Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide

74 Pages Posted: 26 Sep 2019

Date Written: September 17, 2019

Abstract

The U.S. Constitution ratified in 1788 contains a lot of apparently ambiguous language — abstract phrases like “executive power,” “judicial power,” and “necessary and proper” — the meaning of which seemed to be reasonable debatable. The array of approaches to constitutional interpretation dubbed “originalist” all share the ambition of eliminating these apparent ambiguities by careful exhumation of facts about linguistic usage and constitutional purposes in existence when the Constitution was ratified. This article argues that Article VII’s two-stage ratification process is one such original fact suggesting that apparently ambiguous language ought to be construed as deliberately ambiguous. That process gave the drafters at the Philadelphia convention (the first stage) incentives to choose deliberately ambiguous language as a strategy to mollify critics of the Constitution in the state ratifying conventions (the second stage). The drafters at Philadelphia were overwhelming drawn from “Federalists” — politicians who favored a strong national government. Because critics of centralization (dubbed “Anti-Federalists” by their Federalist opponents) were simply not present in significant numbers at the drafting stage, the Federalists could not use clarifying amendments to determine precisely what their opponents would tolerate in the ratifying conventions. Because Article VII did not permit the state ratifying conventions to approve clarifying amendments, the ratification process created a risk that, offended by specific language in an unamendable proposal, Anti-Federalist ratifiers would reject the entire proposal and doom the project of a stronger central government that everyone desired. By proposing and approving deliberately ambiguous language, Federalist drafters and Anti-Federalist ratifiers could sidestep their most intractable disagreements, making deliberate ambiguity a rational strategy for facilitating ratification. Moreover, this rational strategy is also normatively attractive. The critics of the Constitution deeply resented Article VII as a device for “cramming the Constitution down our throats” through its reversion threat. The presumption of strategic ambiguity reduces the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat that violated contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.

Keywords: Originalism, U.S. Constitution, Agenda-Setting, Article VII, Ambiguity, Original Public Meaning, Textualism, Ratification Debates

Suggested Citation

Hills, Roderick Maltman, Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (September 17, 2019). Available at SSRN: https://ssrn.com/abstract=3454955 or http://dx.doi.org/10.2139/ssrn.3454955

Roderick Maltman Hills (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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