On November 21, 1789, the people of the state of North Carolina ratified the United States Constitution. On May 29, 1790, the people of the State of Rhode Island also ratified the U.S. Constitution. Yet, despite the good-faith acts of these two states and their citizens, the respective admission into the United States of both polities was characterized by an aberration which rendered their admittance constitutionally suspect. More specifically, by the time North Carolina and Rhode Island ratified the Constitution, it was already in effect. Both states were, therefore, independent political societies that had no constitutional relationship with the United States. Accordingly, under the express terms of Article IV, §3, of the U.S. Constitution, it was necessary to admit them by an Act of Congress.
Congress, however, inexplicably neglected to perform the constitutional due diligence required of it and did not pass legislation to admit either North Carolina or Rhode Island, choosing instead to acquiescently accept their respective ratifications as the legal instrument of admission. By allowing the ratifications to stand, Congress manifestly failed to observe the carefully-specified requirements for the admission of new states. Because the Constitution was in effect and operative, its provisions were ineluctably and indisputably the supreme law of the land.
Commencement of the Constitution
According to the United States Supreme Court, the Constitution legally took effect on March 4, 1789, as the question of the Constitution’s commencement date was presented to the Court in 1820, in the case of Owings v Speed.[1] In deciding the case, the Court was obliged to meticulously review the sequence of transitional events that occurred as the states withdrew from the government under the Articles of Confederation and subsequently inaugurated the Constitution. Furthermore, the plaintiff’s claim in the case was entirely dependent on the judicial determination of when the Constitution became effective.And in its decision, the Court directly contradicted the plaintiff’s assertion of a 1788 commencement date and settled the issue when it announced, “it is apparent that its operation did not commence before the first Wednesday in March, 1789.”[2]
While the language of the Supreme Court relative to March 4 is perhaps implicit in Owings, in 1981, the United States District Court for the Northern District of New York gave an affirmative interpretation to the declaration made in Owings. The District Court, in the case of Oneida Indian Nation of New York v. State of New York, announced; “The Court in Owings ruled that the Constitution did not become operative until the first Wednesday in March of 1789, the date set by resolution of the old government.”[3] In addition to the authority of the Supreme Court, an abundance of historians and scholars have also identified March 4, 1789, as the date on which the Constitution became effective. Perhaps the most prominent among them is the celebrated nineteenth century Supreme Court Justice and Harvard Law Professor Joseph Story, who in his masterful exegesis Commentaries on the Constitution wrote; “on Wednesday, the 4th of March, 1789, congress assembled under the new constitution, and commenced proceedings under it.”[4]
Despite the pronouncement of the courts, and contrary to the pronouncement of the erudite Joseph Story, there remains a competing school of thought which asserts that either June 21, 1788, or July 2, 1788, is the date on which the Constitution became effective.[5] Both dates are maintained upon the theory that Article VII is self-executing and either New Hampshire’s ratification of June 21, or the confirmation by the Confederation Congress of New Hampshire’s ratification on July 2, automatically triggered its provisions. But even subordinating the traditionally recognized and widely accepted date of March 4 to this theory, it is immediately apparent that these earlier dates only make the admission of North Carolina and Rhode Island more problematic.
North Carolina and Rhode Island Sovereign and Independent
Article VII makes it abundantly clear that under the U.S. Constitution, no state can be compelled or coerced to join the union.[6] In Federalist 39, James Madison perspicuously expounded on this admirable principle. Madison wrote; “Each state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”[7] Accordingly, and thoroughly consistent with this Jeffersonian ideal of government by consent, each state was at perfect liberty to withhold its ratification and preserve its political independence. And as of March 4, 1789, that is the course that both North Carolina and Rhode Island were following.
