Ratification; method and significance of
7/23 The nineteenth Resolution, referring the new Constitution to Assemblies to be chosen by the people, for
the express purpose of ratifying it, was next taken into consideration.
Mr. ELLSWORTH moved that it be referred to the Legislatures of the States for ratification. Mr. PATTERSON
seconded the motion.
Colonel MASON considered a reference of the plan to the authority of the people, as one of the most important
and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the
State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the
Constitutions -- he knew there was no power in some of them -- that could be competent to this object. Whither,
then, must we resort? To the people, with whom all power remains that has not been given up in the
constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished, as
the basis of free government. ... There was a remaining consideration, of some weight. In some of the States,
the governments were not derived from the clear and undisputed authority of the people. This was the case in
Virginia. Some of the best and wisest citizens considered the Constitution as established by an assumed
authority.
7/23 Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These
changes would make essential inroads on the State Constitutions; and it would be a novel and dangerous
doctrine, that a Legislature could change the Constitution under which it held its existence. There might indeed
be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of
the Federal compact. But there were certainly some which had not; and in the case of these, a ratification must
of necessity be obtained from the people. He considered the difference between a system founded on the
Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a
Constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political
operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a
pre-existing law might be respected by the Judges as a law, though an unwise or perfidious one. A law violating
a Constitution established by the people themselves, would be considered by the Judges as null and void.
Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article
by any of the parties frees the other parties from their engagements. In the case of a union of people under one
constitution, the nature of the pact has always been understood to exclude such an interpretation.
8/31 Mr. MADISON: The people were, in fact, the fountain of all power, and by resorting to them, all difficulties
were got over. They could alter constitutions as they pleased. It was a principle in the Bills of Rights, that first
principles might be resorted to.