Title: Briefing Book
Original CoS Document (slug): article-v-legislative-compendium
Login Required to view? No
Attached File: Digital_COSA_BriefingBook_COSA042023.pdf
The Article V Briefing Book for Lawyers and Legislative Drafter
Created: 2017-07-06 07:08:53
Updated: 2023-12-31 19:00:00
Published: 2017-07-17 17:00:00
Converted: 2025-04-14T19:21:58.157734734
CONVENTION OF STATES ACTION
BRIEFING BOOK
2
Convention of States Action
Briefing Book
Version: V1
COS Legislative Dept.
Some of the images and graphics have been removed from its original form for printing.
3
**Executive Summary\\
**For providing background and general information about COSA; includes process
description, endorsers, legislative progress, list of possible amendments, etc.
**Questions/Objections & Responses\\
**For providing brief responses to the most common objections.
**Convention Disinformation\\
**For responding to the “runaway” myth and claim that we don’t know how a
convention would work; includes excerpts from the call and commissions for the 1787
Constitutional Conventions, a list of past interstate conventions, and a selection of key
court cases on Article V.
**Problems in the Testimony of Robert Brown\\ **For responding to erroneous testimony of JBS spokesperson Robert Brown.
**The Liberal Establishment’s Disinformation Campaign \\ Against Article V**
For demonstrating that the anti-Article V talking points originated from the Political
Left.
**Michael Farris article in Harvard Journal of Law & **
**Public Policy,** “Defying Conventional Wisdom.”
Detailed explanation of the 1787 Constitutional Convention, demonstrating that it was
not a “runaway convention.”
**250 Leftist organizations opposed to Convention of \\ States Action efforts**.\\ Demonstrates that the radical Left is opposed to our efforts.
**The Jefferson Statement\\ **Demonstrates that well-respected, conservative scholars and legal experts
support our efforts.
PAGE 5
PAGE 9
PAGE 13
PAGE 17
PAGE 41
PAGE 63
PAGE 151
PAGE 153
4
America is spiraling out of control. People who respect neither our institutions or our citizens are in control of the levers
of power in Washington, D.C. They intend widespread destruction to the foundations of our republic. We have been told
that “elections” can fi x the problems ailing the nation. Most with our beliefs were disabused of this antiquated notion in
2020. The bottom line is that Washington, D.C., today enjoys almost unchecked power.
This is a systemic problem that requires a systemic solution. This is about more than elections. Elections cannot and
will not solve the problems of a broken system. The only solution big enough to fi x our nation’s problems is an Article V
convention for proposing constitutional amendments to rein in federal tyranny. This is the people’s fi nal “check” on D.C.,
exercised through their state legislators–the ingenious plan of the Founders to make state legislators’ ambitions (for state
power) counteract federal offi cials’ ambitions (for federal power)–for the good of the people.
While there is nothing “wrong” with the Constitution as drafted and ratifi ed, the problems we now face are undeniably
the result of improper constitutional interpretations by the federal courts (i.e. the General Welfare Clause, the
Necessary and Proper Clause, and the Commerce Clause). Conservatives like to say that federal offi cials “ignore” the
Constitution, but what they actually do is creatively “lawyer” around its limitations via Supreme Court rulings expanding
federal power.
We can and must restore the federal government to its proper, limited place by pushing back on the expansion and
eff ectively overturning bad Supreme Court precedents that have eviscerated the Founders’ intended limitations on our
federal system.
The Convention of States Resolution seeks to do this by using the tool given to the states in Article V of the
Constitution. It calls for an Article V convention limited to proposing amendments that
impose fi scal restraints on the
federal government, limit the power and jurisdiction of the federal government, and limit the terms of offi ce for its
offi cials and for members of Congress.
EXECUTIVE SUMMARY
Convention of States
OFFICIAL ENDORSERS
Gov. Ron DeSantis, FL Governor
Ben Shapiro, The Ben Shapiro Show
Mark Meckler, CEO COS Action
Mark Levin, The Mark Levin Show
Sean Hannity, Hannity & Colmes
This page is intentionally left blank
5
America is spiraling out of control. People who respect neither our institutions or our citizens are in control of the levers
of power in Washington, D.C. They intend widespread destruction to the foundations of our republic. We have been told
that “elections” can fi x the problems ailing the nation. Most with our beliefs were disabused of this antiquated notion in
2020. The bottom line is that Washington, D.C., today enjoys almost unchecked power.
This is a systemic problem that requires a systemic solution. This is about more than elections. Elections cannot and
will not solve the problems of a broken system. The only solution big enough to fi x our nation’s problems is an Article V
convention for proposing constitutional amendments to rein in federal tyranny. This is the people’s fi nal “check” on D.C.,
exercised through their state legislators–the ingenious plan of the Founders to make state legislators’ ambitions (for state
power) counteract federal offi cials’ ambitions (for federal power)–for the good of the people.
While there is nothing “wrong” with the Constitution as drafted and ratifi ed, the problems we now face are undeniably
the result of improper constitutional interpretations by the federal courts (i.e. the General Welfare Clause, the
Necessary and Proper Clause, and the Commerce Clause). Conservatives like to say that federal offi cials “ignore” the
Constitution, but what they actually do is creatively “lawyer” around its limitations via Supreme Court rulings expanding
federal power.
We can and must restore the federal government to its proper, limited place by pushing back on the expansion and
eff ectively overturning bad Supreme Court precedents that have eviscerated the Founders’ intended limitations on our
federal system.
The Convention of States Resolution seeks to do this by using the tool given to the states in Article V of the
Constitution. It calls for an Article V convention limited to proposing amendments that
impose fi scal restraints on the
federal government, limit the power and jurisdiction of the federal government, and limit the terms of offi ce for its
offi cials and for members of Congress.
EXECUTIVE SUMMARY
Convention of States
OFFICIAL ENDORSERS
Gov. Ron DeSantis, FL Governor
Ben Shapiro, The Ben Shapiro Show
Mark Meckler, CEO COS Action
Mark Levin, The Mark Levin Show
Sean Hannity, Hannity & Colmes
6
COS Resolution Language
The COS Resolution’s operative language defi nes the limits of the types of amendments that can be proposed.
The operative language is as follows:
Section 1. The legislature of the State of
hereby applies to Congress, under the provisions of
Article V of the Constitution of the United States, for the calling of a convention of the states limited to
proposing amendments to the Constitution of the United States that impose fi scal restraints on the federal
government, limit the power and jurisdiction of the federal government, and limit the terms of offi ce for its
offi cials and for members of Congress.
How The Process Works
Article V of the Constitution provides two ways in which amendments may be proposed: Congress may propose
them, or the states can call a “convention for proposing amendments” upon application of 2/3 of the state legislatures
(34 state legislatures). Regardless of which way amendments are proposed, they must always be ratifi ed by 3/4 of the
states (38 states).
The amendments that can be proposed must be germane to the resolution, limited by the language of the resolution
itself, passed by the state legislatures as the subject matter of the convention. Only the proposed amendments that
pass by a simple majority (26 states) shall be put forth for ratifi cation. They are mere suggestions until ratifi ed.
Types of Amendments That Could Be Proposed
• Limiting Supreme Court Justices to nine members of the court
• Preventing the federal government from adding states without the affi rmative consent of three quarters of the
existing states
• A limitation on using Executive Orders and federal regulations to enact laws
• A balanced budget amendment, including limitations on taxes and spending
• Imposition of Generally Accepted Accounting Principles (GAAP)
• Single Subject Amendment – One subject per bill in Congress
• A redefi nition of the General Welfare Clause back to original intent (the original view was the federal government
could not spend money on any topic within the jurisdiction of the states)
• A redefi nition of the Commerce Clause back to original intent (the original view was that Congress was granted a
narrow and exclusive power to regulate shipments across state lines–not all the economic activity of the nation)
• A prohibition of using international treaties and law to govern the domestic law of the United States
• Placing an upper limit on federal taxation
• Requiring the sunset of all existing federal taxes and a super-majority vote to replace them with new, fairer taxes
• Religious freedom amendment, prohibiting the government from further interference with our religious freedoms
• Regulatory curtailment by forcing Congress to vote on regulations instead of deferring law making to regulators.
Former
U.S. Senator Rick Santorum now serves as Senior Advisor to Convention of States. Major endorsers include
(but are not limited to):
Mark Levin, Sean Hannity, Ben Shapiro, Gov. Ron DeSantis, Rep. Mark Meadows, Charlie
Kirk, Pete Hegseth, Lt. Col. Allen West, Dave Rubin, Rep. Chip Roy, David Barton, James O’Keefe, Steve Deace,
David Horowitz, Eric Metaxas, Dr. James Dobson, Rep. Louis Gohmert, Sen. Rand Paul, Sen. Marco Rubio, Sen. Jim
DeMint, Gov. Greg Abbott, The Honorable Jeb Bush, The Honorable Ben Carson,The Honorable Mike Huckabee,
Gov. Sarah Palin, Gov. Bobby Jindal, Sen. Ron Johnson, Kenneth Cuccinelli, Rep. Jeff Duncan, Rep. Ralph Norman,
Sen. Jim Talent, and many more. The late U.S. Senator
Tom Coburn was one of the leading proponents of COS
and also served as a Senior Advisor.
Conservative legal heavyweights serving on the
Convention of States Legal Board
of Reference include:
• Mark Levin
• Prof. Robert P. George
• Prof. Randy Barnett
• Ambassador C. Boyden Gray
• Mat Staver
• Andrew McCarthy
• Dr. John Eastman
• Charles Cooper
• Professor Nelson Lund
• Michael Farris
• Mark Meckler
81.3%
50.2%
63.3%
Public Opinion Polling
Polling conducted across the nation indicates that, on average, 65.7% of voters across party lines support the
Convention of States Resolution. That includes 81.3% of Republicans, 50.2% of Democrats, and 63.3% of
“others.” Polling was conducted by Robert Cahaly of The Trafalgar Group, America’s most trusted and accurate
pollster in the 2016, 2018 and 2020 elections.
View our full list of endorsers at conventionofstates.com
Charlie Kirk
Mark Levin
Sean Hannity
Gov. Ron
DeSantis
Rep. Mark
Meadows
Ben Shapiro
Rick Santorum
Lt. Col. Allen West
Hon. Ben Carson
Hon. Mike Huckabee
COS Founders
Convention of States was founded by
Mark Meckler, Co-Founder of Tea
Party Patriots and President of Citizens for Self-Governance, and
Michael
Farris, Founder of Home School Legal Defense Association, Patrick Henry
College, and the former CEO of Alliance Defending Freedom.
Mark Meckler
Michael Farris
COS Endorsers
7
COS Resolution Language
The COS Resolution’s operative language defi nes the limits of the types of amendments that can be proposed.
The operative language is as follows:
Section 1. The legislature of the State of
hereby applies to Congress, under the provisions of
Article V of the Constitution of the United States, for the calling of a convention of the states limited to
proposing amendments to the Constitution of the United States that impose fi scal restraints on the federal
government, limit the power and jurisdiction of the federal government, and limit the terms of offi ce for its
offi cials and for members of Congress.
How The Process Works
Article V of the Constitution provides two ways in which amendments may be proposed: Congress may propose
them, or the states can call a “convention for proposing amendments” upon application of 2/3 of the state legislatures
(34 state legislatures). Regardless of which way amendments are proposed, they must always be ratifi ed by 3/4 of the
states (38 states).
The amendments that can be proposed must be germane to the resolution, limited by the language of the resolution
itself, passed by the state legislatures as the subject matter of the convention. Only the proposed amendments that
pass by a simple majority (26 states) shall be put forth for ratifi cation. They are mere suggestions until ratifi ed.
Types of Amendments That Could Be Proposed
• Limiting Supreme Court Justices to nine members of the court
• Preventing the federal government from adding states without the affi rmative consent of three quarters of the
existing states
• A limitation on using Executive Orders and federal regulations to enact laws
• A balanced budget amendment, including limitations on taxes and spending
• Imposition of Generally Accepted Accounting Principles (GAAP)
• Single Subject Amendment – One subject per bill in Congress
• A redefi nition of the General Welfare Clause back to original intent (the original view was the federal government
could not spend money on any topic within the jurisdiction of the states)
• A redefi nition of the Commerce Clause back to original intent (the original view was that Congress was granted a
narrow and exclusive power to regulate shipments across state lines–not all the economic activity of the nation)
• A prohibition of using international treaties and law to govern the domestic law of the United States
• Placing an upper limit on federal taxation
• Requiring the sunset of all existing federal taxes and a super-majority vote to replace them with new, fairer taxes
• Religious freedom amendment, prohibiting the government from further interference with our religious freedoms
• Regulatory curtailment by forcing Congress to vote on regulations instead of deferring law making to regulators.
Former
U.S. Senator Rick Santorum now serves as Senior Advisor to Convention of States. Major endorsers include
(but are not limited to):
Mark Levin, Sean Hannity, Ben Shapiro, Gov. Ron DeSantis, Rep. Mark Meadows, Charlie
Kirk, Pete Hegseth, Lt. Col. Allen West, Dave Rubin, Rep. Chip Roy, David Barton, James O’Keefe, Steve Deace,
David Horowitz, Eric Metaxas, Dr. James Dobson, Rep. Louis Gohmert, Sen. Rand Paul, Sen. Marco Rubio, Sen. Jim
DeMint, Gov. Greg Abbott, The Honorable Jeb Bush, The Honorable Ben Carson,The Honorable Mike Huckabee,
Gov. Sarah Palin, Gov. Bobby Jindal, Sen. Ron Johnson, Kenneth Cuccinelli, Rep. Jeff Duncan, Rep. Ralph Norman,
Sen. Jim Talent, and many more. The late U.S. Senator
Tom Coburn was one of the leading proponents of COS
and also served as a Senior Advisor.
Conservative legal heavyweights serving on the
Convention of States Legal Board
of Reference include:
• Mark Levin
• Prof. Robert P. George
• Prof. Randy Barnett
• Ambassador C. Boyden Gray
• Mat Staver
• Andrew McCarthy
• Dr. John Eastman
• Charles Cooper
• Professor Nelson Lund
• Michael Farris
• Mark Meckler
81.3%
50.2%
63.3%
Public Opinion Polling
Polling conducted across the nation indicates that, on average, 65.7% of voters across party lines support the
Convention of States Resolution. That includes 81.3% of Republicans, 50.2% of Democrats, and 63.3% of
“others.” Polling was conducted by Robert Cahaly of The Trafalgar Group, America’s most trusted and accurate
pollster in the 2016, 2018 and 2020 elections.
View our full list of endorsers at conventionofstates.com
Charlie Kirk
Mark Levin
Sean Hannity
Gov. Ron
DeSantis
Rep. Mark
Meadows
Ben Shapiro
Rick Santorum
Lt. Col. Allen West
Hon. Ben Carson
Hon. Mike Huckabee
COS Founders
Convention of States was founded by
Mark Meckler, Co-Founder of Tea
Party Patriots and President of Citizens for Self-Governance, and
Michael
Farris, Founder of Home School Legal Defense Association, Patrick Henry
College, and the former CEO of Alliance Defending Freedom.