The historical facts regarding the status of North Carolina and Rhode Island as independent and separated from the United States are often overlooked, but they are hardly controversial. In July 1788, as the North Carolina delegates debated ratification, Gov. Samuel Johnston, who also acted as the convention’s presiding officer, cautioned the delegates against rejecting the Constitution by exclaiming; “in my humble opinion, we shall be entirely out of the Union, and can be considered only as a foreign power.”[8] Offering an identical view and expressing frustration at the dilatory nature of Rhode Island’s ratification process, Vice President John Adams wrote to two esteemed Rhode Island merchants and bluntly remarked; “if the Convention should reject the Constitution or adjourn without adopting it Congress will probably find it necessary to treat them as they are, as Foreigners, and extend all the laws to them as such.”[9]
Additionally, there is an array of prestigious contemporary scholars who unhesitatingly acknowledge the historical reality that both North Carolina and Rhode Island were outside of the union as of March 4, 1789. One such scholar is Professor Akhil Amar, of Yale University, and when he contemplated the political and constitutional status of North Carolina and Rhode Island in his highly acclaimed book America’s Constitution: A Biography, he commented; “We must remember that when George Washington took office, North Carolina and Rhode Island were not part of the United States as the Constitution used the term.”[10] And the late MIT historian Pauline Maier agreed, as she too considered the political status of North Carolina and Rhode Island and their initial refusal to ratify the Constitution. In her widely praised work Ratification: The People Debate the Constitution 1787-1788, she observed; “Two states remained out of the Union, and there the struggle would continue.”[11]
Constitutional Requirements for Admitting New States
The sole method by which new states are admitted into the United States is promulgated and governed by Article 4, §3, of the Constitution. In particular, it declares, “New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.”[12] The language is clear and explicit, and in strict conformance with its demands on February 4, 1791, the first U.S. Congress passed legislation admitting Kentucky into the union. And unlike the admission of North Carolina and Rhode Island, in Kentucky’s case, Congress scrupulously followed the enumerated requirements of Article IV. Specifically, section 2 of the Act which admitted Kentucky proclaimed; “the state of Kentucky, shall be received and admitted into this union, as a new and entire member of the United States of America.”[13]
Approximately two weeks later, on February 18, Congress again faithfully followed the dictates of Article IV, and using virtually identical language, passed legislation admitting Vermont by announcing; “the State of Vermont, shall be received and admitted into this Union, as a new and entire member of the United States of America.”[14] The admission of Kentucky and Vermont make it apparent that the First Congress thoroughly understood its Article IV constitutional responsibilities, despite the fact that it somehow disregarded those obligations regarding North Carolina and Rhode Island. The omission is almost certainly due to the status that both North Carolina and Rhode Island held as original states, and they were indeed among the original thirteen states which successfully won their political independence from the British Crown.
Nevertheless, Article IV grants Congress no authority to legislatively discriminate between original states and new states, as under the Constitution, all states are considered perfectly equal. In short, the term original state has no constitutional significance, and it does not convey any special privileges or prerogatives. Consequently, Congress had no more authority to admit North Carolina and Rhode Island into the union through ratification than it did to admit Vermont and Kentucky in the same way. It was, therefore, an egregious error that Congress did not admit North Carolina and Rhode Island as stipulated by Article IV.
Conclusion
It is well worth observing that these historical observations have no practical consequences or political implications of any kind. The time for any objection on constitutional grounds is long past, and there is no doubt that both North Carolina and Rhode Island have honored histories as esteemed members of the United States. But it is also true that the original admission of both states was, regrettably, unconstitutional.
[1]Owings v. Speed, 18 U.S. 5 Wheat. 420 420 (1820).
[3]Oneida Indian Nation v. New York, 520 F. Supp. 1278, 1284-85 (N.D.N.Y. 1981).
[4]Joseph Story, Commentaries on the Constitution of the United States (Boston, MA: Hilliard, Gray, and Company, 1833), 108.
[5]One distinguished scholar who advances this theory is Jethro K. Lieberman. Professor Lieberman noted, “Cyrus Griffin, president of Congress, formally announced on July 2, 1788, that the Constitution had been ratified by the requisite nine states and was in effect.” Jethro K. Lieberman,The Evolving Constitution (New York, NY: Random House, 1987), 131.
[6]U.S. Constitution art. VII. “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
[7]Robert Scigliano, ed., The Federalist Papers(New York, NY: Random House, 2000), 243.
