Groups opposed to calling an Article V convention often cite an old letter written by the late Chief Justice Warren Burger opposing such a convention. It is strange that those groups should be quoting Berger, because they also purport to oppose the liberal activism—notably the abortion decision of Roe v. Wade—practiced by the Court when Burger was Chief Justice. (Burger voted with the majority in Roe.)
As it turns out, however, Roe v. Wade offers us a hint as to why Burger would write a letter opposing a convention for proposing amendments.
Burger seems to have known very little about Article V. He wrote his letter well before the publication of modern research on the subject. Unlike Justices Rehnquist and Stevens, he appears never to have heard an Article V case. Supreme Court justices sometimes publish articles on issues they have researched, but the legal databases reveal nothing on Article V ever published by Burger. Indeed, his ignorance of the subject appears in the letter itself, which erroneously labels the gathering a “constitutional convention” and repeats the old myth the 1787 convention exceeded its authority.
So, why would he write so firmly about a procedure of which he apparently knew little? Again, Roe v. Wade offers a clue.
In the 1960s (before Burger was Chief Justice) the Supreme Court embarked on a course of extreme liberal activism. The Court’s decisions triggered repeated calls for constitutional amendments to overrule them. For example, Senator Everett Dirksen (R.-Ill.) led a very successful application campaign (33 states signed on) for a convention to partially reverse some of the Court’s edicts on legislative apportionment. In response, liberal defenders of the Court widely popularized the claim—repeated by Burger in his letter—that an Article V convention would be uncontrollable.
Contrary to some expectations, the Court continued to be nearly as activist after Burger became Chief Justice. Roe v. Wade is a premier example. That case, and some others, provoked more calls for constitutional amendments to curb what many believed was very arrogant bench.
Burger’s letter was written soon after he retired, but it essentially acknowledged that he had vigorously opposed an Article V convention while serving as Chief Justice also.
In other words, he was protecting his court from the only viable procedure the people could use to overrule it: the amendment procedure of Article V.
This was a natural impulse on Burger’s part. But it is hardly the kind of evidence that should persuade anyone on the merits of holding an Article V convention.
Particularly anyone who purports to oppose judicial activism of the kind represented by Roe v. Wade.
Some alarmists are comparing an Article V convention to the Republican and Democratic National Conventions. The argument is that an amendments convention can be manipulated or stampeded just as a national party convention can be.
The comparison is absurd—so much so that it shows mostly a lack of knowledge of the Article V process.
First, consider the national party mob scenes. The 2012 Democratic convention had 5554 delegates; the GOP conclave 2286. To forestall any stampede, each was tightly time-limited and controlled from the front. Most of the delegates were not particularly distinguished: They were selected for party loyalty and because they had agreed to support a particular candidate. They had little or no effective input.
Now contrast this with the practice of multi-state conventions.
America’s last general convention of states (Washington, D.C., 1861) had 132 commissioners. All were selected as their respective state legislatures determined. In practice, most were chosen either by the legislatures themselves or by governors with the consent of one or both chambers. The commissioners were certainly not at the intellectual level of our Founding Fathers, but they were a distinguished and sophisticated group. They successfully crafted a compromise amendment that, if ratified, might well have prevented the Civil War.
Of course, there are more states now than there were in 1861, so we can expect a bigger convention. But because each state has one vote, there is little incentive to send huge delegations.
How large is a modern multi-state conclave likely to be? History gives us a clue.
I have been able to identify 14 official multi-state conventions since 1776. (By “official” I mean that participation was authorized by the state legislature or, in the recess of the legislature, the executive.) The average size of each state committee has been about five. The median has been between three and four.
Thus, a reasonable estimate is that a convention for proposing amendments might contain about 250 commissioners—less than 5% the size of the Democratic National Convention. It could be even smaller if the states agreed beforehand to limit the size of their committees.
Because these commissioners will be selected by and responsible to their respective state legislatures, they, too, will be a seasoned group. They certainly will not be readily manipulated or stampeded.
Article V opponents need to stop fabricating objections and work to ensure that if a convention happens, it does so successfully.
