Ratification of the First Amendment: The Whale Satisfied
Congress eventually approved twelve amendments to the Constitution and on September 26, 1789, asked President Washington to forward copies of them to the executives of the states, including the now "foreign" states of Rhode Island and North Carolina. Congress's work was completed, its constitutionally assigned function of "propos[ing]" alterations of the Constitution performed. Yet the amendments had no legal significance until ratified by three-fourths of the states, and the decisive act therefore is not congressional proposal but state assent. Madison saw this clearly. In an 1821 letter to Thomas Ritchie he investigated the "proposal-ratification" dilemma in the cognate context of the 1787 document. His remarks apply with equal force here:
As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. . . . The legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must not be in the opinions or intentions of the Body which planned and proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses. 1
In theory, the understanding of the state legislators should govern historical interpretations of constitutional amendments, including the Establishment Clause.
Unhappily practice has not conformed to theory. Although the Supreme Court has generally affirmed the ascendancy of state ratification--relegating congressional debates to near insignificance-- 2 the justices typically find the relevant history to be that of congressional speeches or the views, public or private, of