[8]Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2nd ed. (Washington, DC: Editor on the Pennsylvania Avenue, 1836), 4: 223-224.
[9]John Adams to John Brown and John Francis, February 28, 1790, in Patrick Conley, “Rhode Island in Disunion,” Rhode Island History 31 (November 1972), 113.
[10]Akhil Amar, America’s Constitution: A Biography (New York, NY: Random House, 2005), 27.
[11]Pauline Maier, Ratification: The People Debate the Constitution 1787-1788 (New York: Simon & Schuster, 2011), 430.
[12]U.S. Constitution art. IV.
[13]United States Statutes at Large. Act of February 4, 1791, Ch 4, Stat. 3.
17 Comments
Can anyone help me please? I’m looking for a book that tells the reasons behind the South joining the North in the Revolution. Pretty much like the Raphaels’ “The Spirit of 74: How the American Revolution Really Began” just about the Southern colonies. For those who don’t know, the Spirit of 74 only talks about Massachusetts.
Very interesting article by the way.
Matt: No modern book comes to my mind focusing solely on the South. But if anyone knows of a good one, I would be interested. I would rely on 1774: The Long Year of Revolution, by Mary Beth Norton. It covers the period prior to 1774 up to April 1775. It covers all the colonies and is excellent. My own view is that all the colonies had a similar take on British oppression and the desire to control their own destinies. If you are looking for the preservation of slavery as the reason the South joined in the fight for independence, you won’t find it in the 1774 book or other books by serious Am Rev scholars, because that was not a major factor. Britain at the time was the greatest slave trading nation in the African slave trade and its Caribbean colonies, through slave labor, created great wealth for Britain. Britain posed no threat to the Southern institution of slavery in 1774-1776. In fact, the American Northern colonies posed more of a threat, as I argued in my three-part article on the African slave trade for All Things Liberty published in 2020. Best, Christian
Christian: I’m actually looking for all the possible sources refuting the “preserve slavery” narrative.
I’m working on a project to debunk the ahistorical claim that independece came due to slavery. By the way, I read your articles – which I’m going to cite in my work – and I take this opportunity to congratulate you on the excellent work you have done.
That being said, thank you for the help, I will certainly take the book into consideration.
Best regards,
Matt
Thanks Matt and best of luck! The Atlantic Monthly editor said something like there was “deep authority” for the position. I did some digging and found almost no references to original sources to support the position. The books typically cited for the proposition tend to cite to themselves, but they are secondary sources. The only topic with possible legs is Dunmore’s Proclamation, but I doubt anything would have changed if that had not occurred.
The claim is based on assumptions that have no historical validity.
All the clues point in the opposite direction. When the First Continental Congress petitioned the King in 1774, they asked His Majesty to address grievances. The Americans only made mention of the Coercive Acts – which did not affect slavery in any way.
The British Parliament and the King never mentioned slavery when discussing the American crisis. If the Americans were really concerned about the Kingdom abolishing slavery, they would have explicitly asked the King to preserve the institution at least in the American colonies, when writing the petition.
There is so much material to debunk this flawed narrative…
About Dunmore’s Proclamation, the Americans knew it was just a strategic move. Slavery was the bulk of 18th century Virginia’s economy and society. Without the institution, the colony was useless for the Empire, why fight a war over it? Makes no sense. By the way, the Declaration of Independence stands as proof that the Americans were aware of Dunmore’s real intent; in listing the reasons that led to them declaring independece, Jefferson wrote: “He has excited domestic insurrections amongst us…”
This made me smile from ear to ear this morning. It’s a nice reminder that the course of human events is messy, imperfect, and often fuzzy, something we would all do well to remember as we study our past, live in our present, and plan for our future. Thank you for the piece!
I’m very glad you enjoyed the essay Eric.
Fabulous article David! I read it while I am sitting in a house in Rhode Island. I don’t know, I would be concerned about a constitutional challenge to RI and NC being represented in Congress and electing electors for the Electoral College!
Thank you Christian, but not worries, RI and NC are both perfectly secure.