Filed under: All Postings, Article V, The Founding, supreme court
In 1988, Oxford University Press published Russell Caplan’s book Constitutional Brinksmanship. It revealed some of the extensive history behind the Convention for Proposing Amendments in Article V of the Constitution.
More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.
Anti-convention alarmists were generally unaware of this history and have been embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!
But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.
And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.
Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.
Listed below are a few of the cases that have used history to interpret Article V. A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.
* Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).
* Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)
* Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).
* Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).
* Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).
* United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)
* Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)
* Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)
A new book, edited by Professor Neil H. Cogan, has just been issued in which well-known constitutional scholars from across the political spectrum explore issues of state interposition, nullification, and secession.
I am among the contributors: I wrote the second chapter, which is entitled James Madison and the Constitution’s Convention for Proposing Amendments.
My chapter explains the background of the convention for proposing amendments, and the evolution of James Madison’s thoughts on the subject. Some have used a carefully isolated quotation to claim that Madison was opposed to the amendments convention concept, but in fact the quotation reflected his opposition only to a 1789 convention call that he deemed too broad and pre-mature. Moreover, Madison grew more friendly to the concept as he progressed in life, and eventually promoted it as a far better alternative than nullification.
My chapter includes extensive citations to Madison’s letters, as well as to a variety of Founding-Era sources.
May state legislative applications limit an Article V convention? Subject, yes; specific language, probably not (Part II of 2)
As noted in my last post, some excellent constitutional scholars believe state applications for a convention for proposing amendments may limit the convention to voting “yes” or “no” on a specifically-worded amendment. A prescribed-wording application, they say, reduces the fear of a “runaway” convention and places the state legislatures in the equal position with Congress that Article V of the Constitution was designed to give them.
I agree with those scholars that state applications may limit the convention to one or more subjects. But I think the risks of trying to limit the convention to an up-or-down vote on a specifically-worded amendment are just too great. The risks are legal, political, and practical.
The Legal Problems.
I believe there is a good chance courts reviewing prescribed-wording applications would invalidate them as not qualifying as proper “applications” at all. Here’s why:
* The text of the Constitution grants the convention, not the applying state legislatures, the power to “propos[e] Amendments.” The Framers could have drafted language permitting the states to propose amendments directly (some modern commentators have suggested such an approach), but they did not. One possible reason is the belief that a convention of all the states is more likely to produce a well-thought-out, widely-acceptable proposal than two-thirds of states, meeting apart before the convention has even opened.
* While it is true that a purpose of Article V is to give state legislatures a role co-equal to Congress as a promoter of amendments, that purpose is served by the make-up of the convention: a gathering of state delegations, chosen and instructed by the state legislatures.
* A long line of court cases holds (almost without dissent) that assemblies empowered by Article V must enjoy a certain amount of deliberative freedom (although this does not mean infinite deliberate freedom). See, e.g., Miller v. Moore, 169 F.3d (8th Cir. 1999); Bramberg v. Jones, 20 Cal. 4th 1045, 978 P.2d 1240 (1999); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens). Thus, the courts have voided measures, such as ballot language and referenda, that try to dictate to Article V legislatures or conventions how they are to conduct their business. Although prescribed-wording applications still would allow the “convention for proposing amendments” to vote a measure up or down, the courts might well rule that Article V requires that a proposal convention (as opposed to a ratification convention) be given more deliberative freedom than that. The reasons follow.
* Although some parts of Article V are too clear to require interpretation, see, e.g., United States v. Sprague, 282 U.S. 716 (1931), the precise meanings of other parts are less obvious. In those instances, the courts use the historical and legal background to interpret the meaning of words and phrases in Article V. See, e.g., Opinion of the Justices, 167 A. 176 (Me. 1933) (using historical materials to construe the meaning of a state ratifying convention); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens) (using Founding-Era materials to interpret “ratify” and “ratification”); Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E. 2d 1226 (1977) (using Founding-Era materials to interpret “application”); Berlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (referencing Founding Era and other materials to interpret “Legislatures”). Thus, Founding-Era history and, to a certain extent subsequent history, is of great importance in interpreting Article V.
* The name “convention for proposing amendments” tells us that this is a proposing convention. The Founders would have distinguished it both from a plenipotentiary convention (with very broad powers) and from a ratifying convention (limited to an up-or-down vote). These distinctions were well understood.
