interpret in the same way. But I do not think this is a fair assumption for all texts all the time. We have only to look at the arguments during the ratification debates over the necessary and proper clause to find reansonable and informed persons reading the same text and arriving at sharply divergent interpretations.

Moreover, I also question the notion that either the debates in Philadelphia or the debates in the various ratifying conventions were based entirely on rational deliberation. Anterior to those debates were anxieties and fears, that shaped the way men both wrote and read constitutional text. Part of what any prudent statesman does is to try to anticipate what might go wrong in the future. And part of what any good constitutionalist does is to try to frame institutions with such fears and anxieties in mind. When we try to recover the hermeneutics of most public texts, we need to keep in mind both the fears of the statesmen and the circumstances and experiences that made those fears plausible.

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Kevin R. Hardwick
on August 29, 2014 at 10:56:04 am

Kevin:

Good to see you back!

Your points are well taken; yet they appear to point us into even murkier areas. You are absolutely right about the debates and the various interpretations that the convention participants placed upon them. In some cases, these interpretations may have provided a convenient cover for a compromise that they made, or compelled another attendee to make, in order to secure an up or down vote. This is, perhaps, one of several reasons for a particular "interpretation."

However, this does not appear to be a very fruitful method of inquiry as these motives / interests and compromises are lost to us and provide no greater informational / motivational content than a straightforward reading of the text. My own preference is to read all text as would an average citizen. Yet, I know that to be "false" and insufficient to arrive, IN ALL CASES, at the intended meaning / application of constitution clauses / purposes.

On the other hand, if you are asserting that there must be something more than either a straightforward populist reading or elitist (legal) reading than I agree wholeheartedly. I would advance this proposition: The default reading should be to take the "common understanding" as the debaters were quite cognizant of the interests and mind of the populace; where that reading is insufficient to resolve matters, the "elitist" or legalist reading should be applied. The elitist reading should incorporate as much scholarship as possible to determine what in fact was intended. This would include, as you suggest, some inquiry into the drafters motivations and compromises. As such (another favorite of mine) it should also include some inquiry as to the aspirational motives of not just the founders but the citizenry. some have argued that the DOI should be the lodestone for constitutional interpretation. This may be so.
Ultimately we are left with text that was deliberately vague. This was so in order to garner wider support for the document / proposed government. It would be nice if the Judiciary were as cognizant of these facts and historical circumstances as are you. Unfortunately, they encounter this vagueness and see an opportunity to be the new "lawgivers."

Anyway, take care
gabe

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gabe
on August 31, 2014 at 13:28:36 pm

Mike, let’s start with; “… it is not clear that ratifiers matter more than the drafters. The usual argument is that the drafters --simply -- wrote the Constitution, but it had no authority until it was enacted into law, which only the ratifiers could do.” The drafters who – with great reasoning and argument – were the ones -- that ALSO ratified the constitution. Yet, there certainly is a great difference between drafter(s) and ratifiers.
When you go into the amendment process you see alternating conflicting argumentation. The first came with the ratification itself. If there were no Bill of Rights – drafters & ratifiers implied -- there would be another national convention – beyond the ratifiers -- concerning the constitution itself. The BOR’s amendments started with conflicting argumentation. Madison was defeated in his desire to include the states into the BOR’s. And, he was also defeated in trying to “incorporate” the BOR’s into the constitution. The drafters unanimously conferred the BOR’s to the approval of the state conventions of the people; which I consider as trilateral (third party people).
I would be remiss if I did not cite (drafter/ratifier) Hamilton’s #80, last paragraph, in the Federalist Papers; incorporation is strictly a legislative term and not a legal term. Quote, “,,, if some partial inconveniences should appear—from this review of the particular powers of the federal judiciary as marked out—to be connected with the “incorporation” of any of them into the plan, it ought to be recollected that -- the national legislature -- will have ample authority to make such exceptions and to prescribe such regulations -- as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed by a well-informed mind as a solid objection to a general principle which is calculated to avoid general mischiefs and to obtain general advantages.”
The Constitution and the BOR’s were both ratified by the conventions of the people. Thus, your conclusion should read; The drafters and ratifiers, and the people were essential.
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins

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