Hello and welcome to the Civic Flame, a podcast where we take a deep dive into the US Constitution and talk about how it is, and is not, shaping the US government today. As I come to you, itÕs been a tough time for a lot of our fellow Americans, and IÕve had people asking me whether I think itÕs still worth it to look at the Constitution. I say yes, because our constitutional history is full of difficult times in the US and lessons on how to come back from them. So, weÕre still committed to this, and we hope you are, too. 00:01:11 Article 7 and the Ratification of the US Constitution Today, weÕre on to the end of the Articles: Article 7 and the ratification of the Constitution. (transition) 00:01:32 What the different Articles of the Constitution do WeÕve gone through the first three articles which outlined the branches of government, Article 4 that talks about what states owe each other and what the federal government owes the states, Article 5 with the Amendment process, and Article 6 which explains that the Constitution is the supreme law of the land. WhatÕs next? 00:01:55 Article 7 of the Constitution Article 7 and ratification. ItÕs short and sweet (like me ha ha). Article 7 says, ÒThe Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.Ó Remember when we started as a country, we were 13 states: New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. If youÕve ever seen the Betsy Ross flag, that is the one with the thirteen stars in a circle, thatÕs the original 13. Maine was still part of Massachusetts, West Virginia was still part of Virgina, and Vermont was still its own country 00:02:40 The Republic of Vermont (the Republic of Vermont lasted for 14 years, actually, which is always fun to say to people who go on about the South being the Confederacy for itÕs five year run. When I was growing up most sitcoms lasted longer. But, I digress because I donÕt like traitors.) New Hampshire became the ninth state to ratify the Constitution on June 21, 1788. But, thatÕs still four states left. That seems like a lot of folks who might be living under, and resulted in some legal arguments. 00:03:16 Getting rid of the Articles of Confederation The Articles of Confederation, which was still the law of the land at the time, required that changes be unanimous (which is part of why the Articles of Confederation failedÉit was really hard to amend). So, the question was: does the new Constitution supersede the Articles of Confederation? Or do we have to put the new legal order into place through the existing legal order? Or does the existing legal order matter more since thatÕs what everyone is agreeing to? If youÕre the first 9 states, you donÕt care. But if youÕre those last three, youÕre going to feel pretty ticked off about it. 00:03:59 James Madison in the Federalist Papers on the right to change the government James Madison, who would go on to be the fourth president of the US, wrote in the Federalist Papers, Òin all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to Ôabolish or alter their governments as to them shall seem most likely to effect their safety and happiness.ÕÓ This same argument is actually one of the legal arguments the Confederates used to justify secession from the Union. They said, Òif the Articles of Confederation didnÕt matter and would could change the old legal order with the new legal order based on what the sovereign people of the state want, then we can secede if thatÕs what our people want.Ó 00:04:53 The US, Brexit, and the Legality of Secession ItÕs kind of similar to the Brexit argument: if this is voluntary to be in, itÕs voluntary to be out. Despite the mistakes of the Confederacy (and, honestly, Brexit), the argument does make logical sense. If Article 7 says that we have to all agree in order to be a country, doesnÕt that mean we can revoke our agreement? Given the recent secessionist movements in the US, we might see that same question come back. At the time, though, it was a big argument between federalists (who favored the constitution) and anti-federalists (who did not). This resulted in an important set of arguments with famous federalists like Madison and Hamilton arguing for a stronger central government and the constitutional changes. The Anti-federalists, including people like Sam Adams and Mercy Otis Warren, favored a smaller central government and heavy modification of the Articles of Confederation. 00:06:01 Federalists, Anti-Federalists, and the Bill of Rights This spilled over into discussions of the Bill of Rights. The federalists thought that a bill of rights was unnecessary and would give people the wrong impression that ONLY the listed rights were protected. The anti-federalists pointed out that there was no real place for individual rights in the Constitution and they wanted some guarantees from the federal government. Of course, both sides had some truth: the Constitution did not have guarantees on individual liberties AND in the last 60 years people have decided that the rights specifically listed are the only ones we have. The Bill of Rights is the First Ten Amendments to the US Constitution. Technically, itÕs more of a Bill of Civil Liberties since its job is to carve out particular protections FROM the government. So basically the Federalists won in that they got the Constitution, and the anti-federalists won in that they got the Bill of Rights. Together, the two documents were meant to outline the architecture and responsibilities of government (constitution) while making our government a government of expressed and limited powers or whatÕs called ordered liberty through the Bill of Rights. 