* The invariable practice for multi-state (and, before Independence, multi-colony) proposing conventions was for the entity applying for or calling the meeting to provide it with specific problems to work on, but also to grant the commissioners (delegates) the deliberative freedom to do so—something like the modern business or government problem-solving task force. This was true from the late 17th century through the Founding Era.
* The Founding-Era evidence is buttressed by subsequent practice. Nineteenth century proposing conventions, such as the Washington Conference Convention of 1861, worked within the same pattern. As far as I can tell, limiting an interstate proposal convention—in fact, limiting any interstate convention—to an up-or-down vote would be unprecedented.
* Limiting the convention to the role of “Answer the question: Yes or no? Which is it?” is inconsistent with the status of the interstate convention as an assembly of respectable and equal sovereigns. It certainly is inconsistent with the international law usages upon which the American multi-state convention was based. And that is no doubt one reason it would be unprecedented.
* When a court examined the pre-1787 history for understood meanings of “application” and “call,” the court would find that no application or call for a multi-colony or multi-state convention (and there were over 30 such gatherings) ever tried to limit the scope to an up-or-down vote on prescribed language.
* The court also might consider that until the late 20th century, it was unprecedented for an applying state to even try to limit an Article V amendments convention to prescribed wording.
Political and Practical Problems.
* The Framers inserted a convention into the amendment process presumably because the convention setting encourages collective deliberation, compromise, and conciliation among all the states, not merely among those that apply. Deliberation requires the ability to weigh alternatives.
* A proposal deriving from a convention of all states is more likely to be acceptable to the country than one imposed by two-thirds of the states. Two-thirds of the states might even represent less than half the population of the country; this is impossible at an amendments convention and almost impossible among the three-quarters of states necessary to ratify.
* Even if the courts uphold prescribed-wording applications, the language of the amendment is likely to be torn apart by opponents, and any substantial vulnerability will kill the entire enterprise. If the convention is ever called, it would have no power to amend the proposal to meet legitimate objections.
* State lawmakers enjoy being creative, and that means that in the world of real politics, legislative applications always vary. When the applications address a broad subject (such as “congressional term limits” or “federal balanced budget amendment”), this situation is manageable. But when applications must specify the precisely-identical wording, then variations probably can’t be counted together to reach the two-thirds threshold necessary for a convention.
For such reasons, I recommend that applications specify their general subject(s), but not try to limit the convention to voting “aye” or “nay” on indelible language.
In my last post, I described the procedure by which we have recovered the meaning of the Constitution’s “convention for proposing amendments.”
But agreement on the principal facts does not imply complete agreement on the details. A prime example: We know that the state legislatures may limit the agenda of the convention to a single topic. But does that mean a generic topic (such as “federal term limits”) only? Or may the legislatures limit the convention to an up-or-down vote on a specifically-worked amendment?
For a number of reasons, I think the courts would insist that the convention be given drafting discretion—that is, more discretion than allowed in an up-or-down vote on pre-set wording. I’ll discuss my reasons another time.
Some excellent scholars disagree with me. Michael Stern is the former Senior Legal Counsel for the U.S. House of Representatives, and the author of the “Point of Order” blog. He believes that the convention can be limited to considering specific wording. He bases his argument in part on the work of Prof. Michael Rappaport, one of the nation’s leading constitutional scholars. Professor Rappaport’s study of the original meaning of Amendment V concluded that that meaning at least permits the state legislatures to so limit the convention’s agenda.
Listen to Mark Levin’s interview of Rob here. (Go to Aug. 29 podcast, and fast forward to minute 55.)
This past week, conservative icon Phyllis Schlafly contributed a short piece to Townhall.com in which she attacked the movement for an Article V convention. As I wrote in my response, she was relying on claims about the convention that had been superseded by modern research.
You can classify modern Article V writing in three broad waves. (There are many exceptions but the generalization is valid, I think.) The first wave consisted of publications from the 1960s and 1970s, typically by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler, Duke’s Walter Dellinger, and Harvard’s Lawrence Tribe.
