Ratifier Intent

• Author: Leonard W. Levy
• Pages: 2120-2121

Page 2120

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...