DEFYING CONVENTIONAL WISDOM: THE CONSTITUTION WAS NOT THE PRODUCT OF A RUNAWAY CONVENTION

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D. Debates in the State Ratification Convention Process

2. Who gave the delegates their instructions?

a. Anti-Federalist Views

Perhaps the most famous Anti-Federalist was Virginia's Patrick Henry. He led a nearly successful effort to defeat the ratification of the Constitution in that state's convention.1) Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra note 4, at 897-900. But, early in the process, as a superb trial lawyer, Henry sought to lay the documentary record before the Virginia convention to prove that the delegates had violated their instructions.

Mr. Henry moved, That the Act of Assembly appointing Deputies to meet at Annapolis, to consult with those from some other States, on the situation of the commerce of the United States—The Act of Assembly for appointing Deputies to meet at Philadelphia, to revise the Articles of Confederation—and other public papers relative thereto—should be read.2) Virginia Convention Debates (June 4, 1788), reprinted in 9 DHRC, supra note 4, at 915, 917.
Henry's maneuver demonstrates that he believed that the controlling instructions were to be found, not in a congressional measure, but in the two Virginia acts which appointed delegates to Annapolis and Philadelphia.

One of the most widely circulated Anti-Federalist attacks against the legitimacy of the Convention was a letter from Robert Yates and John Lansing, Jr. explaining their early exit from the Convention.3) The Report of New York's Delegates to the Constitutional Convention, N.Y. DAILY ADVERTISER, Jan. 14, 1788, reprinted in 15 DHRC, supra note 4, at 366. The core of their argument was that the Convention had violated its restricted purpose. After reciting the familiar language that the convention had been confined to the ”sole and express purpose of revising the articles of Confederation,“4) Id. at 369. their letter identifies what they believed to be the controlling source of those instructions: “From these expressions, we were led to believe that a system of consolidated Government, could not, in the remotest degree, have been in contemplation of the Legislature of this State.”5) Id. Their admission should lay to rest any suggestion that the Anti-Federalists believed that Congress gave the Convention its authority and instructions.

The New York Journal published a series of Anti-Federalist articles penned by Hugh Hughes under the pen name of “A Countryman.”6) See 19 DHRC, supra note 4, at 271, 291, 347, 424. He decries what seemed to be “a Predetermination of a Majority of the Members to reject their Instructions, and all authority under which they acted.”7) Hugh Hughes, A Countryman I, N.Y.J., Nov. 21, 1787, reprinted in 19 DHRC, supra note 4, at 271, 273. But earlier in the same paragraph he recites “the Resolutions of several of the States, for calling a Convention to amend the Confederation”5) as the source of the delegates' instructions. His argument strongly suggests that all of the delegates violated their instructions. However, he recites only a paraphrase of the New York instructions in support of his contention. Again, he assumes that the state legislatures, not Congress, were the source for the delegates' instructions.

An Anti-Federalist writer from Georgia admitted the correct legal standard even in the midst of an assertion that played fast and loose with the facts:

[I]t is to be observed, delegates from all the states, except Rhode Island, were appointed by the legislatures, with this power only, “to meet in Convention, to join in devising and discussing all such ALTERATIONS and farther [sic] provisions as may be necessary to render the articles of the confederation adequate to the exigencies of the Union.”8) A Georgian, GAZETTE ST. GA., Nov. 15, 1787, reprinted in 3 DHRC, supra note 4, at 236, 237.
Not a single state appointed delegates with the exact language set out in this writer's alleged quotation. His own state's resolution does not even mention the Articles of Confederation.9) The operative language from the Georgia legislature instructed the delegates: “to join with [other delegates] in devising and discussing all such alterations and farther [sic] provisions, as may be necessary to render the federal constitution adequate to the exigencies of the union.” Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC, supra note 4, at 204, 204. He begins by accurately citing the states as the source of the instructions and then, as was commonly the case, went from fact to fantasy when he purported to quote the delegates' instructions.

Letters from a Federal Farmer, which are widely recognized as the pinnacle of Anti-Federalist writing, contains the same admission—even in the midst of attacking the legitimacy of the convention. The Farmer accuses the Annapolis Convention of launching a plan aimed at “destroying the old constitution, and making a new one.”10) Federal Farmer, Letters to the Republican, Nov. 8, 1787, reprinted in 19 DHRC, supra note 4, at 203, 211. The states were duped and fell in line. “The states still unsuspecting, and not aware that, they were passing the Rubicon, appointed members to the new convention, for the sole and express purpose of revising and amending the confederation.”5) The Farmer's political purpose was served by selectively quoting the language used only by two states. But his argument about the states being unaware they were passing the Rubicon applied to all twelve states— including the six that named their delegates and gave them their instructions before this phrase was ever drafted in the Confederation Congress. Again, the Farmer blames the states for being duped when they gave instructions to their delegates.

The Anti-Federalist Cato also contended that the process employed was improper. However, in a classic straw man argument, he decried a process that never happened. According to Cato, “a short history of the rise and progress of the Convention” starts with Congress determining that there were problems in the Articles of Confederation that could be fixed in a convention of states.11) Cato II, N.Y.J., Oct. 11, 1787, reprinted in 19 DHRC, supra note 4, at 79, 81. He contends that Congress was the initiator and that the states were in the role of responders.12) Id. at 79-82. All citizens were entitled to their own opinions, but several Anti-Federalists seemed to believe they were also entitled to their own facts.

As we can see, while Anti-Federalists had serious doubts about the propriety of the actions of the Convention's delegates, there was an overriding acknowledgement within their ranks of one key legal issue: the sources of the authority for the delegates were the enactments of each of the several state legislatures.

(See also: Proceedings of the Annapolis Convention and Credentials of the Delegates of 1787)

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