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?

b. Federalist Views

In Federalist No. 40, Madison posed the question “whether the convention [was] authorized to frame and propose this mixed Constitution[?]”1) THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961). His response was to the point: “The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents.”2) Id. Even though Madison discusses the language from the Annapolis Report and the Congressional Resolution of February 21st, he establishes that his examination of those two documents is predicated on the idea that all the states essentially followed one formula or the other. Publius was clear: the states gave the delegates their instructions.3) Id. At 254.

During the debate in the Massachusetts legislature over calling a state ratification convention, one Federalist member proclaimed, “Twelve States have appointed Deputies for the sole purpose of forming a system of federal government, adequate to the purposes of the union.”4) House Proceedings and Debates of 24 October, MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at 135, 136. The states gave the instructions, and the language he cites is the most common element of all state appointments.5) See A Friend to Good Government, POUGHKEEPSIE COUNTRY J., Apr. 8, 1788, reprinted in 20 DHRC, supra note 4, at 902, 905 (”[T]he Convention that framed the Constitution, in question; they were appointed by the State Legislatures, and empowered by the letter of the authority under which they acted . . . .“); Oliver Ellsworth and William Samuel Johnson, Speeches in the Connecticut Convention (Jan. 4, 1788), reprinted in 15 DHRC, supra note 4, at 243, 249, (“As to the old system, we can go no further with it; experience has shewn [sic] it to be utterly inefficient. The States were sensible of this, to remedy the evil they appointed the convention.”) (statement of William Samuel Johnson). John Marshall gave the ultimate answer to Henry's claim that the delegates had exceeded their powers:

The Convention did not in fact assume any power. They have proposed to our consideration a scheme of Government which they thought advisable. We are not bound to adopt it, if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country? Have not several Gentlemen already demonstrated, that the Convention did not exceed their powers?6) Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra note 4, at 1092, 1118.

Federalist authors defended the charge that the delegates exceeded their authority in several publications. Curtius II mocked Cato for making the allegation.7) Curtius II, N.Y. DAILY ADVERTISER, Oct. 18, 1787, reprinted in 19 DHRC, supra note 4, at 97, 97-102. “One of the People,” writing in the Pennsylvania Gazette, recited that the delegates had been authorized by their states to make alterations—an inherent right of the people.8) See One of the People, PENN. GAZETTE, Oct. 17, 1787, reprinted in 2 DHRC, supra note 4, at 186, 189-190 (“The deputies from this state were empowered, they had power to make such alterations and further provisions as may be necessary to render the federal government fully adequate to the exigencies of the Union. Had objections such as these prevailed, America never would have had a Congress, nor had America been independent. Alterations in government are always made by the people.”). “A Friend to Good Government,” in the Poughkeepsie Country Journal, defended the legitimacy of the convention with an accurate review of the events and documents.9) See A Friend to Good Government, POUGHKEEPSIE COUNTRY J., Apr. 8, 1788, reprinted in 20 DHRC, supra note 4, at 902, 902 (”[T]hey were appointed by the State Legislatures, and empowered by the letter of the authority under which they acted to report such alterations and amendments in the Confederation as would render the federal government adequate to the exigencies of government and the preservation of the Union—you will here perceive that the latitude given in the instruction, were amply large enough to justify the measures the Convention have taken. The objects in view were the welfare and preservation of the Union, and their business so far to new model our government as to encompass those objects.“).

The most stinging defenses of the legitimacy of the actions of the Convention were aimed at New York's Robert Yates and John Lansing, who had left the convention early and had widely attacked the Constitution as the result of unauthorized action. “A Dutchess County Farmer” argued that the Convention was:

[I]mpowered to make such alterations and provisions therein, as will render the federal Government (not Confederation) adequate to the exigencies of the Government and the preservation of the Union[.] In the discharge of this important trust, I am bold to say, that the Convention have not gone beyond the spirit and letter of the authority under which they acted . . . .10) A Dutchess County Farmer, POUGHKEEPSIE COUNTRY J., Feb. 26, 1788, reprinted in 20 DHRC, supra note 4, at 815, 816.

But it was the critique of Lansing and Yates that was the most contentious charge. They had justified their early exit on the basis that it was impractical to establish a general government. The Farmer asked:

[I]f you were convinced of the impracticability of establishing a general Government, what lead you to a Convention appointed for the sole and express purpose of establishing one; could you suppose it was the intention of the Legislature to send you to Philadelphia, to stalk down through Water street, cross over by the way of Chesnut, into Second street, and so return to Albany? [T]he public are well acquainted with what you have not done. Now good Sirs, in the name of humanity, tell us what you have done, or do you suppose that the limited and well defined powers under which you acted, made your business only negative?11) Id. At 817.

Lansing and Yates were also strongly criticized by “A Citizen” writing in the Lansingburg Northern Centinel:

The powers given to the Convention were for the purpose of proposing amendments to an old Constitution; and I conceive, with powers so defined, if this body saw the necessity of amending the whole, as well as any of its parts, which they undoubtedly had an equal right to do, thence it follows, that an amendment of every article from the first to the last, inclusive, is such a one as is comprehended within the powers of the Convention, and differs only from an entire new Constitution in this, that the one is an old one made new, the other new originally.12) A Citizen, LANSINGBURGH NORTHERN CENTINEL, Jan. 29, 1788, reprinted in 20 DHRC, supra note 4, at 674, 676-77.

“The Citizen” turned out to be a lawyer from Albany named George Metcalf.13) See id. at 674. Lansing and Yates were so incensed at his effective attacks on their actions and character that they commenced a legal action against him.14) George Metcalf Defends Himself, ALBANY J., Mar. 1, 1788, reprinted in 20 DHRC, supra note 4, at 832, 832-33. They also sought, apparently unsuccessfully, to determine the identity of the Duchess County Farmer.15) See Letter from Abraham G. Lansing to Abraham Yates, Jr. (Mar. 2, 1788), reprinted in 20 DHRC, supra note 4, at 835.

The charge that the Convention exceeded its authority was leveled in state legislatures, ratification conventions, and in the public debates in the papers. In every one of those venues, the Federalists responded to the charges with timely and effective arguments. The overwhelming evidence is that the Federalists believed that they had repeatedly and successfully defeated these claims. As John Marshall said: “Have not several Gentlemen already demonstrated, that the Convention did not exceed their powers?”6)

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