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Constitutional FAQ Answer #148

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Q148. "In class today, we learned that the Constitution had to be ratified by nine state conventions. Why conventions and not votes by the people and why not by the state legislatures?"

A. There are good reasons why the Framers specified, in Article 7, that the Constitution was to be ratified by conventions rather than directly by referenda or by the legislatures.

The Framers wanted the Constitution to be legitimate. It changed things pretty drastically from the Articles of Confederation. The only way the felt it could be truly legitimate was if the people agreed with it. The legislatures of the states were chosen by the people of the states, and you might think they would be a good way to ensure the people were heard. But the Framers knew that state legislatures were, well, political. They had more on their plates than this new constitution. Would the debate about ratification compete with debates about taxation or criminal law or land rights? To keep the debate on the document only, the debate had to be kept out of the legislatures. Additionally, the new constitution was going to restrict the powers of the states drastically, and some legislatures might be dead-set against the Constitution from the beginning for that very reason.

Direct vote by people might have been an attractive alternative except for a few issues. First, aside from the town meeting model used in a few New England states, the entire body of the people never voted on anything in those days. It is rare even today ‚ÄĒ few states have a referendum model today, California being a notable exception. So there was no real precedent for the entire populace to vote. Second, the Framers felt that the Constitution would best be received if it was well-debated. In the days before mass media, it would be hard for a reasonable debate to take place (some would argue in the days of mass media, it is still hard to have reasonable debate). In a convention, with manageable numbers of members, debate would be much easier. Lastly, the issue of slavery was a sticking point. Would the Framers specify the slaves could vote? Or freedmen? Or beyond the issue of slavery, landless persons or even (gasp) women? By specifying conventions, each state's own rules for delegates and electors would be in place.

Conventions, then, were the best of both worlds. They represented the people but did not include the unmanageable mass of the entire populace and avoided sticky issues of eligibility.

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