Mark Meckler
Michael Farris
COS Endorsers
8
PASSED COS
RESOLUTION (19 STATES)
PASSED LEGISLATIVE
CHAMBER (26 STATES)
PASSED COMMITTEE
HEARING (31 STATES)
Updated 2/07/2023
Legislative makeup and Convention of States Legislative Victories
Passed COS
Resolution (19 States)
Passed Legislative
Chamber (26 States)
Passed Committee
Hearing (31 States)
Filed COS Resolution
(49 States)
AK, AL, AR, AZ, FL, GA,
IN, LA, MO, MS, ND,
NE, OK, TN, TX, UT,
WI, WV, SC
AL, AK, AR, AZ, FL, GA,
IA, LA, MS, NE, NH, NC,
ND, NM, TN, VA, SD, IN,
UT, OK, MO, TX, SC, WI,
WV, WY
AL, AK, AZ, AR, FL, GA, IN,
IA, KS, LA, MA, MI, MS, MO
MT, NE, NH, NM, NC, ND,
OK, PA, SC, SD, TN, TX,
UT, VA, WV, WI, WY
AK, AL, AR, AZ, CA, CO ,
DE, FL, GA, HI, ID, IL, IN,
IA, KS, KY, LA, MA, MD,
ME, MI, MN, MS, MO,
MT, NE, NV, NH, NJ,
NM, NY, NC, ND, OH,
OK, OR, PA, RI, SC, SD,
TN, TX, UT, VA, VT, WA,
WI, WV, WY
REPUBLICAN
CONTROLLED LEGISLATURE
DEMOCRAT CONTROLLED
LEGISLATURE
DIVIDED CHAMBER
LEGISLATURE
Convention of States Foundation
5850 San Felipe, Suite 575
Houston, TX 77057
512-487-5525
ConventionofStates.org
Convention of States Action
5850 San Felipe, Suite 580
Houston, TX 77057
512-487-5525
ConventionofStates.com
*Tax deductible 501©3
Please feel free to reach out to me personally…
Mark.Meckler@COSAction.com
Strategy for Passage of the COS Resolution
The strategy for passage of the Resolution is state-specifi c and is carried out by the 5 Million+ citizen activists
recruited from within 100% of the state legislative districts. Citizen activists put the appropriate pressure on their
state representatives to sponsor or vote in support of the Resolution. To date this strategy has accomplished:
•
49 states fi ling the COS Resolution in their state legislatures.
•
31 states have passed the COS Resolution through at least one committee hearing.
•
26 states have passed the COS Resolution through one entire fl oor chamber.
•
19 states have passed the COS Resolution in its entirety.
The nineteen states that have already passed the Convention of States Resolution are: Florida, Georgia, Alaska,
Alabama, Tennessee, Indiana, Oklahoma, Louisiana, Arizona, North Dakota, Texas, Missouri, Arkansas, Utah,
Mississippi, West Virginia, Wisconsin, Nebraska and South Carolina.
Responses to Common Objections
Objection 1: The Constitutional Convention in Philadelphia defied its authority in
proposing a new Constitution, so we can expect an Article V convention to do the
same.
Response: The 1787 convention did not run away. The runaway claim is based on the assumption
that the Confederation Congress called the convention and defined its scope, but that is incorrect.
The Constitutional Convention was called by Virginia in December, 1786, and its language gave
the states power (under their reserved powers) to re-write the Articles of Confederation. The
congressional resolution, issued months after Virginia had issued the call, was, by its own wording,
merely an expression of “opinion” and a recommendation.
Michael Farris, former President and CEO of Alliance Defending Freedom, has published an
article refuting the claim. It is published in Volume 40 of the Harvard Journal of Law and Public
Policy, and you can find it here.
Objection 2: Nothing in Article V limits the convention to a single topic, and in fact, states
cannot limit the scope of an amendment-proposing convention. Once convened, state
delegations will be free to rewrite the Constitution.
Response: The states whose applications trigger the convention retain the right to limit the
scope of the convention however they choose. This is inherent in their power of application. In
fact, this is the only reason there has never yet been an Article V convention; while over 400
state applications for a convention have been filed, there have not yet been 34 applications for a
convention on the same subject matter. Every scholar who has published articles or books on the
subject in the 21st century agrees that a convention can be limited.
As the agents of the state legislatures who appoint and commission them, the commissioners
only enjoy the scope of authority vested in them by their principals (the state legislatures). Any
actions outside the scope of that authority are void as a matter of common law agency
principles, as well as any state laws adopted to specifically address the issue.
The inherent power of state legislatures to control the selection and instruction of their
commissioners, including the requirement that said commissioners restrict their deliberations to
the specified subject matter, is reinforced by the unbroken, universal historical precedent set by
the interstate conventions held at least 42 times in American history. Those who make a
contrary claim cannot cite a single historical or legal precedent to support it.
Finally, keep in mind that under the explicit terms of Article V, the convention’s only power is
to “propose” amendments to “this Constitution” (the one we already have). Only upon
ratification by 38 states does any single amendment become part of the Constitution.
Objection 3: Adding amendments to the Constitution won’t help anything, because
federal officials simply ignore the Constitution anyway.
Response: It is true that if our Constitution were being interpreted today—and obeyed—
according to its original meaning, we would not be facing most of the problems we face today
in our federal government. But the problem is today is more complex than that officials are
“ignoring” or “disobeying” the Constitution. The real issue is that certain provisions of our
Constitution have been wrenched from their original meaning, perverted, and interpreted to
mean something very different. Federal officials today follow the Constitution as interpreted by
the Supreme Court over the years.
As just one example, consider the individual mandate provision of the Affordable Care Act. Of
course, nowhere in the Article I of the Constitution do we read that Congress has the power to
force individuals to purchase health insurance. However, our modern Supreme Court
“interprets” the General Welfare Clause of Article I broadly as a grant of power for Congress to
tax and spend for virtually any purpose that it believes will benefit the people. Now we know
from history that this is not what was intended. But it is the prevailing modern interpretation,
providing a veneer of legitimacy to Congress’ actions—as well as legal grounds for upholding
them.
The federal government doesn’t “ignore” the Constitution—it takes advantage of loopholes
created through practice and precedent. The only way to close these loopholes definitively
and permanently is through an Article V convention that reinstates limitations on federal power
and jurisdiction in clear, modern language.
Objection 4: We have no idea how an Article V convention would operate, because
it is not spelled out in Article V.
Response: The Constitution does not spell out the details of processes that were well-
known to the Framers (“grand jury” and “habeas corpus” are other examples), and
interstate conventions were common practice for them. We know the process from the
historical records of past conventions. There have been at least 42 in American history.
States always choose and instruct their commissioners, voting is always on a one-state,
one-vote basis, and no interstate convention has ever become a “runaway.”
Objection 5: Congress will use its powers under the Necessary and Proper Clause
to control an Article V convention.
Response: This argument is based on ignorance of existing precedent, holding that
Congress may not use any of its Article I powers in the context of Article V. See Idaho
v. Freeman, 529 F.Supp. 1107, 1151 (D. Idaho 1981) (“Thus Congress, outside of the
authority granted by article V, has no power to act with regard to an amendment, i.e., it
does not retain any of its traditional authority vested in it by article I.”) This case was
later vacated as moot for procedural reasons, but the central holding remains
unchanged. Congress may not use its power under the Necessary and Proper Clause
with respect to the operation of an Article V convention.
9
PASSED COS
RESOLUTION (19 STATES)
PASSED LEGISLATIVE
CHAMBER (26 STATES)
PASSED COMMITTEE
HEARING (31 STATES)
Updated 2/07/2023
Legislative makeup and Convention of States Legislative Victories
Passed COS
Resolution (19 States)
Passed Legislative
Chamber (26 States)
Passed Committee
Hearing (31 States)
Filed COS Resolution
(49 States)
AK, AL, AR, AZ, FL, GA,
IN, LA, MO, MS, ND,
NE, OK, TN, TX, UT,
WI, WV, SC
AL, AK, AR, AZ, FL, GA,
IA, LA, MS, NE, NH, NC,
ND, NM, TN, VA, SD, IN,
UT, OK, MO, TX, SC, WI,
WV, WY
AL, AK, AZ, AR, FL, GA, IN,
IA, KS, LA, MA, MI, MS, MO
MT, NE, NH, NM, NC, ND,
OK, PA, SC, SD, TN, TX,
UT, VA, WV, WI, WY
AK, AL, AR, AZ, CA, CO ,
DE, FL, GA, HI, ID, IL, IN,
IA, KS, KY, LA, MA, MD,
ME, MI, MN, MS, MO,
MT, NE, NV, NH, NJ,
NM, NY, NC, ND, OH,
OK, OR, PA, RI, SC, SD,
TN, TX, UT, VA, VT, WA,
WI, WV, WY
REPUBLICAN
CONTROLLED LEGISLATURE
DEMOCRAT CONTROLLED
LEGISLATURE
DIVIDED CHAMBER
LEGISLATURE
Convention of States Foundation
5850 San Felipe, Suite 575
Houston, TX 77057
512-487-5525
ConventionofStates.org
Convention of States Action
5850 San Felipe, Suite 580
Houston, TX 77057
512-487-5525
ConventionofStates.com
*Tax deductible 501©3
Please feel free to reach out to me personally…
Mark.Meckler@COSAction.com
Strategy for Passage of the COS Resolution
The strategy for passage of the Resolution is state-specifi c and is carried out by the 5 Million+ citizen activists
recruited from within 100% of the state legislative districts. Citizen activists put the appropriate pressure on their
state representatives to sponsor or vote in support of the Resolution. To date this strategy has accomplished:
•
49 states fi ling the COS Resolution in their state legislatures.
•
31 states have passed the COS Resolution through at least one committee hearing.
•
26 states have passed the COS Resolution through one entire fl oor chamber.
•
19 states have passed the COS Resolution in its entirety.
The nineteen states that have already passed the Convention of States Resolution are: Florida, Georgia, Alaska,
Alabama, Tennessee, Indiana, Oklahoma, Louisiana, Arizona, North Dakota, Texas, Missouri, Arkansas, Utah,
Mississippi, West Virginia, Wisconsin, Nebraska and South Carolina.
Responses to Common Objections
Objection 1: The Constitutional Convention in Philadelphia defied its authority in
proposing a new Constitution, so we can expect an Article V convention to do the
same.
Response: The 1787 convention did not run away. The runaway claim is based on the assumption
that the Confederation Congress called the convention and defined its scope, but that is incorrect.
The Constitutional Convention was called by Virginia in December, 1786, and its language gave
the states power (under their reserved powers) to re-write the Articles of Confederation. The
congressional resolution, issued months after Virginia had issued the call, was, by its own wording,
merely an expression of “opinion” and a recommendation.
Michael Farris, former President and CEO of Alliance Defending Freedom, has published an
article refuting the claim. It is published in Volume 40 of the Harvard Journal of Law and Public
Policy, and you can find it here.
Objection 2: Nothing in Article V limits the convention to a single topic, and in fact, states
cannot limit the scope of an amendment-proposing convention. Once convened, state
delegations will be free to rewrite the Constitution.
Response: The states whose applications trigger the convention retain the right to limit the
scope of the convention however they choose. This is inherent in their power of application. In
fact, this is the only reason there has never yet been an Article V convention; while over 400
state applications for a convention have been filed, there have not yet been 34 applications for a
convention on the same subject matter. Every scholar who has published articles or books on the
subject in the 21st century agrees that a convention can be limited.
As the agents of the state legislatures who appoint and commission them, the commissioners
only enjoy the scope of authority vested in them by their principals (the state legislatures). Any
actions outside the scope of that authority are void as a matter of common law agency
principles, as well as any state laws adopted to specifically address the issue.
The inherent power of state legislatures to control the selection and instruction of their
commissioners, including the requirement that said commissioners restrict their deliberations to
the specified subject matter, is reinforced by the unbroken, universal historical precedent set by
the interstate conventions held at least 42 times in American history. Those who make a
contrary claim cannot cite a single historical or legal precedent to support it.
Finally, keep in mind that under the explicit terms of Article V, the convention’s only power is
to “propose” amendments to “this Constitution” (the one we already have). Only upon
ratification by 38 states does any single amendment become part of the Constitution.
Objection 3: Adding amendments to the Constitution won’t help anything, because
federal officials simply ignore the Constitution anyway.
Response: It is true that if our Constitution were being interpreted today—and obeyed—
according to its original meaning, we would not be facing most of the problems we face today
in our federal government. But the problem is today is more complex than that officials are
“ignoring” or “disobeying” the Constitution. The real issue is that certain provisions of our
Constitution have been wrenched from their original meaning, perverted, and interpreted to
mean something very different. Federal officials today follow the Constitution as interpreted by
the Supreme Court over the years.
As just one example, consider the individual mandate provision of the Affordable Care Act. Of
course, nowhere in the Article I of the Constitution do we read that Congress has the power to
force individuals to purchase health insurance. However, our modern Supreme Court
“interprets” the General Welfare Clause of Article I broadly as a grant of power for Congress to
tax and spend for virtually any purpose that it believes will benefit the people. Now we know
from history that this is not what was intended. But it is the prevailing modern interpretation,
providing a veneer of legitimacy to Congress’ actions—as well as legal grounds for upholding
them.
The federal government doesn’t “ignore” the Constitution—it takes advantage of loopholes
created through practice and precedent. The only way to close these loopholes definitively
and permanently is through an Article V convention that reinstates limitations on federal power
and jurisdiction in clear, modern language.
Objection 4: We have no idea how an Article V convention would operate, because
it is not spelled out in Article V.
Response: The Constitution does not spell out the details of processes that were well-
known to the Framers (“grand jury” and “habeas corpus” are other examples), and
interstate conventions were common practice for them. We know the process from the
historical records of past conventions. There have been at least 42 in American history.
States always choose and instruct their commissioners, voting is always on a one-state,
one-vote basis, and no interstate convention has ever become a “runaway.”
Objection 5: Congress will use its powers under the Necessary and Proper Clause
to control an Article V convention.
Response: This argument is based on ignorance of existing precedent, holding that
Congress may not use any of its Article I powers in the context of Article V. See Idaho
v. Freeman, 529 F.Supp. 1107, 1151 (D. Idaho 1981) (“Thus Congress, outside of the
authority granted by article V, has no power to act with regard to an amendment, i.e., it
does not retain any of its traditional authority vested in it by article I.”) This case was
later vacated as moot for procedural reasons, but the central holding remains
unchanged. Congress may not use its power under the Necessary and Proper Clause
with respect to the operation of an Article V convention.
