Article VII — Ratification

ArtVII.1 Historical Background on Ratification Clause

In Owings v. Speed¹ the question at issue was whether the Constitution operated upon an act of Virginia passed in 1788. The Supreme Court held it did not, stating in part:

The Conventions of nine States having adopted the Constitution, Congress, in

September or October, 1788, passed a resolution in conformity with the opinions

expressed by the Convention, and appointed the first Wednesday in March of the

ensuing year as the day, and the then seat of Congress as the place, ‘for commencing

proceedings under the Constitution.’

Both Governments could not be understood to exist at the same time. The New

Government did not commence until the old Government expired. It is apparent that

the government did not commence on the Constitution being ratified by the ninth

State; for these ratifications were to be reported to Congress, whose continuing

existence was recognized by the Convention, and who were requested to continue to

exercise their powers for the purpose of bringing the new Government into operation.

In fact, Congress did continue to act as a Government until it dissolved on the 1st of

November, by the successive disappearance of its Members. It existed potentially until

the 2d of March, the day proceeding that on which the Members of the new Congress

were directed to assemble.

The resolution of the Convention might originally have suggested a doubt, whether the

government could be in operation for every purpose before the choice of a President;

but this doubt has been long solved, and were it otherwise, its discussion would be

useless, since it is apparent that its operation did not commence before the first

Wednesday in March 1789 . . . .