My understanding is that there was an implied Congressional approval coming out of the Constitutional Convention to admit all 13 States that had been part of the Articles of Confederation so long as they ratified the new Constitution. All 13 had been part of the previous Union and Article VI of the new Constitution starts out
“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
Once nine States had ratified as required by Article VII, the new Constitution would immediately cover the remaining four States as “Engagements entered into, before the Adoption of this Constitution.” Therefore when New Hampshire ratified the new Constitution on June 21, 1788, the remaining four States, Virginia, New York, North Carolina, and Rhode Island, were automatically covered under the new Constitution, even though they hadn’t ratified yet.
The fact that the first Congress didn’t convene until the following March does NOT mean the Constitution didn’t go into effect until then. It just means the new Congress didn’t start work until then. The new Constitution went into effect on June 21, 1788.
There are those who argue that Mike, and I mentioned it in the essay. And that makes things more complicated, because both Virginia and New York also ratified after that date. That means, of course, that their respective admissions were also unconstitutional.
I love the opening photo of Benjamin Russell’s Federal Edifice cartoon which he began in January 1788 just prior to MA ratification. Robert Alexander’s article on the “Grand Federal Edifice” (See https://archive.csac.history.wisc.edu/grand_fed_edifice.pdf ) provides a nice summary of this imagery in addition to the problems associated with NC and RI ratification. As a collector of early newspapers, I have managed to secure several copies of this earliest of American political cartoons documenting MA, MD and NH ratification. Thanks for the constitutional insight, particularly during these trying times when our governing document has been severely tested.
Agreed! Art. VII states that “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.” Since RI and NC were both states that were asked to ratify the Constitution, it did not not matter when they ratified the document, they had the option of entering in this manner without having to follow the procedure required for “new states” in Art. IV, Sect. 3. That being said, ratification of the Constitution by NH on 6/21/1788 was sufficient to place the document into effect.
Jim, your quoting of Article VII is compelling. I suppose the term “the states ratifying the same” could be interpreted to mean just the first nine states that ratified the Constitution. But under that theory, states #10 and #11, and well as NC and RI, would be treated as “New States,” which they were not. Perhaps consultation with Madison’s Notes and the Federalist Papers are in order! In any case, this was a fun article and topic.
I enjoyed this piece and the comments. Two issues should be touched on that bear directly on the ratification process itself. One, it was considered illegal by Anti-federalists because the Articles of Confederation required unanimity to amend that document. That, of course, was something that never happened during its short life. Two, Rhode Island was seen as the state that would always stand in the way of unity among the original thirteen confederated states (never mind whether Vermont should have been included from the get go!). So, the new ratification process rectified the unanimity problem by requiring only nine states to approve the Constitution. But in many ways, the whole Constitution might be seen as illegal, ratification process notwithstanding, because it not only threw out the baby with the bathwater, but it built a new tub entirely. There are those who, consequently, have argued that the constitutionality of the Constitution itself might be called into question. That said, I do find the question of whether NC and Rhode Island’s admittance followed the Constitution’s requirements to be a most interesting one, and one I had not thought of.
We must not confuse the act of ratifying the Constitution with being admitted to the Union. Both North Carolina and Rhode Island were already IN the Perpetual Union which constituted the Country, along with the rest of the original 13, at the time of adoption of the new Constitution, and all had been full members for about a decade at that point. The last line in the Constitution makes note of the age of the Union when the new Constitution was first adopted.
All of the original 13 had created the Constitution as a massive amendment of the Articles of Confederation, except for the fact of the already existing Perpetual Union which was left untouched, and were being asked to ratify that massive amendment.
The Preamble stated the intention to perFECT that existing Union, and in fact no attempt was made to create a whole brand new Union, since they already had one.
I’d like to point out there’s a similar issue with Ohio’s admittance to the Union. Congress approved an enabling act in 1802, allowing Ohioans to form a state government but when the Ohioans presented their new constitution to Congress in Feb. 1803, they never formally approved it. Congress just admitted Ohio’s new Senators and Representatives and that was it.
In 1953, when an Ohio school teacher found out there was no formal act admitting Ohio to the Union, Congress passed ceremonial legislation retroactively pinning Ohio’s admittance to March 1, 1803.