10
Responses to Common Objections
Objection 1: The Constitutional Convention in Philadelphia defied its authority in
proposing a new Constitution, so we can expect an Article V convention to do the
same.
Response: The 1787 convention did not run away. The runaway claim is based on the assumption
that the Confederation Congress called the convention and defined its scope, but that is incorrect.
The Constitutional Convention was called by Virginia in December, 1786, and its language gave
the states power (under their reserved powers) to re-write the Articles of Confederation. The
congressional resolution, issued months after Virginia had issued the call, was, by its own wording,
merely an expression of “opinion” and a recommendation.
Michael Farris, former President and CEO of Alliance Defending Freedom, has published an
article refuting the claim. It is published in Volume 40 of the Harvard Journal of Law and Public
Policy, and you can find it here.
Objection 2: Nothing in Article V limits the convention to a single topic, and in fact, states
cannot limit the scope of an amendment-proposing convention. Once convened, state
delegations will be free to rewrite the Constitution.
Response: The states whose applications trigger the convention retain the right to limit the
scope of the convention however they choose. This is inherent in their power of application. In
fact, this is the only reason there has never yet been an Article V convention; while over 400
state applications for a convention have been filed, there have not yet been 34 applications for a
convention on the same subject matter. Every scholar who has published articles or books on the
subject in the 21st century agrees that a convention can be limited.
As the agents of the state legislatures who appoint and commission them, the commissioners
only enjoy the scope of authority vested in them by their principals (the state legislatures). Any
actions outside the scope of that authority are void as a matter of common law agency
principles, as well as any state laws adopted to specifically address the issue.
The inherent power of state legislatures to control the selection and instruction of their
commissioners, including the requirement that said commissioners restrict their deliberations to
the specified subject matter, is reinforced by the unbroken, universal historical precedent set by
the interstate conventions held at least 42 times in American history. Those who make a
contrary claim cannot cite a single historical or legal precedent to support it.
Finally, keep in mind that under the explicit terms of Article V, the convention’s only power is
to “propose” amendments to “this Constitution” (the one we already have). Only upon
ratification by 38 states does any single amendment become part of the Constitution.
Objection 3: Adding amendments to the Constitution won’t help anything, because
federal officials simply ignore the Constitution anyway.
Response: It is true that if our Constitution were being interpreted today—and obeyed—
according to its original meaning, we would not be facing most of the problems we face today
in our federal government. But the problem is today is more complex than that officials are
“ignoring” or “disobeying” the Constitution. The real issue is that certain provisions of our
Constitution have been wrenched from their original meaning, perverted, and interpreted to
mean something very different. Federal officials today follow the Constitution as interpreted by
the Supreme Court over the years.
As just one example, consider the individual mandate provision of the Affordable Care Act. Of
course, nowhere in the Article I of the Constitution do we read that Congress has the power to
force individuals to purchase health insurance. However, our modern Supreme Court
“interprets” the General Welfare Clause of Article I broadly as a grant of power for Congress to
tax and spend for virtually any purpose that it believes will benefit the people. Now we know
from history that this is not what was intended. But it is the prevailing modern interpretation,
providing a veneer of legitimacy to Congress’ actions—as well as legal grounds for upholding
them.
The federal government doesn’t “ignore” the Constitution—it takes advantage of loopholes
created through practice and precedent. The only way to close these loopholes definitively
and permanently is through an Article V convention that reinstates limitations on federal power
and jurisdiction in clear, modern language.
Objection 4: We have no idea how an Article V convention would operate, because
it is not spelled out in Article V.
Response: The Constitution does not spell out the details of processes that were well-
known to the Framers (“grand jury” and “habeas corpus” are other examples), and
interstate conventions were common practice for them. We know the process from the
historical records of past conventions. There have been at least 42 in American history.
States always choose and instruct their commissioners, voting is always on a one-state,
one-vote basis, and no interstate convention has ever become a “runaway.”
Objection 5: Congress will use its powers under the Necessary and Proper Clause
to control an Article V convention.
Response: This argument is based on ignorance of existing precedent, holding that
Congress may not use any of its Article I powers in the context of Article V. See Idaho
v. Freeman, 529 F.Supp. 1107, 1151 (D. Idaho 1981) (“Thus Congress, outside of the
authority granted by article V, has no power to act with regard to an amendment, i.e., it
does not retain any of its traditional authority vested in it by article I.”) This case was
later vacated as moot for procedural reasons, but the central holding remains
unchanged. Congress may not use its power under the Necessary and Proper Clause
with respect to the operation of an Article V convention.
Objection 6: A convention could change the ratification process just like the
Constitutional Convention did.
Response: (excerpted from an article by Professor Rob Natelson):
● This misinterprets the power of the 1787 convention, which met under the
states’ reserved powers and not under the Articles of Confederation;
● This contradicts the specific words of Article V, which lays out how
amendments to “this Constitution” must be ratified;
● This contradicts 200+ years of Article V court decisions, which rule that every
actor in the amendment process must follow the rules laid out in Article V; and
● This defies reality: The convention has no military force nor even any existence
after adjournment. How will it enforce its decree? Call out the army?
Objection 7: The Article V process was intended only to correct drafting errors;
not to correct abuses of power.
Response: At the Constitutional Convention in 1787, Col. George Mason promoted the
convention procedure specifically as a remedy for abuses of power by the national
government. A number of other historical documents confirm that this was the
Founders’ intention. (https://articlevinfocenter.com/the-founders-pointed-to-article-v-as-a-
cure-for-federal-abuse
)
Moreover, amendments have been used for this purpose before and have been
extremely effective. The Eleventh Amendment was proposed by Congress and ratified
by the states specifically to reverse a wrong Supreme Court decision, Chisholm v.
Georgia, that had given the federal courts more jurisdiction than they should have had.
The problem was corrected through the Article V amendment process.
Objection 8: An Article V convention would open up our beloved Constitution to
massive changes, and the convention could even replace our entire Constitution
with a new one.
Response: An Article V convention to propose amendments is not the same as a
“Constitutional Convention.” At a constitutional convention such as the one in 1787, the
states gather pursuant to their reserved sovereignty and the basic right of the people to
“alter or abolish” their government as recognized in the Declaration of Independence.
At an Article V convention, on the other hand, the states gather pursuant to their power
under Article V, and are limited by its provisions.
The only power an Article V convention will have is the same power that Congress also
has under Article V every day it is in session–the power to propose amendments that
would be added to the Constitution (if ratified by 38 states) just like the 27 amendments
we already have.
11
Responses to Common Objections
Objection 1: The Constitutional Convention in Philadelphia defied its authority in
proposing a new Constitution, so we can expect an Article V convention to do the
same.
Response: The 1787 convention did not run away. The runaway claim is based on the assumption
that the Confederation Congress called the convention and defined its scope, but that is incorrect.
The Constitutional Convention was called by Virginia in December, 1786, and its language gave
the states power (under their reserved powers) to re-write the Articles of Confederation. The
congressional resolution, issued months after Virginia had issued the call, was, by its own wording,
merely an expression of “opinion” and a recommendation.
Michael Farris, former President and CEO of Alliance Defending Freedom, has published an
article refuting the claim. It is published in Volume 40 of the Harvard Journal of Law and Public
Policy, and you can find it here.
Objection 2: Nothing in Article V limits the convention to a single topic, and in fact, states
cannot limit the scope of an amendment-proposing convention. Once convened, state
delegations will be free to rewrite the Constitution.
Response: The states whose applications trigger the convention retain the right to limit the
scope of the convention however they choose. This is inherent in their power of application. In
fact, this is the only reason there has never yet been an Article V convention; while over 400
state applications for a convention have been filed, there have not yet been 34 applications for a
convention on the same subject matter. Every scholar who has published articles or books on the
subject in the 21st century agrees that a convention can be limited.
As the agents of the state legislatures who appoint and commission them, the commissioners
only enjoy the scope of authority vested in them by their principals (the state legislatures). Any
actions outside the scope of that authority are void as a matter of common law agency
principles, as well as any state laws adopted to specifically address the issue.
The inherent power of state legislatures to control the selection and instruction of their
commissioners, including the requirement that said commissioners restrict their deliberations to
the specified subject matter, is reinforced by the unbroken, universal historical precedent set by
the interstate conventions held at least 42 times in American history. Those who make a
contrary claim cannot cite a single historical or legal precedent to support it.
Finally, keep in mind that under the explicit terms of Article V, the convention’s only power is
to “propose” amendments to “this Constitution” (the one we already have). Only upon
ratification by 38 states does any single amendment become part of the Constitution.
Objection 3: Adding amendments to the Constitution won’t help anything, because
federal officials simply ignore the Constitution anyway.
Response: It is true that if our Constitution were being interpreted today—and obeyed—
according to its original meaning, we would not be facing most of the problems we face today
in our federal government. But the problem is today is more complex than that officials are
“ignoring” or “disobeying” the Constitution. The real issue is that certain provisions of our
Constitution have been wrenched from their original meaning, perverted, and interpreted to
mean something very different. Federal officials today follow the Constitution as interpreted by
the Supreme Court over the years.
As just one example, consider the individual mandate provision of the Affordable Care Act. Of
course, nowhere in the Article I of the Constitution do we read that Congress has the power to
force individuals to purchase health insurance. However, our modern Supreme Court
“interprets” the General Welfare Clause of Article I broadly as a grant of power for Congress to
tax and spend for virtually any purpose that it believes will benefit the people. Now we know
from history that this is not what was intended. But it is the prevailing modern interpretation,
providing a veneer of legitimacy to Congress’ actions—as well as legal grounds for upholding
them.
The federal government doesn’t “ignore” the Constitution—it takes advantage of loopholes
created through practice and precedent. The only way to close these loopholes definitively
and permanently is through an Article V convention that reinstates limitations on federal power
and jurisdiction in clear, modern language.
Objection 4: We have no idea how an Article V convention would operate, because
it is not spelled out in Article V.
Response: The Constitution does not spell out the details of processes that were well-
known to the Framers (“grand jury” and “habeas corpus” are other examples), and
interstate conventions were common practice for them. We know the process from the
historical records of past conventions. There have been at least 42 in American history.
States always choose and instruct their commissioners, voting is always on a one-state,
one-vote basis, and no interstate convention has ever become a “runaway.”
Objection 5: Congress will use its powers under the Necessary and Proper Clause
to control an Article V convention.
Response: This argument is based on ignorance of existing precedent, holding that
Congress may not use any of its Article I powers in the context of Article V. See Idaho
v. Freeman, 529 F.Supp. 1107, 1151 (D. Idaho 1981) (“Thus Congress, outside of the
authority granted by article V, has no power to act with regard to an amendment, i.e., it
does not retain any of its traditional authority vested in it by article I.”) This case was
later vacated as moot for procedural reasons, but the central holding remains
unchanged. Congress may not use its power under the Necessary and Proper Clause
with respect to the operation of an Article V convention.
Objection 6: A convention could change the ratification process just like the
Constitutional Convention did.
Response: (excerpted from an article by Professor Rob Natelson):
● This misinterprets the power of the 1787 convention, which met under the
states’ reserved powers and not under the Articles of Confederation;
● This contradicts the specific words of Article V, which lays out how
amendments to “this Constitution” must be ratified;
● This contradicts 200+ years of Article V court decisions, which rule that every
actor in the amendment process must follow the rules laid out in Article V; and
● This defies reality: The convention has no military force nor even any existence
after adjournment. How will it enforce its decree? Call out the army?
Objection 7: The Article V process was intended only to correct drafting errors;
not to correct abuses of power.
Response: At the Constitutional Convention in 1787, Col. George Mason promoted the
convention procedure specifically as a remedy for abuses of power by the national
government. A number of other historical documents confirm that this was the
Founders’ intention. (https://articlevinfocenter.com/the-founders-pointed-to-article-v-as-a-
cure-for-federal-abuse
)
Moreover, amendments have been used for this purpose before and have been
extremely effective. The Eleventh Amendment was proposed by Congress and ratified
by the states specifically to reverse a wrong Supreme Court decision, Chisholm v.
Georgia, that had given the federal courts more jurisdiction than they should have had.
The problem was corrected through the Article V amendment process.
Objection 8: An Article V convention would open up our beloved Constitution to
massive changes, and the convention could even replace our entire Constitution
with a new one.
Response: An Article V convention to propose amendments is not the same as a
“Constitutional Convention.” At a constitutional convention such as the one in 1787, the
states gather pursuant to their reserved sovereignty and the basic right of the people to
“alter or abolish” their government as recognized in the Declaration of Independence.
At an Article V convention, on the other hand, the states gather pursuant to their power
under Article V, and are limited by its provisions.
The only power an Article V convention will have is the same power that Congress also
has under Article V every day it is in session–the power to propose amendments that
would be added to the Constitution (if ratified by 38 states) just like the 27 amendments
we already have.
12
1
Conventional Disinformation
Opponents of an Article V convention for proposing amendments to the U.S. Constitution are stoking
fear with objections based upon disinformation.
A common objection to an Article V convention for proposing amendments is the belief that the
convention will “runaway” by ignoring the limitations placed on it. The Constitutional Convention of
1787 is often cited as an example of a runaway convention.
Limitations on a convention arise from two sources: the call and the commissions. The call is the first
resolution calling for a convention, and it places limitations on the convention as a whole. A commission
is a set of instructions a state legislature gives to its representatives (commissioners) and can be more
restrictive than the call.
The claim that the 1787 convention exceeded its call starts with incorrect identification of the call.
Consider the table on page 14, listing each of the resolutions leading up to the 1787 convention. The
claim is made that the Continental Congress made the call on February 21, 1787 and restricted the
convention to revising the Articles of Confederation. How could this be the call if six states had already
selected and instructed their commissioners prior to February 21, 1787? How would those states know
the subject matter, date, and location of the convention? In fact, the Articles of Confederation did not
grant the Confederation Congress the power to call a Convention of the States.
It was Virginia that issued the call on November 23, 1786, without restricting the convention to revising
the Articles of Confederation. New York and Massachusetts did issue commissions that restricted their
commissioners to revising the Articles of Confederation, but the convention as a whole was not so
restricted.
There have been at least forty-two state conventions in our history (see the table on page 15), and not
one has deviated from the scope of its call (runaway). It is also worth noting in that same table that all
forty-two previous state conventions operated on the principle of one state, one vote.
Another common objection claims that we do not know how an Article V convention would operate.
The list of forty-two previous state conventions would demonstrate that we have a great deal of
experience with operating an Article V convention. In addition, the operation of an Article V convention is
well established in a significant number of court cases on the subject. A sampling of these rulings can be
found in the table on page 16.
Finally, it is self-evident that the framers knew exactly what they meant by a Convention of the States
when they drafted that mechanism into Article V because they were participating in a Convention of the
States at the time! In essence, the founders were saying, “if the states desire to propose amendments
to the Constitution, use the same method we are using right now.”
The data in the following three tables is clear evidence that an Article V convention for proposing
a
mendments is the safe, reliable, and time-tested method the framers intended for such a time as this.
