Roderick M. Hills, Jr. (New York University School of Law) has posted Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide on SSRN. Here is the abstract:
The U.S. Constitution ratified in 1788 contains a lot of apparently ambiguous language — abstract phrases like “executive power,” “judicial power,” and “necessary and proper” — the meaning of which seemed to be reasonable debatable. The array of approaches to constitutional interpretation dubbed “originalist” all share the ambition of eliminating these apparent ambiguities by careful exhumation 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 overwhelming drawn from “Federalists” — politicians who favored a strong national government. Because critics of centralization (dubbed “Anti-Federalists” by their Federalist opponents) were simply not present in significant numbers at the drafting 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 ratification 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 government that everyone desired. By proposing and approving deliberately ambiguous language, Federalist drafters and Anti-Federalist ratifiers could sidestep their most intractable disagreements, making deliberate ambiguity a rational strategy for facilitating ratification. Moreover, this rational strategy is also normatively attractive. The critics of the Constitution deeply resented Article VII as a device for “cramming the Constitution down our throats” through its reversion threat. The presumption of strategic ambiguity reduces the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat that violated contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.
This is a deeply interesting paper that addresses an important set of issues. Hills is surely correct that originalist constitutional theory must offer an account of the multistage process of constitutional communication. My account differs in several ways from Hills. I believe that the process involves more stages, with a simplified model including drafting (mostly done by Gouvernour Morris), the deliberations of the Committee of Style and Arrangement, deliberation and alteration on the floor of the Philadelphia Convention, transmission to the public and state legislatures, then to the ratifying conventions, and then to the officials of the new government. It is important to remember that deliberations took place at the local level before representatives to the ratifying conventions were elected or selected. A full account of constitutional communication must take the multistage sequence into account.
Unlike Hills, I believe that it is important to distinguish ambiguity (multiple senses) from vagueness (borderline cases) and open-texture. True strategic ambiguity (using words or syntactic structure with more than one meaning after contextual disambiguation) is relatively rare, but the constitutional text contains many important provisions that are vague or open textured. I agree with Hills that the Federalists had incentives to offer interpretations and constructions of the constitutional text in the ratification process that would mollify Anti-Federalists. The intricate syntax of the Necessary and Proper Clauses and their relationship to the Preamble, described by John Mikhail may be an example of deliberate ambiguity. If you are interested, I highly recommend Mikhail's The Necessary and Proper Clauses, cited by Hills. The situation with respect to vague and open-textured provisions is different. These provisions create underdeterminate communicative content, which must be resolved through some process of constitutional construction.
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