Ratifier Intent

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RATIFIER INTENT

Ratifier intent is a form of original intent or originalism that emphasizes the meanings and understandings of the Constitution possessed by those who ratified it. The ratifiers were the members of the state constitutional conventions that ratified the Constitution. The importance of ratifier intent derives from the widely held opinion that the consent of the governed, who alone were sovereign, legitimated the Constitution. The constitutional convention of 1787 had exceeded its instructions: to recommend revisions of the articles of confederation. Although the Confederation Congress transmitted the Constitution to the states for ratification, thereby implicitly agreeing to the scrapping of the Articles of Confederation, the fact remains that the Convention had violated its commission. Consequently, leading Framers of the Constitution insisted, as james madison said, that "the legitimate meaning" of the Constitution should be sought "not in the opinions or intentions of the body which planned and proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possessed." Thus, as its ratification rather than its framing imbued the Constitution with its legitimacy, so ratifier intent rather than original intent (the understandings of the Framers) defined the text. This is the constitutional theory of the matter as transmitted by the Framers.

One should not have to choose between the intent of the Framers and that of the ratifiers. All contemporary expositions should be considered if they illumine a constitutional issue. Moreover, from the broadest perspective, ratifier intent and original intent almost coincided: government by consent of the governed; majority rule under constitutional restraints that limit majorities; guarantees of rights that prevail against the legislative as well as executive branch; a federal system; three branches of government, including a single executive, a bicameral legislature, and an independent judiciary; an elaborate system of checks and balances; and representative government and elections at fixed intervals. The founding generation also believed in measuring the powers of government, rather than the rights of the people, and they assumed a natural rights philosophy. They concurred on a great many fundamental matters. Without doubt, the Constitution reflects a coherent and principled political philosophy. All of this consensus bespeaks an enormously important and ascertainable set of original understandings shared by Framers and ratifiers, even by Federalists and anti-federalists. But none of this history enables judges to reach decisions favoring one side of a constitutional issue rather than another in real cases that come before courts.

More perplexing still is the fact that ratifier intent with respect to the meanings of particular clauses of the Constitution is more often than not unascertainable. The main reason for this is that the historical record is too skimpy to sustain a constitutional jurisprudence of ratifier intent. In a 1954 report, the National Historical Publications Commission declared that the reporters of the ratification period took notes on the debates "and rephrased those notes for publication. The shorthand in use at that time was too slow to permit verbatim transcription of all speeches, with the result that a reporter, in preparing his copy for the press, frequently relied upon his memory as well as his notes and gave what seemed to him the substance, but not necessarily the actual phraseology, of speeches. Different reportings of the same speech exhibited at times only a general similarity, and details often recorded by one reporter were frequently omitted by another." Reporters used their notes to spur their memories, and their reports were no better than their understandings.

When Jonathan Elliot began publication of his Debates in 1827, he collected the previously published records of the state ratifying conventions. He misleadingly called his collection The Debates in the Several State Conventions, on the Adoption of the Federal Constitution. In fact, Elliot unreliably reported the proceedings of only five states plus some fragments of others. He acknowledged that the debates may have been "inaccurately taken down" and "too faintly sketched." elbridge gerry, a member of the Constitutional Convention who became an Anti-Federalist leader, complained that the "debates of the State Conventions, as published by the short-hand writers, were generally partial and mutilated."

For Pennsylvania, Elliot published only the speeches of two advocates of ratification. The editor of the debates for Massachusetts apologized for his inaccuracies and omissions deriving from his inexperience. He also doctored some speeches and provided a few spurious ones. The reporter for New York made similar remarks and recorded only the debates for the first half of convention's proceedings, reverting to a skeletal journal of motions for the remainder. In Virginia, where the debates were most fully reported and by a reporter sympathetic to ratification, James Madison and john marshall expressed dissatisfaction with the results. Madison informed Elliot that he found passages that were "defective," "obscure," "unintelligible," and "more or less erroneous." Marshall complained that if he had not seen his name prefixed to his speeches he would not have recognized them as his own. He further declared that the speeches of patrick henry, the leader of the opposition, were reported worst of all. Similar criticisms apply to the proceedings of North Carolina, whose first convention rejected the Constitution and whose second was wholly unreported.

These are the five states (Pennsylvania, Massachusetts, New York, Virginia, and North Carolina) whose records provide a basis, however inadequate, for determining ratifier intent. We have only scraps of material for the other states, with the exception of Rhode Island, which ratified so late as to count for nearly nothing. Although the people acting through state ratifying conventions gave the Constitution its authority, the ratifiers' intent should not be confused or conflated with legitimacy. Ratification legitimated the text that the Constitutional Convention recommended; the Convention did not recommend its intention, only the text, and the ratifying conventions only ratified the text, without providing a basis for a constitutional jurisprudence based on ratifier intent or understanding.

Justice joseph story made the definitive rejection of ratifier intent in his Commentaries on the Constitution: "In different states and in different conventions, different and very opposite objections are known to have prevailed. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different state conventions in ratifying the constitution, gave the same uniform interpretation to its language, or that even in a single state convention, the same reasoning prevailed with a majority" (1st ed. 1833, I, pp. 388–389).

Story continued by noting that the terms of the Constitution impressed different people differently. Some drew conclusions that others repudiated; some understood its provisions strictly, others broadly. Ratifiers in different conventions revealed a diversity of interpretations. To thomas jefferson's demand that ratifier intent be honored as much as possible, Story retorted that it was not possible; he ridiculed "the utter looseness, and incoherence of this canon." No way existed to determine "what was thought of particular clauses" of the Constitution when it was ratified. "In many cases no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail?" Story concluded that determining ratifier intent is hopeless because "of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done, as to other eight states?" Ratifier intent, despite its present support by some constitutional scholars, including Robert Bork and Charles Lofgren, is as lacking in historical basis or practical application as it may be theoretically attractive.

Leonard W. Levy
(1992)