Objection 6: A convention could change the ratification process just like the
Constitutional Convention did.
Response: (excerpted from an article by Professor Rob Natelson):
● This misinterprets the power of the 1787 convention, which met under the
states’ reserved powers and not under the Articles of Confederation;
● This contradicts the specific words of Article V, which lays out how
amendments to “this Constitution” must be ratified;
● This contradicts 200+ years of Article V court decisions, which rule that every
actor in the amendment process must follow the rules laid out in Article V; and
● This defies reality: The convention has no military force nor even any existence
after adjournment. How will it enforce its decree? Call out the army?
Objection 7: The Article V process was intended only to correct drafting errors;
not to correct abuses of power.
Response: At the Constitutional Convention in 1787, Col. George Mason promoted the
convention procedure specifically as a remedy for abuses of power by the national
government. A number of other historical documents confirm that this was the
Founders’ intention. (https://articlevinfocenter.com/the-founders-pointed-to-article-v-as-a-
cure-for-federal-abuse
)
Moreover, amendments have been used for this purpose before and have been
extremely effective. The Eleventh Amendment was proposed by Congress and ratified
by the states specifically to reverse a wrong Supreme Court decision, Chisholm v.
Georgia, that had given the federal courts more jurisdiction than they should have had.
The problem was corrected through the Article V amendment process.
Objection 8: An Article V convention would open up our beloved Constitution to
massive changes, and the convention could even replace our entire Constitution
with a new one.
Response: An Article V convention to propose amendments is not the same as a
“Constitutional Convention.” At a constitutional convention such as the one in 1787, the
states gather pursuant to their reserved sovereignty and the basic right of the people to
“alter or abolish” their government as recognized in the Declaration of Independence.
At an Article V convention, on the other hand, the states gather pursuant to their power
under Article V, and are limited by its provisions.
The only power an Article V convention will have is the same power that Congress also
has under Article V every day it is in session–the power to propose amendments that
would be added to the Constitution (if ratified by 38 states) just like the 27 amendments
we already have.
As was the case with the Bill of Rights, each amendment proposed by an Article V
convention of the states would have to be ratified individually by 38 states. This is
simply not a “re-writing” or “replacing” process. If the states wanted to do that, they
would not need to use the Article V process. They would simply gather, as they did in
1787, pursuant to their residual sovereignty.
This chart highlights the distinctions between these two types of interstate conventions:
13
1
Conventional Disinformation
Opponents of an Article V convention for proposing amendments to the U.S. Constitution are stoking
fear with objections based upon disinformation.
A common objection to an Article V convention for proposing amendments is the belief that the
convention will “runaway” by ignoring the limitations placed on it. The Constitutional Convention of
1787 is often cited as an example of a runaway convention.
Limitations on a convention arise from two sources: the call and the commissions. The call is the first
resolution calling for a convention, and it places limitations on the convention as a whole. A commission
is a set of instructions a state legislature gives to its representatives (commissioners) and can be more
restrictive than the call.
The claim that the 1787 convention exceeded its call starts with incorrect identification of the call.
Consider the table on page 14, listing each of the resolutions leading up to the 1787 convention. The
claim is made that the Continental Congress made the call on February 21, 1787 and restricted the
convention to revising the Articles of Confederation. How could this be the call if six states had already
selected and instructed their commissioners prior to February 21, 1787? How would those states know
the subject matter, date, and location of the convention? In fact, the Articles of Confederation did not
grant the Confederation Congress the power to call a Convention of the States.
It was Virginia that issued the call on November 23, 1786, without restricting the convention to revising
the Articles of Confederation. New York and Massachusetts did issue commissions that restricted their
commissioners to revising the Articles of Confederation, but the convention as a whole was not so
restricted.
There have been at least forty-two state conventions in our history (see the table on page 15), and not
one has deviated from the scope of its call (runaway). It is also worth noting in that same table that all
forty-two previous state conventions operated on the principle of one state, one vote.
Another common objection claims that we do not know how an Article V convention would operate.
The list of forty-two previous state conventions would demonstrate that we have a great deal of
experience with operating an Article V convention. In addition, the operation of an Article V convention is
well established in a significant number of court cases on the subject. A sampling of these rulings can be
found in the table on page 16.
Finally, it is self-evident that the framers knew exactly what they meant by a Convention of the States
when they drafted that mechanism into Article V because they were participating in a Convention of the
States at the time! In essence, the founders were saying, “if the states desire to propose amendments
to the Constitution, use the same method we are using right now.”
The data in the following three tables is clear evidence that an Article V convention for proposing
a
mendments is the safe, reliable, and time-tested method the framers intended for such a time as this.
Objection 6: A convention could change the ratification process just like the
Constitutional Convention did.
Response: (excerpted from an article by Professor Rob Natelson):
● This misinterprets the power of the 1787 convention, which met under the
states’ reserved powers and not under the Articles of Confederation;
● This contradicts the specific words of Article V, which lays out how
amendments to “this Constitution” must be ratified;
● This contradicts 200+ years of Article V court decisions, which rule that every
actor in the amendment process must follow the rules laid out in Article V; and
● This defies reality: The convention has no military force nor even any existence
after adjournment. How will it enforce its decree? Call out the army?
Objection 7: The Article V process was intended only to correct drafting errors;
not to correct abuses of power.
Response: At the Constitutional Convention in 1787, Col. George Mason promoted the
convention procedure specifically as a remedy for abuses of power by the national
government. A number of other historical documents confirm that this was the
Founders’ intention. (https://articlevinfocenter.com/the-founders-pointed-to-article-v-as-a-
cure-for-federal-abuse
)
Moreover, amendments have been used for this purpose before and have been
extremely effective. The Eleventh Amendment was proposed by Congress and ratified
by the states specifically to reverse a wrong Supreme Court decision, Chisholm v.
Georgia, that had given the federal courts more jurisdiction than they should have had.
The problem was corrected through the Article V amendment process.
Objection 8: An Article V convention would open up our beloved Constitution to
massive changes, and the convention could even replace our entire Constitution
with a new one.
Response: An Article V convention to propose amendments is not the same as a
“Constitutional Convention.” At a constitutional convention such as the one in 1787, the
states gather pursuant to their reserved sovereignty and the basic right of the people to
“alter or abolish” their government as recognized in the Declaration of Independence.
At an Article V convention, on the other hand, the states gather pursuant to their power
under Article V, and are limited by its provisions.
The only power an Article V convention will have is the same power that Congress also
has under Article V every day it is in session–the power to propose amendments that
would be added to the Constitution (if ratified by 38 states) just like the 27 amendments
we already have.
As was the case with the Bill of Rights, each amendment proposed by an Article V
convention of the states would have to be ratified individually by 38 states. This is
simply not a “re-writing” or “replacing” process. If the states wanted to do that, they
would not need to use the Article V process. They would simply gather, as they did in
1787, pursuant to their residual sovereignty.
This chart highlights the distinctions between these two types of interstate conventions:
14
3
42 Historical State Conventions
Year
Location
Purpose
Voting
Runaway
1677
Albany
Indian negotiations
1 State 1 Vote
No
1684
Albany
Indian negotiations
1 State 1 Vote
No
1689
Boston
Defense issues
1 State 1 Vote
No
1689
Albany
Indian negotiations
1 State 1 Vote
No
1690
New York City
Defense
1 State 1 Vote
No
1693
New York City
Defense
1 State 1 Vote
No
1694
Albany
Indian negotiations
1 State 1 Vote
No
1704
New York City
Defense
1 State 1 Vote
No
1711
Boston
Defense
1 State 1 Vote
No
1722
Albany
Indian negotiations
1 State 1 Vote
No
1744
Albany
Defense
1 State 1 Vote
No
1744
Lancaster
Indian negotiations
1 State 1 Vote
No
1745
Albany
Defense
1 State 1 Vote
No
1745
Albany
Indian negotiations
1 State 1 Vote
No
1747
New York City
Defense
1 State 1 Vote
No
1751
Albany
Indian negotiations
1 State 1 Vote
No
1754
Albany
Indian negotiations and plan of union
1 State 1 Vote
No
1765
New York City
Response to Stamp Act
1 State 1 Vote
No
1768
Fort Stanwyx
Indian negotiations
1 State 1 Vote
No
1774
New York City
Response to British actions
1 State 1 Vote
No
1776-77 Providence, RI
Paper currency and public credit
1 State 1 Vote
No
1777
Yorktown, PA
Price control
1 State 1 Vote
No
1777
Springfield, MA
Economic issues
1 State 1 Vote
No
1778
New Haven, CT
Price controls and other responses to inflation
1 State 1 Vote
No
1779
Hartford, CT
Economic issues
1 State 1 Vote
No
1780
Philadelphia, PA
Price controls
1 State 1 Vote
No
1780
Boston, MA
Conduct of Revolutionary War
1 State 1 Vote
No
1780
Hartford, CT
Conduct of Revolutionary War
1 State 1 Vote
No
1781
Providence, RI
War supply
1 State 1 Vote
No
1786
Annapolis, MD
Trade
1 State 1 Vote
No
1787
Philadelphia, PA
Propose changes to political system
1 State 1 Vote
No
1814
Hartford, CT
New England states response to the war of 1812 1 State 1 Vote
No
1850
Nashville, TN
Southern response to the North
1 State 1 Vote
No
1861
Washington, DC
Propose a constitutional amendment
1 State 1 Vote
No
1861
Montgomery, AL
Write the Confederate Constitution
1 State 1 Vote
No
1889
St. Louis, MO
Propose anti-trust measures
1 State 1 Vote
No
1922
Santa Fe, NM
Negotiate the Colorado River Compact
1 State 1 Vote
No
1928-29 Santa Fe, NM
Negotiate temporary Rio Grande Compact
1 State 1 Vote
No
1928-38 Colorado Springs, CO
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1937
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1946-49 Denver, CO
Negotiate the Upper Colorado River Basin
Compact
1 State 1 Vote
No
2017
Phoenix, AZ
Propose rules for an Article V convention to
propose a balanced budget
1 State 1 Vote
No
https://articlevinfocenter.com/list-conventions-states-colonies-american-history/
https://articlevinfocenter.com/no-a-convention-of-states-could-not-change-the-one-state-one-vote-
rule/
2
The 1787 Constitutional Convention Call and Commissions
Date
State
Commission
11/23/1786
Virginia
devising and discussing all such alterations and further provisions, as may be
necessary to render the Federal Constitution adequate to the exigencies of the
Union. [meet Second Monday in May 1787 in Philadelphia]
11/24/1786
New Jersey
for the purpose of taking into consideration the state of the Union as to trade and
other important objects, and of devising such further provisions as shall appear
necessary to render the Constitution of the federal government adequate to the
exigencies thereof
12/3/1786
Pennsylvania devising, deliberating on, and discussing all such alterations and further provisions as
may be necessary to render the foederal constitution fully adequate to the exigencies
of the Union
1/6/1787 North Carolina To discuss and decide upon the most effectual means to remove the defects of our
foederal union, and to procure the enlarged purposes which it was intended to
effect.
2/3/1787
Delaware
devising, deliberating on, and discussing, such Alterations and further Provisions, as
may be necessary to render the Foederal Constitution adequate to the Exigencies of
the Union [each State shall have one vote]
2/10/1787
Georgia
Devising and discussing all such alterations and farther provisions, as may be
necessary to render the federal constitution adequate to the exigencies of the union.
2/21/1787 Confederation
Congress
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/6/1787
New York
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/7/1787 Massachusetts amend the Articles of Confederation to render the federal constitution adequate to
the exigencies of government and the preservation of the union.
3/8/1787 South Carolina in devising and discussing all such alterations, clauses, articles and provisions as may
be thought necessary to render the foederal constitution entirely adequate to the
actual situation and future good government of the confederated states
5/17/1787
Connecticut Such Alterations and Provisions, agreeable to the general Principles of Republican
Government, as they shall think proper, to render the foederal Constitution adequate
to the Exigencies of Government, and the Preservation of the Union.
5/26/1787
Maryland
considering such alterations, and further provisions, as may be necessary to render
the federal constitution adequate for the exigencies of the union.
6/27/1787
New
Hampshire
in devising and discussing all such alterations and further provisions as to render the
federal constitution adequate to the exigencies of the Union.
Because it is first, the Virginia resolution is the call, placing limitations on the convention as a whole.
These cannot be the call, because six states had already selected and instructed their commissioners.
https://conventionofstates.com/files/defying-conventional-wisdom-the-constitution-was-not-the-product-of-a-runaway-convention-by-michael-farris-1
3
42 Historical State Conventions
Year
Location
Purpose
Voting
Runaw
1677
Albany
Indian negotiations
1 State 1 Vote
No
1684
Albany
Indian negotiations
1 State 1 Vote
No
1689
Boston
Defense issues
1 State 1 Vote
No
1689
Albany
Indian negotiations
1 State 1 Vote
No
1690
New York City
Defense
1 State 1 Vote
No
1693
New York City
Defense
1 State 1 Vote
No
1694
Albany
Indian negotiations
1 State 1 Vote
No
1704
New York City
Defense
1 State 1 Vote
No
1711
Boston
Defense
1 State 1 Vote
No
1722
Albany
Indian negotiations
1 State 1 Vote
No
1744
Albany
Defense
1 State 1 Vote
No
1744
Lancaster
Indian negotiations
1 State 1 Vote
No
1745
Albany
Defense
1 State 1 Vote
No
1745
Albany
Indian negotiations
1 State 1 Vote
No
1747
New York City
Defense
1 State 1 Vote
No
1751
Albany
Indian negotiations
1 State 1 Vote
No
1754
Albany
Indian negotiations and plan of union
1 State 1 Vote
No
1765
New York City
Response to Stamp Act
1 State 1 Vote
No
1768
Fort Stanwyx
Indian negotiations
1 State 1 Vote
No
1774
New York City
Response to British actions
1 State 1 Vote
No
1776-77 Providence, RI
Paper currency and public credit
1 State 1 Vote
No
1777
Yorktown, PA
Price control
1 State 1 Vote
No
1777
Springfield, MA
Economic issues
1 State 1 Vote
No
1778
New Haven, CT
Price controls and other responses to inflation
1 State 1 Vote
No
1779
Hartford, CT
Economic issues
1 State 1 Vote
No
1780
Philadelphia, PA
Price controls
1 State 1 Vote
No
1780
Boston, MA
Conduct of Revolutionary War
1 State 1 Vote
No
1780
Hartford, CT
Conduct of Revolutionary War
1 State 1 Vote
No
1781
Providence, RI
War supply
1 State 1 Vote
No
1786
Annapolis, MD
Trade
1 State 1 Vote
No
1787
Philadelphia, PA
Propose changes to political system
1 State 1 Vote
No
1814
Hartford, CT
New England states response to the war of 1812 1 State 1 Vote
No
1850
Nashville, TN
Southern response to the North
1 State 1 Vote
No
1861
Washington, DC
Propose a constitutional amendment
1 State 1 Vote
No
1861
Montgomery, AL
Write the Confederate Constitution
1 State 1 Vote
No
1889
St. Louis, MO
Propose anti-trust measures
1 State 1 Vote
No
1922
Santa Fe, NM
Negotiate the Colorado River Compact
1 State 1 Vote
No
1928-29 Santa Fe, NM
Negotiate temporary Rio Grande Compact
1 State 1 Vote
No
1928-38 Colorado Springs, CO
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1937
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1946-49 Denver, CO
Negotiate the Upper Colorado River Basin
Compact
1 State 1 Vote
No
2017
Phoenix, AZ
Propose rules for an Article V convention to
propose a balanced budget
1 State 1 Vote
No
https://articlevinfocenter.com/list-conventions-states-colonies-american-history/
https://articlevinfocenter.com/no-a-convention-of-states-could-not-change-the-one-state-one-vot
rule/
2
The 1787 Constitutional Convention Call and Commissions
Date
State
Commission
11/23/1786
Virginia
devising and discussing all such alterations and further provisions, as may be
necessary to render the Federal Constitution adequate to the exigencies of the
Union. [meet Second Monday in May 1787 in Philadelphia]
11/24/1786
New Jersey
for the purpose of taking into consideration the state of the Union as to trade and
other important objects, and of devising such further provisions as shall appear
necessary to render the Constitution of the federal government adequate to the
exigencies thereof
12/3/1786
Pennsylvania devising, deliberating on, and discussing all such alterations and further provisions as
may be necessary to render the foederal constitution fully adequate to the exigencies
of the Union
1/6/1787 North Carolina To discuss and decide upon the most effectual means to remove the defects of our
foederal union, and to procure the enlarged purposes which it was intended to
effect.
