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.