00:08:00 What is ordered liberty? The concept of ordered liberty is that individual liberty is important but that in order to ensure it for a majority of people, there has to be some system of laws or institutions safeguarding the general welfare/liberty of all of the people. This is why our constitution is a balancing act between what we can do and what the government can do. 00:08:28 Originalism violates ordered liberty when it strikes down the elected branches IÕll argue a bit in the next few weeks that there are a lot of places the ÒoriginalismÓ theory of the constitution really oversteps what the constitution intended when it overrules the will of the people, but thatÕs because the 9th Amendment speaks directly to the fears of the federalists and says that the rights outlined in the constitution are NOT our only rights. Meaning that we donÕt have to look to the constitution to make something legal, the burden is on the government to prove that they have the power and cause to make something illegal. The power is meant to be in the people, and this becomes difficult when considering the role of judicial review and the Supreme Court. While the Supreme Court is meant to weigh in to protect minority rights from tyranny of the majority, there is also a problem with them striking down valid actions by the elected branches. 00:09:34 Citizens United v FEC undercuts the elected branches A key example of this was in 2010 in Citizens United v FEC. The Supreme Court took this case as a political challenge to the First Amendment, even though, by the CourtÕs own protocols, they donÕt take political questions AND they donÕt Òdecide moreÓ when they can decide less. The case started as what we call a narrow focusÑa look at a specific issue. The Court told them to bring it as a First Amendment case. So, Citizens United did bring it as a case, and the Court ruled 5-4 in favor of Citizens United. Know what that did? It overruled a major section in the Bipartisan Campaign Reform Act or BICRA. Note that BICRA was widely supported by both political parties, as well as by politicians and a vast majority of the American public. The effect this had was catastrophic in our elections because this is the case where the Supreme Court basically said money is free speech and the more money you have the more speech you get. It took most limits off of corporate and union campaign speech and dramatically reduced the elected branchesÕ ability to fix problems with campaign finance reform. Every election since has been more and more expensive, even considering inflation, and this has brought us to a really problematic place where there is a lot of dark money (meaning, we donÕt know where it comes from) going into campaigns from corporations (who donate to both parties to hedge their bets) and from foreign actors. 00:11:22 Check out OpensSecrets.org Despite this catastrophic effect on the political system, the Court said that Congress had no right to enact this kind of legislation because, as the Court read it, corporations were people and free speech meant any entity that wanted to speak. Why this matters here is that it goes against the idea that the people are sovereign. The people, through their elected legislators of both parties, wanted to get money out of politics and ensure a fairer fight. This came especially in light of the accumulation of more money by the top 1% of Americans was already shaping elections. 00:12:48 Justice Stevens dissent in Citizens United and why it remains epic But the Court used its theory of originalism to say Òthe Constitution doesnÕt give power to stop free speech.Ó Instead of saying Òcorporations arenÕt people.Ó Justice Stevens dissent in this case is about 91 pages and is hilarious, if you want to read it. He accurately called out the nonsense of the other judges and predicted what came next. All this is to say that judicial overreach into things that are meant to be the domain of the people comes at a cost to the political system, the way people feel about the courts, and the function of democracy itself. (transition) So, thatÕs our last article of the constitution down and a little bit to understand about the federalist/anti-federalist arguments of the time. Next week we see how this manifests in the Bill of Rights and weÕll start with some discussion of rights versus liberties. Until next time, share widely, follow us on blue sky, Instagram, and substack. In the meantime, take care out there and keep the civic flame burning bright! (outro) 00:14:26 Thank you The Civic Flame is a Dr. Fun Sponge Media project in collaboration with writer Amber Vayo and sound producer Matt Munyon.