2/3/1787
Delaware
devising, deliberating on, and discussing, such Alterations and further Provisions, as
may be necessary to render the Foederal Constitution adequate to the Exigencies of
the Union [each State shall have one vote]
2/10/1787
Georgia
Devising and discussing all such alterations and farther provisions, as may be
necessary to render the federal constitution adequate to the exigencies of the union.
2/21/1787 Confederation
Congress
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/6/1787
New York
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/7/1787 Massachusetts amend the Articles of Confederation to render the federal constitution adequate to
the exigencies of government and the preservation of the union.
3/8/1787 South Carolina in devising and discussing all such alterations, clauses, articles and provisions as may
be thought necessary to render the foederal constitution entirely adequate to the
actual situation and future good government of the confederated states
5/17/1787
Connecticut Such Alterations and Provisions, agreeable to the general Principles of Republican
Government, as they shall think proper, to render the foederal Constitution adequate
to the Exigencies of Government, and the Preservation of the Union.
5/26/1787
Maryland
considering such alterations, and further provisions, as may be necessary to render
the federal constitution adequate for the exigencies of the union.
6/27/1787
New
Hampshire
in devising and discussing all such alterations and further provisions as to render the
federal constitution adequate to the exigencies of the Union.
Because it is first, the Virginia resolution is the call, placing limitations on the convention as a whole.
These cannot be the call, because six states had already selected and instructed their commissioners.
https://conventionofstates.com/files/defying-conventional-wisdom-the-constitution-was-not-the-product-of-a-runaway-convention-by-michael-farris-1
15
3
42 Historical State Conventions
Year
Location
Purpose
Voting
Runaway
1677
Albany
Indian negotiations
1 State 1 Vote
No
1684
Albany
Indian negotiations
1 State 1 Vote
No
1689
Boston
Defense issues
1 State 1 Vote
No
1689
Albany
Indian negotiations
1 State 1 Vote
No
1690
New York City
Defense
1 State 1 Vote
No
1693
New York City
Defense
1 State 1 Vote
No
1694
Albany
Indian negotiations
1 State 1 Vote
No
1704
New York City
Defense
1 State 1 Vote
No
1711
Boston
Defense
1 State 1 Vote
No
1722
Albany
Indian negotiations
1 State 1 Vote
No
1744
Albany
Defense
1 State 1 Vote
No
1744
Lancaster
Indian negotiations
1 State 1 Vote
No
1745
Albany
Defense
1 State 1 Vote
No
1745
Albany
Indian negotiations
1 State 1 Vote
No
1747
New York City
Defense
1 State 1 Vote
No
1751
Albany
Indian negotiations
1 State 1 Vote
No
1754
Albany
Indian negotiations and plan of union
1 State 1 Vote
No
1765
New York City
Response to Stamp Act
1 State 1 Vote
No
1768
Fort Stanwyx
Indian negotiations
1 State 1 Vote
No
1774
New York City
Response to British actions
1 State 1 Vote
No
1776-77 Providence, RI
Paper currency and public credit
1 State 1 Vote
No
1777
Yorktown, PA
Price control
1 State 1 Vote
No
1777
Springfield, MA
Economic issues
1 State 1 Vote
No
1778
New Haven, CT
Price controls and other responses to inflation
1 State 1 Vote
No
1779
Hartford, CT
Economic issues
1 State 1 Vote
No
1780
Philadelphia, PA
Price controls
1 State 1 Vote
No
1780
Boston, MA
Conduct of Revolutionary War
1 State 1 Vote
No
1780
Hartford, CT
Conduct of Revolutionary War
1 State 1 Vote
No
1781
Providence, RI
War supply
1 State 1 Vote
No
1786
Annapolis, MD
Trade
1 State 1 Vote
No
1787
Philadelphia, PA
Propose changes to political system
1 State 1 Vote
No
1814
Hartford, CT
New England states response to the war of 1812 1 State 1 Vote
No
1850
Nashville, TN
Southern response to the North
1 State 1 Vote
No
1861
Washington, DC
Propose a constitutional amendment
1 State 1 Vote
No
1861
Montgomery, AL
Write the Confederate Constitution
1 State 1 Vote
No
1889
St. Louis, MO
Propose anti-trust measures
1 State 1 Vote
No
1922
Santa Fe, NM
Negotiate the Colorado River Compact
1 State 1 Vote
No
1928-29 Santa Fe, NM
Negotiate temporary Rio Grande Compact
1 State 1 Vote
No
1928-38 Colorado Springs, CO
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1937
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1946-49 Denver, CO
Negotiate the Upper Colorado River Basin
Compact
1 State 1 Vote
No
2017
Phoenix, AZ
Propose rules for an Article V convention to
propose a balanced budget
1 State 1 Vote
No
https://articlevinfocenter.com/list-conventions-states-colonies-american-history/
https://articlevinfocenter.com/no-a-convention-of-states-could-not-change-the-one-state-one-vote-
rule/
2
The 1787 Constitutional Convention Call and Commissions
Date
State
Commission
11/23/1786
Virginia
devising and discussing all such alterations and further provisions, as may be
necessary to render the Federal Constitution adequate to the exigencies of the
Union. [meet Second Monday in May 1787 in Philadelphia]
11/24/1786
New Jersey
for the purpose of taking into consideration the state of the Union as to trade and
other important objects, and of devising such further provisions as shall appear
necessary to render the Constitution of the federal government adequate to the
exigencies thereof
12/3/1786
Pennsylvania devising, deliberating on, and discussing all such alterations and further provisions as
may be necessary to render the foederal constitution fully adequate to the exigencies
of the Union
1/6/1787 North Carolina To discuss and decide upon the most effectual means to remove the defects of our
foederal union, and to procure the enlarged purposes which it was intended to
effect.
2/3/1787
Delaware
devising, deliberating on, and discussing, such Alterations and further Provisions, as
may be necessary to render the Foederal Constitution adequate to the Exigencies of
the Union [each State shall have one vote]
2/10/1787
Georgia
Devising and discussing all such alterations and farther provisions, as may be
necessary to render the federal constitution adequate to the exigencies of the union.
2/21/1787 Confederation
Congress
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/6/1787
New York
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/7/1787 Massachusetts amend the Articles of Confederation to render the federal constitution adequate to
the exigencies of government and the preservation of the union.
3/8/1787 South Carolina in devising and discussing all such alterations, clauses, articles and provisions as may
be thought necessary to render the foederal constitution entirely adequate to the
actual situation and future good government of the confederated states
5/17/1787
Connecticut Such Alterations and Provisions, agreeable to the general Principles of Republican
Government, as they shall think proper, to render the foederal Constitution adequate
to the Exigencies of Government, and the Preservation of the Union.
5/26/1787
Maryland
considering such alterations, and further provisions, as may be necessary to render
the federal constitution adequate for the exigencies of the union.
6/27/1787
New
Hampshire
in devising and discussing all such alterations and further provisions as to render the
federal constitution adequate to the exigencies of the Union.
Because it is first, the Virginia resolution is the call, placing limitations on the convention as a whole.
These cannot be the call, because six states had already selected and instructed their commissioners.
https://conventionofstates.com/files/defying-conventional-wisdom-the-constitution-was-not-the-product-of-a-runaway-convention-by-michael-farris-1
3
42 Historical State Conventions
Year
Location
Purpose
Voting
Runaw
1677
Albany
Indian negotiations
1 State 1 Vote
No
1684
Albany
Indian negotiations
1 State 1 Vote
No
1689
Boston
Defense issues
1 State 1 Vote
No
1689
Albany
Indian negotiations
1 State 1 Vote
No
1690
New York City
Defense
1 State 1 Vote
No
1693
New York City
Defense
1 State 1 Vote
No
1694
Albany
Indian negotiations
1 State 1 Vote
No
1704
New York City
Defense
1 State 1 Vote
No
1711
Boston
Defense
1 State 1 Vote
No
1722
Albany
Indian negotiations
1 State 1 Vote
No
1744
Albany
Defense
1 State 1 Vote
No
1744
Lancaster
Indian negotiations
1 State 1 Vote
No
1745
Albany
Defense
1 State 1 Vote
No
1745
Albany
Indian negotiations
1 State 1 Vote
No
1747
New York City
Defense
1 State 1 Vote
No
1751
Albany
Indian negotiations
1 State 1 Vote
No
1754
Albany
Indian negotiations and plan of union
1 State 1 Vote
No
1765
New York City
Response to Stamp Act
1 State 1 Vote
No
1768
Fort Stanwyx
Indian negotiations
1 State 1 Vote
No
1774
New York City
Response to British actions
1 State 1 Vote
No
1776-77 Providence, RI
Paper currency and public credit
1 State 1 Vote
No
1777
Yorktown, PA
Price control
1 State 1 Vote
No
1777
Springfield, MA
Economic issues
1 State 1 Vote
No
1778
New Haven, CT
Price controls and other responses to inflation
1 State 1 Vote
No
1779
Hartford, CT
Economic issues
1 State 1 Vote
No
1780
Philadelphia, PA
Price controls
1 State 1 Vote
No
1780
Boston, MA
Conduct of Revolutionary War
1 State 1 Vote
No
1780
Hartford, CT
Conduct of Revolutionary War
1 State 1 Vote
No
1781
Providence, RI
War supply
1 State 1 Vote
No
1786
Annapolis, MD
Trade
1 State 1 Vote
No
1787
Philadelphia, PA
Propose changes to political system
1 State 1 Vote
No
1814
Hartford, CT
New England states response to the war of 1812 1 State 1 Vote
No
1850
Nashville, TN
Southern response to the North
1 State 1 Vote
No
1861
Washington, DC
Propose a constitutional amendment
1 State 1 Vote
No
1861
Montgomery, AL
Write the Confederate Constitution
1 State 1 Vote
No
1889
St. Louis, MO
Propose anti-trust measures
1 State 1 Vote
No
1922
Santa Fe, NM
Negotiate the Colorado River Compact
1 State 1 Vote
No
1928-29 Santa Fe, NM
Negotiate temporary Rio Grande Compact
1 State 1 Vote
No
1928-38 Colorado Springs, CO
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1937
Santa Fe, NM
Negotiate the Rio Grande Compact
1 State 1 Vote
No
1946-49 Denver, CO
Negotiate the Upper Colorado River Basin
Compact
1 State 1 Vote
No
2017
Phoenix, AZ
Propose rules for an Article V convention to
propose a balanced budget
1 State 1 Vote
No
https://articlevinfocenter.com/list-conventions-states-colonies-american-history/
https://articlevinfocenter.com/no-a-convention-of-states-could-not-change-the-one-state-one-vot
rule/
2
The 1787 Constitutional Convention Call and Commissions
Date
State
Commission
11/23/1786
Virginia
devising and discussing all such alterations and further provisions, as may be
necessary to render the Federal Constitution adequate to the exigencies of the
Union. [meet Second Monday in May 1787 in Philadelphia]
11/24/1786
New Jersey
for the purpose of taking into consideration the state of the Union as to trade and
other important objects, and of devising such further provisions as shall appear
necessary to render the Constitution of the federal government adequate to the
exigencies thereof
12/3/1786
Pennsylvania devising, deliberating on, and discussing all such alterations and further provisions as
may be necessary to render the foederal constitution fully adequate to the exigencies
of the Union
1/6/1787 North Carolina To discuss and decide upon the most effectual means to remove the defects of our
foederal union, and to procure the enlarged purposes which it was intended to
effect.
2/3/1787
Delaware
devising, deliberating on, and discussing, such Alterations and further Provisions, as
may be necessary to render the Foederal Constitution adequate to the Exigencies of
the Union [each State shall have one vote]
2/10/1787
Georgia
Devising and discussing all such alterations and farther provisions, as may be
necessary to render the federal constitution adequate to the exigencies of the union.
2/21/1787 Confederation
Congress
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/6/1787
New York
the sole and express purpose of revising the Articles of Confederation and reporting
to Congress and the several legislatures such alterations and provisions therein as
shall when agreed to in Congress and confirmed by the states render the federal
constitution adequate to the exigencies of government and the preservation of the
Union.
3/7/1787 Massachusetts amend the Articles of Confederation to render the federal constitution adequate to
the exigencies of government and the preservation of the union.
3/8/1787 South Carolina in devising and discussing all such alterations, clauses, articles and provisions as may
be thought necessary to render the foederal constitution entirely adequate to the
actual situation and future good government of the confederated states
5/17/1787
Connecticut Such Alterations and Provisions, agreeable to the general Principles of Republican
Government, as they shall think proper, to render the foederal Constitution adequate
to the Exigencies of Government, and the Preservation of the Union.
5/26/1787
Maryland
considering such alterations, and further provisions, as may be necessary to render
the federal constitution adequate for the exigencies of the union.
6/27/1787
New
Hampshire
in devising and discussing all such alterations and further provisions as to render the
federal constitution adequate to the exigencies of the Union.
Because it is first, the Virginia resolution is the call, placing limitations on the convention as a whole.
