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Notre Dame Law School




Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn into office. One must examine each provision to determine to which stage of constitutional effectiveness it belongs. The provisions of the Constitution that limit the power of state governments, for instance, took effect at the first stage and were therefore enforceable law as of June 21, 1788. This understanding has potentially significant consequences for certain litigation involving Native American land claims.


Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 01-07

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