Strategic Ambiguity and Article VII: Why the Framers Decided Not to Decide

Abstract

The U.S. Constitution ratified in 1788 contains a lot of appar-ently ambiguous language—abstract phrases like “executive pow-er,” “judicial power,” and “necessary and proper”—the meaning of which seemed to be reasonably debatable. The array of approaches to constitutional interpretation dubbed “originalist” all share the ambition of eliminating these apparent ambiguities by careful ex-humation 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 overwhelmingly drawn from “Federalists”—politicians who favored a strong national government. Because critics of cen-tralization (dubbed “Anti-Federalists” by their Federalist oppo-nents) were simply not present in significant numbers at the draft-ing 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 rati-fication 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 gov-ernment that everyone desired. By proposing and approving delib-erately ambiguous language, Federalist drafters and Anti-Federalist ratifiers could sidestep their most intractable disagreements, mak-ing deliberate ambiguity a rational strategy for facilitating ratifica-tion. Moreover, this rational strategy is also normatively attractive. The critics of the Constitution deeply resented the Article VII pro-cess as an unjust device for “driving [the Constitution] down our throats.” By reducing the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat, the presumption of ambiguity respects contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.