These cannot be the call, because six states had already selected and instructed their commissioners.
https://conventionofstates.com/files/defying-conventional-wisdom-the-constitution-was-not-the-product-of-a-runaway-convention-by-michael-farris-1
16
4
Selected Court Cases Related to Article V
Case
Holding
Barker v. Hazeltine, 3 F. Supp. 2d 1088 (D.S.D. 1998)
Article V is the only constitutional method of
amending the US Constitution.
Dodge v. Woolsey, 59 U.S. 331 (1855)
Amendatory conventions may be single issue.
The States and/or the people cannot
dictate the amendments. A state
application is valid solely because it was
made by the state.
Gralike v. Cooke, 191 F. 3d 911 (8th Cir. 1999)
Article V Conventions cannot be prohibited
from deliberation and consideration of a
proposed amendment and thereby limited to
pre-written wording.
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) No signature of the President is required for a
constitutional amendment to be valid and
complete.
In Re Opinion of the Justices, 204 N.C. 306, 172 S.E.
474 (1933)
An Article V Convention may be limited in
purpose to a single issue or to a fixed set of
issues.
Leser v. Garnett, 258 U.S. 130 (1922)
The state legislature’s discretion could not be
supplanted by the rules imposed by a third
party.
Opinion of the Justices to the Senate, 373 Mass. 877,
366 N.E. 2d 1226 (1977)
The governor plays no role in the approval
process of an Article V Convention application.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539
(1842)
No one is authorized to question the validity
of a state’s application for an Article V
Convention.
Smith v. Union Bank of Georgetown, 30 U.S. 518
(1831)
An Article V Convention is a “convention of
the States” and is therefore endowed with the
powers of an interstate convention.
State of Rhode Island v. Palmer, 253 U.S. 320 (1920) An Article V Convention will require only two-
thirds of the quorum present to conduct
business.
Ullmann v. United States, 350 U.S. 422 (1956)
The amendment and ratification processes
cannot be changed to circumvent the Article V
Convention.
United States v. Thibault, 47 F.2d 169 (2d Cir. 1931)
The federal or national government is not
concerned with how an Article V Convention
of a state legislature is constituted. Therefore,
the Article V Convention is empowered to
organize and conduct its business as the
delegates or commissioners see fit.
https://rickbulow.com/Library/Books/Non-Fiction/ArticleV/FindingsOfCourtCasesRelatedToArticleVOfTheUnitedStatesConstitution.pdf
PROBLEMS
IN THE TESTIMONY OF
ROBERT BROWN
By Professor Rob Natelson
17
4
Selected Court Cases Related to Article V
Case
Holding
Barker v. Hazeltine, 3 F. Supp. 2d 1088 (D.S.D. 1998)
Article V is the only constitutional method of
amending the US Constitution.
Dodge v. Woolsey, 59 U.S. 331 (1855)
Amendatory conventions may be single issue.
The States and/or the people cannot
dictate the amendments. A state
application is valid solely because it was
made by the state.
Gralike v. Cooke, 191 F. 3d 911 (8th Cir. 1999)
Article V Conventions cannot be prohibited
from deliberation and consideration of a
proposed amendment and thereby limited to
pre-written wording.
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) No signature of the President is required for a
constitutional amendment to be valid and
complete.
In Re Opinion of the Justices, 204 N.C. 306, 172 S.E.
474 (1933)
An Article V Convention may be limited in
purpose to a single issue or to a fixed set of
issues.
Leser v. Garnett, 258 U.S. 130 (1922)
The state legislature’s discretion could not be
supplanted by the rules imposed by a third
party.
Opinion of the Justices to the Senate, 373 Mass. 877,
366 N.E. 2d 1226 (1977)
The governor plays no role in the approval
process of an Article V Convention application.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539
(1842)
No one is authorized to question the validity
of a state’s application for an Article V
Convention.
Smith v. Union Bank of Georgetown, 30 U.S. 518
(1831)
An Article V Convention is a “convention of
the States” and is therefore endowed with the
powers of an interstate convention.
State of Rhode Island v. Palmer, 253 U.S. 320 (1920) An Article V Convention will require only two-
thirds of the quorum present to conduct
business.
Ullmann v. United States, 350 U.S. 422 (1956)
The amendment and ratification processes
cannot be changed to circumvent the Article V
Convention.
United States v. Thibault, 47 F.2d 169 (2d Cir. 1931)
The federal or national government is not
concerned with how an Article V Convention
of a state legislature is constituted. Therefore,
the Article V Convention is empowered to
organize and conduct its business as the
delegates or commissioners see fit.
https://rickbulow.com/Library/Books/Non-Fiction/ArticleV/FindingsOfCourtCasesRelatedToArticleVOfTheUnitedStatesConstitution.pdf
PROBLEMS
IN THE TESTIMONY OF
ROBERT BROWN
By Professor Rob Natelson
18
Problems in the Testimony of Robert Brown
By Robert G. Natelson1
1
About the Author: Professor Natelson is the director of the Article V Information Center at the Independence Institute in
Denver and has published widely on many parts of the U.S. Constitution for the scholarly and popular markets. He is the most-
published active scholar on the Constitution’s amendment process, and the author of THE LAW OF ARTICLE V, a legal treatise.
His research studies have been relied on by the highest courts of 16 states, by federal appeals courts in fi ve cases, and by U.S.
Supreme Court Justices in seven cases.
Professor Natelson has a degrees in history and law, the latter from Cornell University (J.D. 1973), where he was elected to
both the Cornell Law Review and the University Senate. (He chose the latter.) After practicing law (1974-85), he served as a
tenure-track and tenured professor of law (1985-2010).
Professor Natelson has split his professional experience between the public and private sectors. He also has extensive political
experience: In Montana, he led several successful statewide ballot campaigns to restrain taxes and spending, and he placed
second in a fi ve-candidate fi eld in the open party primaries for governor (2000). A more complete biography is at https://i2i.
org/about/our-people/rob-natelson/.
“It is much easier to alarm people than to inform them.”
—William Davie
Constitutional Convention Delegate
i
19
Problems in the Testimony of Robert Brown
By Robert G. Natelson1
1
About the Author: Professor Natelson is the director of the Article V Information Center at the Independence Institute in
Denver and has published widely on many parts of the U.S. Constitution for the scholarly and popular markets. He is the most-
published active scholar on the Constitution’s amendment process, and the author of THE LAW OF ARTICLE V, a legal treatise.
His research studies have been relied on by the highest courts of 16 states, by federal appeals courts in fi ve cases, and by U.S.
Supreme Court Justices in seven cases.
Professor Natelson has a degrees in history and law, the latter from Cornell University (J.D. 1973), where he was elected to
both the Cornell Law Review and the University Senate. (He chose the latter.) After practicing law (1974-85), he served as a
tenure-track and tenured professor of law (1985-2010).
Professor Natelson has split his professional experience between the public and private sectors. He also has extensive political
experience: In Montana, he led several successful statewide ballot campaigns to restrain taxes and spending, and he placed
second in a fi ve-candidate fi eld in the open party primaries for governor (2000). A more complete biography is at https://i2i.
org/about/our-people/rob-natelson/.
“It is much easier to alarm people than to inform them.”
—William Davie
Constitutional Convention Delegate
i
20
1
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
I was enjoying success placing research articles in
academic journals on common legal topics. Then
I researched and composed an article on the
more exotic subject of classical Roman law, and I
submitted it to a peer-reviewed legal history journal.
A “peer reviewed” journal is called that because
other scholars anonymously examine and report
on your article before the journal agrees to
publish it. This ensures the contribution is well-
grounded and adds to human knowledge.
Based on peer review of my submission, the
journal’s editor rejected it and provided me with
a copy of the review to explain why.
The reviewer’s assessment was devastating. He
said it was obvious that I was writing without prior
education in Roman law—that I knew little about
scholarship in the fi eld, and, frankly, I was clueless
as to how much I didn’t know.
I was emotionally crushed, but I also recognized
that the reviewer was correct. And although the
reviewer could have remained anonymous, he
kindly disclosed his identity to me. He helped me
work through my disappointment. He outlined
what I needed to do before I could contribute
to the very specialized realm of Roman law. I
don’t remember all his recommendations, but I
do recall that one of them was to acquire some
formal education on the subject.2
The experience taught me that I had fallen into
the common error of undervaluing other people’s
specialties. (Think of all the disasters wrought by
overconfi dent husbands who imagine they can do
their own plumbing!) The experience also taught
me that when researching a subject, you should
gather as much information about it as possible:
Never limit your universe of sources.
The experience had some implications for the
reviewer as well. He told me he had a hard time
writing his assessment, precisely because my
paper lacked the foundation of basic knowledge
of the fi eld. If he were responding to a scholar who
had some foundational knowledge, the review
could have simply pointed out the mistakes, and
perhaps suggest ways to correct them. But to
respond eff ectively to a beginner, he also had to
outline and explain many of the fundamentals.
Later I learned how time consuming this is. For
example, when a lawyer has to thoroughly explain
a legal conclusion to a non-lawyer, the lawyer
fi rst must outline basic concepts taught in law
school before proceeding to the issue at hand.
The diffi culty increases exponentially when the
non-lawyer thinks he’s already an “expert” in the
subject, and has reached a diff erent conclusion.
Such people never want to believe the truth, so
the lawyer has to pile up sources to support the
most elementary propositions.
This is one reason lawyers tell each other, “Never
argue law with a non-lawyer.” Much the same is said
in other specialties as well, and often less politely.
Early in my 25-year career as a legal academic I had an
experience both humiliating and invaluable.
2
After additional research over several years, I was able to publish a related article that did not require as much specialized
knowledge: Robert G. Natelson, The Government as Fiduciary: Lessons from the Reign of the Emperor Trajan, 35
RICHMOND L. REV. 191 (2001).
2
CONVENTION OF STATES
This is such a case: Robert Brown is a novice who
promotes himself as an expert. So to explain why
his conclusions are incorrect you often have to
review the basics understood by all true experts.
That is why this paper is so long.
Background
Robert Brown is an employee of the John Birch
Society (JBS). Videos of his performances
before legislative committees show that he
holds himself out as a “nationally known
constitutional scholar.”3 He or JBS apparently
used like representations of expertise to obtain
an interview with Joshua Philipp of the Epoch
Times, an international newspaper.
However, Brown’s biography shows none of the
background or hard work necessary to make one
a constitutional scholar, much less a “nationally
known” one.4 There is no evidence of formal, or
even informal, training in law, history, or language.
A search of an academic database revealed no
evidence that he has published any scholarship
on the Constitution or on anything else.5
Brown’s biography shows none of the background or hard work necessary to make one a
constitutional scholar, much less a “nationally known” one. There is no evidence of formal, or
even informal, training in law, history, or language. A search of an academic database revealed
no evidence that he has published any scholarship on the Constitution or on anything else.
3
https://www.youtube.com/watch?app=desktop&v=aeaAfCdQk18. The video shows Mr. Brown representing himself as a
“nationally known constitutional scholar” at legislative hearings in North Dakota, South Dakota, and South Carolina.
4
Mr. Brown’s offi cial JBS biography is sketchy. It tells us only that “he and some buddies started a bicycle design company for a
few years,” that he has worked for JBS since 2009 and that he raises chickens and goats on two acres of land.
21
1
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
I was enjoying success placing research articles in
academic journals on common legal topics. Then
I researched and composed an article on the
more exotic subject of classical Roman law, and I
submitted it to a peer-reviewed legal history journal.
A “peer reviewed” journal is called that because
other scholars anonymously examine and report
on your article before the journal agrees to
publish it. This ensures the contribution is well-
grounded and adds to human knowledge.
Based on peer review of my submission, the
journal’s editor rejected it and provided me with
a copy of the review to explain why.
The reviewer’s assessment was devastating. He
said it was obvious that I was writing without prior
education in Roman law—that I knew little about
scholarship in the fi eld, and, frankly, I was clueless
as to how much I didn’t know.
I was emotionally crushed, but I also recognized
that the reviewer was correct. And although the
reviewer could have remained anonymous, he
kindly disclosed his identity to me. He helped me
work through my disappointment. He outlined
what I needed to do before I could contribute
to the very specialized realm of Roman law. I
don’t remember all his recommendations, but I
do recall that one of them was to acquire some
formal education on the subject.2
The experience taught me that I had fallen into
the common error of undervaluing other people’s
specialties. (Think of all the disasters wrought by
overconfi dent husbands who imagine they can do
their own plumbing!) The experience also taught
me that when researching a subject, you should
gather as much information about it as possible:
Never limit your universe of sources.
The experience had some implications for the
reviewer as well. He told me he had a hard time
writing his assessment, precisely because my
paper lacked the foundation of basic knowledge
of the fi eld. If he were responding to a scholar who
had some foundational knowledge, the review
could have simply pointed out the mistakes, and
perhaps suggest ways to correct them. But to
respond eff ectively to a beginner, he also had to
outline and explain many of the fundamentals.
Later I learned how time consuming this is. For
example, when a lawyer has to thoroughly explain
a legal conclusion to a non-lawyer, the lawyer
fi rst must outline basic concepts taught in law
school before proceeding to the issue at hand.
The diffi culty increases exponentially when the
non-lawyer thinks he’s already an “expert” in the
subject, and has reached a diff erent conclusion.
Such people never want to believe the truth, so
the lawyer has to pile up sources to support the
most elementary propositions.
This is one reason lawyers tell each other, “Never
argue law with a non-lawyer.” Much the same is said
in other specialties as well, and often less politely.
Early in my 25-year career as a legal academic I had an
experience both humiliating and invaluable.
2
After additional research over several years, I was able to publish a related article that did not require as much specialized
knowledge: Robert G. Natelson, The Government as Fiduciary: Lessons from the Reign of the Emperor Trajan, 35
RICHMOND L. REV. 191 (2001).
2
CONVENTION OF STATES
This is such a case: Robert Brown is a novice who
promotes himself as an expert. So to explain why
his conclusions are incorrect you often have to
review the basics understood by all true experts.
That is why this paper is so long.
Background
Robert Brown is an employee of the John Birch
Society (JBS). Videos of his performances
before legislative committees show that he
holds himself out as a “nationally known
constitutional scholar.”3 He or JBS apparently
used like representations of expertise to obtain
an interview with Joshua Philipp of the Epoch
Times, an international newspaper.
However, Brown’s biography shows none of the
background or hard work necessary to make one
a constitutional scholar, much less a “nationally
known” one.4 There is no evidence of formal, or
even informal, training in law, history, or language.
A search of an academic database revealed no
evidence that he has published any scholarship
on the Constitution or on anything else.5
Brown’s biography shows none of the background or hard work necessary to make one a
constitutional scholar, much less a “nationally known” one. There is no evidence of formal, or
even informal, training in law, history, or language. A search of an academic database revealed
no evidence that he has published any scholarship on the Constitution or on anything else.
3
https://www.youtube.com/watch?app=desktop&v=aeaAfCdQk18. The video shows Mr. Brown representing himself as a
“nationally known constitutional scholar” at legislative hearings in North Dakota, South Dakota, and South Carolina.
