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THE CONSTITUTION WAS NOT THE PRODUCT OF A RUNAWAY CONVENTION

I. DID THE CONVENTION DELEGATES EXCEED THEIR AUTHORITY?

D. Debates in the State Ratification Convention Process

1. There was a General Consensus that the States, Not Congress, Called the Convention

While modern scholars generally assert that the Philadelphia Convention was called by Congress on February 21st, 1787, the contemporary view was decidedly different.1) As we shall see, the friends and opponents of the Constitution widely agreed that the origins and authority for the Convention came from the States.

During the Pennsylvania legislative debates over calling the state ratification convention, an important Federalist, Hugh Breckenridge, explained the origins of the Convention:

How did this business first originate? Did Virginia wait the recommendation of Congress? Did Pennsylvania, who followed her in the appointment of delegates, wait the recommendation of Congress? The Assembly of New York, when they found they had not the honor of being foremost in the measure, revived the idea of its being necessary to have it recommended by Congress, as an excuse for their tardiness (being the seat of the federal government), and Congress, to humor them, complied with their suggestions . . . . But we never heard, that it was supposed necessary to wait [for Congress's] recommendations.2)

George Washington described the origins of the Convention in similar terms in a letter to Marquis de Lafayette on March 25th, 1787:

[M]ost of the Legislatures have appointed, & the rest it is said will appoint, delegates to meet at Philadelphia the second monday [sic] in may [sic] next in general Convention of the States to revise, and correct the defects of the federal System. Congress have also recognized, & recommended the measure.3)

Madison echoed this theme in a letter to Washington sent on September 30th, 1787. “[E]very circumstance indicated that the introduction of Congress as a party to the reform was intended by the states merely as a matter of form and respect,” he wrote.4) Federalists, as may be expected, consistently adhered to the view that the Convention had been called by the states and the action of Congress was a mere endorsement.

Even in the midst of their assertions that the Convention had violated its instructions, leading Anti-Federalists repeatedly admitted that the Convention was called by the states and not by Congress. In the Pennsylvania legislature, an Anti-Federalist leader read the credentials granted to that state's delegates to the Constitutional Convention, followed by the contention that “no other power was given to the delegates from this state (and I believe the power given by the other states was of the same nature and extent).”5) An Anti-Federalist writer—who took the unpopular tack of attacking George Washington—admitted this point as well. “[T]he motion made by Virginia for a General Convention, was so readily agreed to by all the States; and that as the people were so very zealous for a good Federal Government . . . .”6) A series of Anti-Federalist articles appeared in the Massachusetts Centinel from December 29th, 1787 through February 6th, 1788.7) In the first installment, this writer admitted that the Constitutional Convention originated in the Virginia legislature:

The Federal Convention was first proposed by the legislature of Virginia, to whom America is much indebted for having taken the lead on the most important occasions.— She first sounded the alarm respecting the intended usurpation and tyranny of Great-Britain, and has now proclaimed the necessity of more power and energy in our federal government . . . .

In consequence of the measures of Virginia respecting the calling a federal Convention, the legislature of this State on the 21st of February last, Resolved, “That five Commissioners be appointed by the General Court, who, or any three of whom, are hereby impowered to meet such commissioners as are or may be appointed by the legislatures of the other States . . . 8)

Even in a state that formally adopted Congressional language, a major Anti-Federalist advocate admitted that its legislature was prompted to act “in consequence” of the call from Virginia.

1)
See, e.g., Brian C. Murchison, The Concept of Independence in Public Law, 41 EMORY L.J. 961, 976 (1992) (“Moreover, the Convention did not present the proposed Constitution to Congress for approval, or to the legislatures of the states, but called for ratification by 'specially elected conventions' in the states.'”).
2)
Assembly Debates, A.M. (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4, at XX, 79-80.
3)
Letter from George Washington to Marquis de Lafayette (Mar. 25, 1787), reprinted in THE PAPERS OF GEORGE WASHINGTON DIGITAL EDITION 106 (Theodore J. Crackel ed., 2008).
4)
Letter from James Madison to George Washington, New York (Sept. 30, 1787), reprinted in 1 DHRC, supra note 4, at 343, 343-44.
5)
Convention Debates (Nov. 28, 1787), reprinted in 2 DHRC, supra note 4, at 382, 394.
6)
An American, AM. HERALD, Jan. 28, 1788, reprinted in 5 DHRC, supra note 4, at 792, 792.
7)
See 5 DHRC, supra note 4, at 549, 589, 661, 698, 833, 843, 869.
8)
The Republican Federalist I, MASS. CENTINEL, Dec. 29, 1787, reprinted in 5 DHRC, supra note 4, at 549, 551-52.
clips/states_called_convention.txt · Last modified: 2018/03/26 14:17 by Oliver Wolcott