Typically, these authors concluded that a Article V “constitutional convention” (as they called it) could not be limited to a single subject. That, as we now know, was a mistake. A related error was their assumption that when the Founders referred to a “general” convention they meant a convention with unlimited subject matter. Actually, a “general convention” meant one in which all the states, or at least states from all regions, participated. It was the opposite of a “partial” or regional convention, and it had nothing to do with the scope of the subject matter.
The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.
Also in the First Wave was a 1973 study sponsored by the American Bar Association. The ABA did conclude that a “constitutional convention” could be limited, but was not a very solid piece of work, perhaps because (if my information is accurate) the principal writers were not professional scholars, but a pair of law students.
The Second Wave began in 1979 with a publication issued by President Carter’s U.S. Office of Legal Counsel and written by attorney John Harmon. For its time, it was a particularly thorough piece of work. Among the other authors in this wave were Grover Rees III, and the University of Minnesota’s Michael Stokes Paulsen. The most elaborate publication of this era was by Russell Caplan, whose book, Constitutional Brinksmanship, was released by Oxford University Press in 1988.
Second Wave authors accessed far more material than their predecessors. They paid more attention to the 1787-90 ratification debates. Caplan even made some reference to earlier interstate conventions. Most of them (Paulsen was an exception) correctly concluded that an Article V gathering could be limited.
But Second Wave writers did make some mistakes. They continued to refer to an Article V conclave as a “constitutional convention.” Some of them assumed, as some First Wave writers had, that Congress had broad authority under the Necessary and Proper Clause to regulate the convention and the selection and apportionment of delegates. None investigated the records of other interstate conventions in detail, or fully grasped their significance.
The Third Wave began in the 21st century. Its contributing authors include the University of San Diego’s Michael Rappaport, former House of Representatives Senior Counsel Mike Stern, the Goldwater Institute’s Nick Dranias, and myself. We have been able to place the Article V convention into its larger legal and historical context.
Like most of the Second Wave writers, we understand that an Article V convention can be limited. But we also have learned a lot of other things: the gathering is not a constitutional convention, it was modeled after a long tradition of limited-purpose gatherings, and it is governed by a rich history of practice and case law.
We also know that the Necessary and Proper Clause does not apply to conventions. That clause gives Congress power to make laws to carry into execution certain enumerated powers and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” But a convention for proposing amendments is not part of the “Government of the United States” nor is it a “Department or Officer thereof.” Supreme Court precedent, as well as the wording of the Constitution, make this clear. For this and other reasons, congressional powers over the process are quite limited.
A few days ago, a friend sent me a 1987 report issued by the U.S. Justice Department. The title is “Limited Constitutional Conventions Under Article V of the United States Constitution.” As the date would suggest, this is a typical Second Wave publication. In addition to labeling an Article V Convention as a “constitutional convention, it also assumes that a “general” convention is one that is unlimited as to subject matter. It shows no familiarity with any previous interstate conventions other than the 1787 gathering. It makes the erroneous assumption that the latter meeting was called by Congress under the Articles of Confederation. It fails to understand the nature of the convention as a meeting of commissioners from state legislatures. It asserts erroneously that all 19th century state applications were for an unlimited convention. (In fact, several were limited.) And it makes the inaccurate assumption that Congress has power under the Necessary and Proper Clause to prescribe procedures for an amendments convention.
Such documents are of historical interest, but they should no longer be taken as authoritative.
Some political activists argue for repeal of the 17th amendment. In other words, they want to end popular elections of U.S. Senators and return to the original constitutional system of election by state legislatures.
Repeal advocates argue that the pre-17th amendment system better preserved federalism than does direct election.
Whatever the theoretical merits of their position, those activists need to either answer some hard questions or apply their energies elsewhere.
The first question is how they are going to overcome a big reality of practical politics: Popular election is, well. . . popular. In 2010, the revelation that a Colorado U.S. Senate candidate had once favored repeal probably cost him the election.
Yet, getting a constitutional amendment passed requires super-majority support, not super-majority opposition.
Advocates also have to address an institutional problem: The U.S. Senate, consisting as it does of politicians who owe their position to direct election, is unlikely to consent to a congressional resolution repealing the electoral rules that got them elected.