4
Mr. Brown’s offi cial JBS biography is sketchy. It tells us only that “he and some buddies started a bicycle design company for a
few years,” that he has worked for JBS since 2009 and that he raises chickens and goats on two acres of land.
22
3
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
I recognize, of course, that everyone has a First
Amendment right to express his or her opinion,
expert or not. But no one has the right to mislead
legislators on important matters of law and policy
under the cover of false credentials.
To use an analogy: Suppose John Q. Quacker
regularly infl uenced government health policy by
holding himself out as a “nationally known cardiac
surgeon”—but had never gone to medical school,
never served a residency, and never performed
an operation. We would be justifi ably concerned.
We should be equally concerned when a person
off ers constitutional and other legal advice, and
aff ects legislative policy, without any reasonable
basis for doing so.
Yet Brown has repeatedly purveyed constitutional
and legal advice, frequently on the very important
issue of whether state lawmakers should apply for
a convention for proposing amendments to the
United States Constitution. Brown’s statements
are based on citations, sometimes out of
context, from only a narrow sliver of the sources
constitutional scholars employ in their work.6
The Interview
To illustrate the problems in Brown’s approach
I have chosen his Epoch Times interview with
Joshua Philipp. The interview is 30 minutes long.
This paper quotes relevant excerpts, and then
responds to each. The footnote below provides a
link to the entire interview.7
* * * *
Suppose John Q. Quacker regularly influenced government health
policy by holding himself out as a “nationally known cardiac
surgeon”—but had never gone to medical school . . . We should be
equally concerned when a person offers constitutional and other
legal advice, and affects legislative policy, without any reasonable
basis for doing so.
5
Publishing in scholarly journals subjects one’s work to review and critique from others knowledgeable in the subject.
6
Constitutional scholars work with 18th century law books, cases and statutes; the 18th century educational canon (including
the Greco-Roman classics); British parliamentary records; political and philosophical works infl uential with the Founders, such
as those by Aristotle, Cicero, Locke, Montesquieu and DeLolme; colonial charters and instructions to colonial governors; pre-
4
CONVENTION OF STATES
It would have been correct to say that there
are only two ways of proposing amendments.
However, Brown and other convention critics
often fudge the diff erence between proposal and
ratifi cation to suggest, falsely, that a convention
alone, without state ratifi cation, could impose
constitutional change. The Constitution and
many other sources (see Notes) make it absolutely
clear this is not so.
Brown confl ates proposal and ratifi cation elsewhere
in the interview as well, as explained below.
* * * *
Brown: “So, the second method has never been
used before. We’ve been well over 200 years under
the current constitution and it has been brought up
a number of times throughout our nation’s history.”
Correction: This is a half-truth, because it
understates the role the Constitution’s application-
and-convention process has played in American
history. Although the process has not been used
to completion, states have adopted hundreds of
“applications” for a convention, and on several
occasions America has been quite close to one.
On several occasions as well, application campaigns
have forced Congress to propose amendments or
take other action. Without the convention process,
it is very likely neither the Bill of Rights nor the 17th
nor 22nd amendments would have been adopted.
Joshua Philipp: “Hey, welcome back everyone. . . .
Robert Brown. He’s a constitutional expert with the
John Birch Society. And Robert, it’s a real pleasure
to have you on Crossroads. . . . Now, I’m curious
from your standpoint, what is the Convention of
States? How would you describe it?”
Robert Brown: “Convention of States is an
organization pushing to use the second method in
Article V for obtaining changes or amendments to
the Constitution. . . . . Yeah, in Article V it talks
about two diff erent ways of amending or changing
the Constitution.”
Correction: Mr. Brown’s response is in-
accurate in two respects. First, he fails
to distinguish between a “convention of
states” as a constitutional mechanism and
the movement of Convention of States
Action, which is one of several organizations
trying to bring about such a convention.
Second, he erroneously states that there are two
ways of amending the Constitution. In fact, there
are four: (1) proposal by Congress, ratifi cation
by state legislatures, (2) proposal by interstate
convention, ratifi cation by state legislatures,
(3) proposal by Congress, ratifi cation by state
conventions, and (4) proposal by interstate
convention, ratifi cation by state conventions.
1787 state constitutions; debates in the state legislatures and state ratifying conventions; newspaper articles and speeches; and
the records of the Continental, Confederation, and First Federal Congresses. These materials sprawl over hundreds of volumes.
Practicing constitutional lawyers increasingly use the full range of this material as well.
Fully competent constitutional scholarship also requires some background in the Latin language. See FORREST MCDONALD,
NOVUS ORDO SECLORUM xi (1985) (Professor McDonald was arguably our greatest 20th century constitutional historian).
7 https://m.theepochtimes.com/video-arguments-against-the-convention-of-states-interview-with-robert-brown_3754686.
html.
23
3
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
I recognize, of course, that everyone has a First
Amendment right to express his or her opinion,
expert or not. But no one has the right to mislead
legislators on important matters of law and policy
under the cover of false credentials.
To use an analogy: Suppose John Q. Quacker
regularly infl uenced government health policy by
holding himself out as a “nationally known cardiac
surgeon”—but had never gone to medical school,
never served a residency, and never performed
an operation. We would be justifi ably concerned.
We should be equally concerned when a person
off ers constitutional and other legal advice, and
aff ects legislative policy, without any reasonable
basis for doing so.
Yet Brown has repeatedly purveyed constitutional
and legal advice, frequently on the very important
issue of whether state lawmakers should apply for
a convention for proposing amendments to the
United States Constitution. Brown’s statements
are based on citations, sometimes out of
context, from only a narrow sliver of the sources
constitutional scholars employ in their work.6
The Interview
To illustrate the problems in Brown’s approach
I have chosen his Epoch Times interview with
Joshua Philipp. The interview is 30 minutes long.
This paper quotes relevant excerpts, and then
responds to each. The footnote below provides a
link to the entire interview.7
* * * *
Suppose John Q. Quacker regularly influenced government health
policy by holding himself out as a “nationally known cardiac
surgeon”—but had never gone to medical school . . . We should be
equally concerned when a person offers constitutional and other
legal advice, and affects legislative policy, without any reasonable
basis for doing so.
5
Publishing in scholarly journals subjects one’s work to review and critique from others knowledgeable in the subject.
6
Constitutional scholars work with 18th century law books, cases and statutes; the 18th century educational canon (including
the Greco-Roman classics); British parliamentary records; political and philosophical works infl uential with the Founders, such
as those by Aristotle, Cicero, Locke, Montesquieu and DeLolme; colonial charters and instructions to colonial governors; pre-
4
CONVENTION OF STATES
It would have been correct to say that there
are only two ways of proposing amendments.
However, Brown and other convention critics
often fudge the diff erence between proposal and
ratifi cation to suggest, falsely, that a convention
alone, without state ratifi cation, could impose
constitutional change. The Constitution and
many other sources (see Notes) make it absolutely
clear this is not so.
Brown confl ates proposal and ratifi cation elsewhere
in the interview as well, as explained below.
* * * *
Brown: “So, the second method has never been
used before. We’ve been well over 200 years under
the current constitution and it has been brought up
a number of times throughout our nation’s history.”
Correction: This is a half-truth, because it
understates the role the Constitution’s application-
and-convention process has played in American
history. Although the process has not been used
to completion, states have adopted hundreds of
“applications” for a convention, and on several
occasions America has been quite close to one.
On several occasions as well, application campaigns
have forced Congress to propose amendments or
take other action. Without the convention process,
it is very likely neither the Bill of Rights nor the 17th
nor 22nd amendments would have been adopted.
Joshua Philipp: “Hey, welcome back everyone. . . .
Robert Brown. He’s a constitutional expert with the
John Birch Society. And Robert, it’s a real pleasure
to have you on Crossroads. . . . Now, I’m curious
from your standpoint, what is the Convention of
States? How would you describe it?”
Robert Brown: “Convention of States is an
organization pushing to use the second method in
Article V for obtaining changes or amendments to
the Constitution. . . . . Yeah, in Article V it talks
about two diff erent ways of amending or changing
the Constitution.”
Correction: Mr. Brown’s response is in-
accurate in two respects. First, he fails
to distinguish between a “convention of
states” as a constitutional mechanism and
the movement of Convention of States
Action, which is one of several organizations
trying to bring about such a convention.
Second, he erroneously states that there are two
ways of amending the Constitution. In fact, there
are four: (1) proposal by Congress, ratifi cation
by state legislatures, (2) proposal by interstate
convention, ratifi cation by state legislatures,
(3) proposal by Congress, ratifi cation by state
conventions, and (4) proposal by interstate
convention, ratifi cation by state conventions.
1787 state constitutions; debates in the state legislatures and state ratifying conventions; newspaper articles and speeches; and
the records of the Continental, Confederation, and First Federal Congresses. These materials sprawl over hundreds of volumes.
Practicing constitutional lawyers increasingly use the full range of this material as well.
Fully competent constitutional scholarship also requires some background in the Latin language. See FORREST MCDONALD,
NOVUS ORDO SECLORUM xi (1985) (Professor McDonald was arguably our greatest 20th century constitutional historian).
7 https://m.theepochtimes.com/video-arguments-against-the-convention-of-states-interview-with-robert-brown_3754686.
html.
24
5
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
* * * *
Brown: “James Madison in particular. . . . strongly
pushed against achieving the Bill of Rights through an
Article V Convention, saying it was a more dangerous
mode than Congress. He uh- in fact, a letter to
George Turberville, November 2, 1788, he says he
would tremble at the results of a convention. . . . .”
Correction: JBS borrows many of its arguments
from liberal sources opposed to a convention,
and this is one example.
The myth that Madison—the principal author of
Article V—opposed its provision for conventions
apparently was invented by liberal lawyer Arthur J.
Goldberg in 1983.8 Madison’s full correspondence
on this subject includes at least twelve other
letters, and it tells quite a diff erent story.
Madison’s full correspondence tells us that he did
not oppose Article V conventions in general; he
opposed only a specifi c proposal for a convention
to re-write the entire Constitution. In that
correspondence, moreover, Madison also wrote
he would be fully agreeable to holding a convention
in a year or two, after some experience under the
new government. In a letter written later in life,
Madison endorsed an amendments convention
over the favorite JBS “solution” of nullifi cation.9
* * * *
Philipp: “Now, on the Convention of States, you
mentioned that you—you kind of see the same
problems but you—you don’t think that—that the
model of using it to amend the Constitution is a good
model. Why not? What is the argument against it?
What would you say?”
Brown: “. . . Given today’s political environment, if we
were to pull up the anchor of the U.S. Constitution and
drift to the center of political thought today, do you
feel that would move us closer to the views of Marx
or Madison? And obviously, our nation has moved far
more towards the socialist mentality than we were in
1787 when the Constitution was originally written . . . .”
Correction: Convention advocates explicitly
rule out “pull[ing] up the anchor of the
U.S. Constitution.” They seek only (in the
Constitution’s words) “a convention for proposing
amendments” “to this Constitution.”
JBS claims it is a bad time for a convention, and
it has been making that claim for decades, no
matter what the political conditions. It is clear
that JBS does not consider any time to be good.
Practically speaking, right now probably is a good
time for a convention to propose conservative-
leaning amendments: Thirty-one state
legislatures are Republican. Congress is deeply
unpopular, and its narrow Democratic majority
is widely viewed as overreaching. The present
justices on the Supreme Court and other federal
courts are the most favorable in years.
* * * *
8
Arthur J. Goldberg, Commentary: The Proposed Constitutional Convention, 11 HASTINGS CONST. L.Q. 1 (1983).
9
I have collected Madison’s correspondence on the subject at the Article V Information Center webpage at https://
articlevinfocenter.com/what-madison-really-said-in-1788-and-1789-about-holding-a-second-convention/. On a Montana
radio show several years ago, I informed Mr. Brown of this correspondence, what it said, and where to fi nd it.
6
CONVENTION OF STATES
Madison’s full correspondence tells us that he did
not oppose Article V conventions in general; he
opposed only a specific proposal for a convention
to re-write the entire Constitution. In that
correspondence, moreover, Madison also wrote he
would be fully agreeable to holding a convention
in a year or two, after some experience under the
new government.
25
5
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
* * * *
Brown: “James Madison in particular. . . . strongly
pushed against achieving the Bill of Rights through an
Article V Convention, saying it was a more dangerous
mode than Congress. He uh- in fact, a letter to
George Turberville, November 2, 1788, he says he
would tremble at the results of a convention. . . . .”
Correction: JBS borrows many of its arguments
from liberal sources opposed to a convention,
and this is one example.
The myth that Madison—the principal author of
Article V—opposed its provision for conventions
apparently was invented by liberal lawyer Arthur J.
Goldberg in 1983.8 Madison’s full correspondence
on this subject includes at least twelve other
letters, and it tells quite a diff erent story.
Madison’s full correspondence tells us that he did
not oppose Article V conventions in general; he
opposed only a specifi c proposal for a convention
to re-write the entire Constitution. In that
correspondence, moreover, Madison also wrote
he would be fully agreeable to holding a convention
in a year or two, after some experience under the
new government. In a letter written later in life,
Madison endorsed an amendments convention
over the favorite JBS “solution” of nullifi cation.9
* * * *
Philipp: “Now, on the Convention of States, you
mentioned that you—you kind of see the same
problems but you—you don’t think that—that the
model of using it to amend the Constitution is a good
model. Why not? What is the argument against it?
What would you say?”
Brown: “. . . Given today’s political environment, if we
were to pull up the anchor of the U.S. Constitution and
drift to the center of political thought today, do you
feel that would move us closer to the views of Marx
or Madison? And obviously, our nation has moved far
more towards the socialist mentality than we were in
1787 when the Constitution was originally written . . . .”
Correction: Convention advocates explicitly
rule out “pull[ing] up the anchor of the
U.S. Constitution.” They seek only (in the
Constitution’s words) “a convention for proposing
amendments” “to this Constitution.”
JBS claims it is a bad time for a convention, and
it has been making that claim for decades, no
matter what the political conditions. It is clear
that JBS does not consider any time to be good.
Practically speaking, right now probably is a good
time for a convention to propose conservative-
leaning amendments: Thirty-one state
legislatures are Republican. Congress is deeply
unpopular, and its narrow Democratic majority
is widely viewed as overreaching. The present
justices on the Supreme Court and other federal
courts are the most favorable in years.
* * * *
8
Arthur J. Goldberg, Commentary: The Proposed Constitutional Convention, 11 HASTINGS CONST. L.Q. 1 (1983).
9
I have collected Madison’s correspondence on the subject at the Article V Information Center webpage at https://
articlevinfocenter.com/what-madison-really-said-in-1788-and-1789-about-holding-a-second-convention/. On a Montana
radio show several years ago, I informed Mr. Brown of this correspondence, what it said, and where to fi nd it.