So that means that any repealer will have to be proposed, or at least threatened, by a convention of the states under the Constitution’s Article V. But some of the most fervent supporters of repeal strongly oppose such a convention. In other words, repeal advocates are not only a minority, they are a minority strategically divided among themselves.
Finally, repeal advocates need to address some real problems that plagued the former system.
What problems? Basically three:
1. Smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). After 1850, cases multiplied in which candidates purchased Senate seats from state lawmakers. Some outrageous national scandals helped provoke the move to direct election.
2. State legislatures often couldn’t agree on a Senate candidate. For example, one legislative chamber might favor one candidate while the other chamber favored another. The result was deadlock. Legislatures sometimes balloted for months on end while their state remained under-represented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905—a period of only 14 years—there were 45 deadlocked senatorial elections in 20 different states!
Deadlock often was broken by “stampeding”—last-minute election of a dark horse whom no one previously had thought to be of senatorial timber. In other words, a procedure that originally had produced Senators like Daniel Webster and Thomas Hart Benton eventually produced a bunch of non-entities.
3. Because people “voted” for a Senate candidate by voting for state legislative candidates, federal and state issues became bundled, with state issues often entirely submerged. Think of the 1858 Illinois legislative races. Does anyone remember any of the issues in that campaign other than the issues that divided U.S. Senate candidates Lincoln and Douglas?
Put another way, legislative election of Senators began to hurt federalism because state elections lost their distinctive character among national issues.
These were not minor problems. When a politician votes to reduce his own power, you know things are bad. But that’s what state lawmakers did. First, they begged Congress to propose a direct-election amendment, then they established de facto direct election systems in some states, and finally they began an application campaign for an Article V amendments convention. By 1913, they were one state short of the necessary 2/3. The only reason we didn’t have a convention is that Congress caved in and proposed the 17th amendment itself.
My guess is that most repeal advocates are unaware of either the problems with legislative election of Senators or with possible solutions. For example, they could point out that Congress could reduce the danger of deadlock by using its constitutional authority (under Article I, Section 4, Clause 1) to adopt efficient rules by which legislatures could choose Senators. On the other hand, though, it’s fair to point out that Congress could have done this under the old system, but didn’t. In fact, one of the few election laws it passed may have made the situation worse.
Repealing direct election is probably a will o’ the wisp. If advocates can’t effectively answer the questions listed above, then they really should be seeking more feasible reforms.
Although I favor adopting one or more amendments to restore the federal government to constitutional limits, I generally do not take positions on specific proposed amendments. My mission is to research our Constitution and educate others about it, including but not limited to the Article V amendment process.
Mr. Levin’s conclusion about the Article V convention process—that is a limited-purpose, state-driven procedure created by the Founders to prevent federal overreach—is, of course, correct. This is clear to anyone who has fully and impartially examined the historical record and the applicable law. I was gratified to see that Mr. Levin acknowledged my research, and that it helped him reach this conclusion.
More importantly, in announcing that conclusion, Mr. Levin has shown vision and courage. I’m sure he was aware that the angels of misinformation can be a difficult bunch. No doubt they are already harassing him. But he did what was right, and it is gratifying to see that he has encouraged other opinion-molders to do the right thing as well.
The Constitutional Convention Did Not Exceed Its Power and the Constitution is not “Unconstitutional”
Judging by recent claims in the media such as this one, there is still a lot of life in the old tale (dating back to the Anti-Federalists) that the 1787 federal convention “ran away” and that the Constitution was unconstitutionally adopted.
To get at the the truth you have to know about the laws and practices then applying to interstate conventions, and the procedure leading up to the 1787 gathering. Although the Anti-Federalists were right about certain things (some of their political predictions were brilliant), by and large the law was not their strong point. So their claims that the convention delegates exceeded their powers were partly the result of legal ignorance. They also may have hoped to convince themselves and the public that they had successfully done something they actually had failed to do. Explanation below.
For various reasons, many later writers have accepted the Anti-Federalist charge. This is because most people who write about the Founding may be either historians or lawyers, but they are seldom both. And even the few who are both historians and lawyers have rarely studied 18th century law and convention practice—yours truly modestly excepted.
The usual (false) narrative goes like this:
“The Confederation Congress called the convention and limited its power to proposing amendments to the Articles of Confederation. The Convention disregarded the limit, and drafted an entirely new document. The Articles provided that they could be changed only by unanimous consent among the states. But the convention illegally disregarded that, and allowed ratification of the Constitution by only nine states.”
Here are the facts:
* Before and during the Founding Era, there were many interstate conventions, and most of them were called by individual colonies and states. The call or invitation set the outer limits of the topic, and the powers of individual colony or state “committees” (delegations) were fixed by documents called “commissions” issued by each state to its “commissioners” (delegates).
* Congress did not call the Constitutional Convention. It was called by Virginia and, secondarily, by New Jersey in November 1786 in response to the recommendation of the Annapolis Convention the previous September. These calls provided for the convention to propose changes in the “federal constitution” without limiting the gathering to amendments to the Articles. The unanimous authority of 18th century dictionaries tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.
* Congress didn’t get around to considering the matter until late February of the following year. By then, seven of the 13 states had agreed to participate and broadly empowered their commissioners (delegates) to consider changes in the political system.
* Congress had no legal power to affect that effort, but a congressional committee did recommend that Congress endorse it. Congressional delegates from New York, where Anti-Federalist sentiment was strong, were instructed to try to stop it. They moved that Congress “recommend” that the convention be limited only to amending the Articles. Congress defeated the New York motion.
* The congressional delegates from Massachusetts then proposed a compromise. They watered down the New York motion to state only that “in the opinion of Congress it is expedient” that the convention be so limited. In this form it passed.
* But this “opinion” had no—repeat, no—legal force.
* The New York and Massachusetts efforts made sense only on the assumption that the seven states that already had empowered their delegates were giving them authority well beyond that of proposing amendments to the Articles.
* New York and Massachusetts later agreed to participate in the Constitutional Convention, but limited their commissioners to proposing amendments to the Articles.
* All the other states ignored them. The original seven continued to give their commissioners authority to recommend an entirely new system. Three more states decided to participate, and they also followed the original, broad formula.
* Thus, in Philadelphia, only the seven commissioners from New York and Massachusetts lacked power to propose a new form of government. Of the seven, three signed the Constitution, one in an individual capacity (Hamilton). Of the 55 delegates, therefore, only Nathaniel Gorham and Rufus King of Massachusetts arguably exceeded their authority by signing.
* There was nothing otherwise illegal about proposing a new system. Interstate conventions were considered meetings under international law. The Articles of Confederation were essentially a treaty among sovereign states. (The word “confederation” was based on the Latin word for treaty: foedus.) In other words, the role of the Confederation Congress was much like the role of the UN among sovereign nations today.
* Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent (such as the UN or the Confederation Congress) objects.
* The Convention was not held under the Articles; it was by agreement of participating states outside the Articles. The Articles did not control the proceedings, either legally or practically.
* The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history, where single “peoples” often have been ruled by multiple governments. Good Founding-Era examples were the political fragmention of the German people and of the Italian people. Good modern examples are Korea, Ireland, and the Arabian peninsula.
* Under the political theory of the Founding Era, the people were the “principals” and public officials their “agents.” Although the American people had granted governmental power to disconnected sets of agents, they also had the right to change that arrangement. (See the Declaration of Independence.) Legally, a principal could (and still may) revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
* Put another way, the American people could revisit the treaty obligations their agents had contracted on their behalf. The 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
* The ratification procedure was crafted so that the Constitution would never come until effect unless it represented the will of a majority of the American electorate. The Framers did this in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution, and (2) the Constitution would not go into effect unless conventions in nine states agreed.
* Why nine states? Because as the Constitution’s initial allocation of the new House of Representatives showed (Art.I, Sec. 2, Cl. 3), the Framers believed that any and all combinations of nine states would comprise a majority of American citizens. Even if the four most populous states all refused to ratify, the remaining nine still would represent a majority of the electorate. Moreover, as a matter of political reality, the Constitution would not go into effect unless some large states—particularly Pennsylvania and Virginia—were among the nine.
* Ultimately, of course, all 13 states ratified, satisfying even those who claimed the Articles governed.
So relax: The Founders were honorable men, and the Constitution is constitutional.