6
CONVENTION OF STATES
Madison’s full correspondence tells us that he did
not oppose Article V conventions in general; he
opposed only a specific proposal for a convention
to re-write the entire Constitution. In that
correspondence, moreover, Madison also wrote he
would be fully agreeable to holding a convention
in a year or two, after some experience under the
new government.
26
7
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
Philipp: “Now, I know proponents of it, they
argue that—y’know, they can preven- they can
propose amendments, but they’re saying that you
can’t undo current rights within the Constitution.
Is this accurate? What do you—what do you think
on this?”
Brown: “It’s really not [accurate] . . . . The problem
is, historical precedent does say otherwise. And
this is probably the number one most important
argument between the two sides, is what does the
historical precedent say?”
Correction: There is no “important argument
between the two sides” about historical precedent,
because opponents really don’t cite any.
Historical precedents include (1) about forty
conventions of states and colonies since 1677, (2)
hundreds of convention applications, and (3) a line
of reported Article V court decisions dating back
to 1798. (The case law is discussed in my treatise,
The Law of Article V.) Out of all this material, Mr.
Brown selects only one incident occurring more
than 200 years ago—and as we shall see, even his
understanding of that incident is wrong.
* * * *
Brown: “The 1787 Convention, where our
constitution was written, is really the only national
constitution amending convention we’ve ever had.”
Correction: That’s not true. A national
amending convention was held in Washington,
D.C. in 1861. More states participated in that
convention than at any before or since.10 In
addition, the Albany Congress of 1754 and
the First Continental Congress of 1774 were
national conventions that proposed what were
then basic constitutional changes.
Even if Brown’s comment were technically
true, it would be deceptive. This is because
regional and national conventions of states
operate under much the same protocols,
including (1) limited and defined powers and (2)
equal voting power for each state. The Article
V Information Center provides a complete list
of these conventions.11
* * * *
Brown: “And in that case we have the existing
constitution as the Articles of Confederation.”
Correction: The Articles of Confederation were
not a constitution as we think of one, and the
Confederation Congress was not a government.
The Articles were a multilateral treaty something
like NATO. The Confederation Congress was a
limited coordinating body much like NATO’s
North Atlantic Council.
In thinking of the Articles as a “constitution” in
the modern sense, Mr. Brown commits a common
error in historical method called anachronism.
* * * *
Brown: “States sent delegates to the 1787
Convention and gave them specifi c delegate
commissions, or authority.”
10
For a summary, see It’s Been Done Before: A Convention of the States to Propose Constitutional Amendments,
https://articlevinfocenter.com/its-been-done-before-a-convention-of-the-states-to-propose-constitutional-amendments/.
11
List of Conventions of States and Colonies in American History, https://articlevinfocenter.com/list-conventions-states-
colonies-american-history/.
8
CONVENTION OF STATES
Correction: As noted above, the 1787 convention
is the sole precedent opponents cite. Their
fundamental argument is that the 1787 conclave
exceeded its authority (“ran away”). From
that, we are supposed to fear a more limited
convention held under very diff erent conditions
over 230 years later.
Even if it were true that the 1787 convention
had exceeded its authority (and, as explained
below, it is not true) that is not very good
evidence of what would happen in an Article V
convention today.
First: There have been about forty conventions
of states, many after 1787.12 They were governed
by procedures that have become standardized,
including rules limiting their authority. Everyone
concedes that the other conventions remained
within their authority. Certainly thirty-nine off er
much more precedential weight than just one.
Second: The 1787 convention was not called
under the Articles of Confederation. It
operated outside of any legal restraint other
than the delegates’ commissions. By contrast, a
convention for proposing amendments is called
under the Constitution and is subject to the rules
of the Constitution. Over a century of decided
case law affi rms that.
Third: On the modern convention fl oor, any
commissioner raising issues outside the prescribed
agenda can be reined in with a simple point of order.
Fourth: Modern technology enables the state
legislatures commissioning delegates to use
video oversight to track them 24/7. If a straying
delegate somehow were not brought back to
order, a supervising state legislative committee
would see the incident in real time and could
immediately re-instruct or recall.
* * * *
Brown: “States sent delegates to the 1787
Convention and gave them specifi c delegate
commissions, or authority. You’re authorized to
make these types of changes, you’re not authorized
to change these things . . . Mark Meckler,
Convention of States, organizations like that, will
repeatedly claim those convention delegates were
given full authority to make any changes they felt
were necessary to the Articles of Confederation.
Now, if that were true, do you think that delegates
would have known that? And the reason I say that
is because, as you look through Madison’s notes
from the federal convention, you see this issue came
up repeatedly throughout the Convention: do we
actually have the authority to be creating a new
constitution, instead of just amending the Articles
of Confederation? . . . .
“First side said things like, ‘We really don’t have the
authority and we should not proceed with changing
the Constitution this drastically without fi rst going
back to the States and getting further authority.’
That was the argument of William Patterson, uh
Charles Pinckney, Elbridge Gerry13, John Lansing.
“The other side of the argument was not what
Mr. Meckler says, ‘They have full authority.’ The
12
See the previous footnote.
13
In this interview Brown makes an error no genuine constitutional scholar would make: He pronounced Elbridge Gerry’s last
name with a soft “g” (like “Jerry”) rather than how Gerry actually pronounced it (with a hard “g”). It seems like a small mistake,
but such mistakes are clues to whether the speaker knows what he or she is talking about.
27
7
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
Philipp: “Now, I know proponents of it, they
argue that—y’know, they can preven- they can
propose amendments, but they’re saying that you
can’t undo current rights within the Constitution.
Is this accurate? What do you—what do you think
on this?”
Brown: “It’s really not [accurate] . . . . The problem
is, historical precedent does say otherwise. And
this is probably the number one most important
argument between the two sides, is what does the
historical precedent say?”
Correction: There is no “important argument
between the two sides” about historical precedent,
because opponents really don’t cite any.
Historical precedents include (1) about forty
conventions of states and colonies since 1677, (2)
hundreds of convention applications, and (3) a line
of reported Article V court decisions dating back
to 1798. (The case law is discussed in my treatise,
The Law of Article V.) Out of all this material, Mr.
Brown selects only one incident occurring more
than 200 years ago—and as we shall see, even his
understanding of that incident is wrong.
* * * *
Brown: “The 1787 Convention, where our
constitution was written, is really the only national
constitution amending convention we’ve ever had.”
Correction: That’s not true. A national
amending convention was held in Washington,
D.C. in 1861. More states participated in that
convention than at any before or since.10 In
addition, the Albany Congress of 1754 and
the First Continental Congress of 1774 were
national conventions that proposed what were
then basic constitutional changes.
Even if Brown’s comment were technically
true, it would be deceptive. This is because
regional and national conventions of states
operate under much the same protocols,
including (1) limited and defined powers and (2)
equal voting power for each state. The Article
V Information Center provides a complete list
of these conventions.11
* * * *
Brown: “And in that case we have the existing
constitution as the Articles of Confederation.”
Correction: The Articles of Confederation were
not a constitution as we think of one, and the
Confederation Congress was not a government.
The Articles were a multilateral treaty something
like NATO. The Confederation Congress was a
limited coordinating body much like NATO’s
North Atlantic Council.
In thinking of the Articles as a “constitution” in
the modern sense, Mr. Brown commits a common
error in historical method called anachronism.
* * * *
Brown: “States sent delegates to the 1787
Convention and gave them specifi c delegate
commissions, or authority.”
10
For a summary, see It’s Been Done Before: A Convention of the States to Propose Constitutional Amendments,
https://articlevinfocenter.com/its-been-done-before-a-convention-of-the-states-to-propose-constitutional-amendments/.
11
List of Conventions of States and Colonies in American History, https://articlevinfocenter.com/list-conventions-states-
colonies-american-history/.
8
CONVENTION OF STATES
Correction: As noted above, the 1787 convention
is the sole precedent opponents cite. Their
fundamental argument is that the 1787 conclave
exceeded its authority (“ran away”). From
that, we are supposed to fear a more limited
convention held under very diff erent conditions
over 230 years later.
Even if it were true that the 1787 convention
had exceeded its authority (and, as explained
below, it is not true) that is not very good
evidence of what would happen in an Article V
convention today.
First: There have been about forty conventions
of states, many after 1787.12 They were governed
by procedures that have become standardized,
including rules limiting their authority. Everyone
concedes that the other conventions remained
within their authority. Certainly thirty-nine off er
much more precedential weight than just one.
Second: The 1787 convention was not called
under the Articles of Confederation. It
operated outside of any legal restraint other
than the delegates’ commissions. By contrast, a
convention for proposing amendments is called
under the Constitution and is subject to the rules
of the Constitution. Over a century of decided
case law affi rms that.
Third: On the modern convention fl oor, any
commissioner raising issues outside the prescribed
agenda can be reined in with a simple point of order.
Fourth: Modern technology enables the state
legislatures commissioning delegates to use
video oversight to track them 24/7. If a straying
delegate somehow were not brought back to
order, a supervising state legislative committee
would see the incident in real time and could
immediately re-instruct or recall.
* * * *
Brown: “States sent delegates to the 1787
Convention and gave them specifi c delegate
commissions, or authority. You’re authorized to
make these types of changes, you’re not authorized
to change these things . . . Mark Meckler,
Convention of States, organizations like that, will
repeatedly claim those convention delegates were
given full authority to make any changes they felt
were necessary to the Articles of Confederation.
Now, if that were true, do you think that delegates
would have known that? And the reason I say that
is because, as you look through Madison’s notes
from the federal convention, you see this issue came
up repeatedly throughout the Convention: do we
actually have the authority to be creating a new
constitution, instead of just amending the Articles
of Confederation? . . . .
“First side said things like, ‘We really don’t have the
authority and we should not proceed with changing
the Constitution this drastically without fi rst going
back to the States and getting further authority.’
That was the argument of William Patterson, uh
Charles Pinckney, Elbridge Gerry13, John Lansing.
“The other side of the argument was not what
Mr. Meckler says, ‘They have full authority.’ The
12
See the previous footnote.
13
In this interview Brown makes an error no genuine constitutional scholar would make: He pronounced Elbridge Gerry’s last
name with a soft “g” (like “Jerry”) rather than how Gerry actually pronounced it (with a hard “g”). It seems like a small mistake,
but such mistakes are clues to whether the speaker knows what he or she is talking about.
28
9
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
other side of the argument represented by people
like Edmund Randolph, Alexander Hamilton, even
James Madison, was, ‘You’re right, we really don’t
have the authorization to be doing this, but we
need to do it anyways. This is an urgent need of our
nation. . . . We must proceed.’
“Nobody stood up in the 1787 Convention and claimed,
‘Look at our commissions, we’re fully authorized to
make any changes we feel are necessary.’”
Correction: These comments depart from the
traditional JBS line, which is that Congress called
the 1787 convention and limited it to proposing
only amendments to the Articles. However,
modern research has made that position untenable,
so I am glad to see Mr. Brown abandon it.
Madison points out in Federalist No. 40 that
the state-issued commissions (or “credentials”)
defi ned the scope of the convention’s authority.
Founding-era law books confi rm this rule. Now,
among the 12 states participating in the 1787
convention, all but two (Massachusetts and
New York) issued commissions conveying full
power to propose a new form of government.
The general public overwhelmingly shared the
expectation that the convention would propose
a new form of government—some imagined it
might be a monarchy!
Brown points to statements by commissioners
questioning the extent of their authority. But
what determines whether the 1787 convention “ran
away” is what the commissioners’ credentials said,
not what anyone said they said!
There were several reasons why commissioners
might rhetorically question their authority.
Some represented one of the two states granting
narrower powers, such as New York’s John Lansing
and Massachusetts’ Elbridge Gerry. Virginia’s
Madison points out
in Federalist No.
40 that the state-
issued commissions
(or “credentials”)
defined the scope
of the convention’s
authority. Founding-
era law books confirm
this rule.
10
CONVENTION OF STATES
Edmund Randolph clearly did not buy the “no-
authority” argument, but like the good advocate
he was, he conceded it arguendo (for sake of
argument) and built his case on practical rather
than technical legal grounds. William Paterson of
New Jersey denigrated his authority for strategic
reasons—to strengthen his case for equal state
representation in the Senate. Once Paterson
achieved his goal, he dropped the argument and
urged creation of a strong government.
Brown’s restriction to a narrow range of sources
prevented him from learning that during
the ratifi cation debates the Constitution’s
advocates addressed the issue. They vigorously
defended the delegates’ actions as authorized
by their commissions.14
* * * *
Brown: “In fact, one of the challenges I repeatedly
put out to the other side, they never want to answer
this: show me the delegate. Show me the delegate
who made that claim, ‘We have full authority.’”
Correction: Mr. Brown has never put the
challenge to me. I would have responded by
naming James Wilson, who told the Convention,
“Relative to the powers of this convention—We
have powers to conclude nothing; we have power
to propose anything.”
* * * *
Brown: “Instead, what they did was, and this comes
directly from James Madison, I’m going to read it to
ou directly. They said that people were in fact, the
fountain of all power, and by resorting to them, all
diffi culties were got over.”
Correction: This is another example of
opponents conflating proposal with ratification.
As Madison (in Federalist No. 40) and other
Founders made clear, the power to propose
came from the states via their commissions to
“We have powers to
conclude nothing;
we have power to
propose anything.”
- James Wilson
14
See, e.g., Carlisle Gazette, Mar. 12, 1788, in 34 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1014, 1016.
29
9
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
other side of the argument represented by people
like Edmund Randolph, Alexander Hamilton, even
James Madison, was, ‘You’re right, we really don’t
have the authorization to be doing this, but we
need to do it anyways. This is an urgent need of our
nation. . . . We must proceed.’
“Nobody stood up in the 1787 Convention and claimed,
‘Look at our commissions, we’re fully authorized to
make any changes we feel are necessary.’”
Correction: These comments depart from the
traditional JBS line, which is that Congress called
the 1787 convention and limited it to proposing
only amendments to the Articles. However,
modern research has made that position untenable,
so I am glad to see Mr. Brown abandon it.
Madison points out in Federalist No. 40 that
the state-issued commissions (or “credentials”)
defi ned the scope of the convention’s authority.
Founding-era law books confi rm this rule. Now,
among the 12 states participating in the 1787
convention, all but two (Massachusetts and
New York) issued commissions conveying full
power to propose a new form of government.
The general public overwhelmingly shared the
expectation that the convention would propose
a new form of government—some imagined it
might be a monarchy!
Brown points to statements by commissioners
questioning the extent of their authority. But
what determines whether the 1787 convention “ran
away” is what the commissioners’ credentials said,
not what anyone said they said!
There were several reasons why commissioners
might rhetorically question their authority.
Some represented one of the two states granting
narrower powers, such as New York’s John Lansing
and Massachusetts’ Elbridge Gerry. Virginia’s
Madison points out
in Federalist No.
40 that the state-
issued commissions
(or “credentials”)
defined the scope
of the convention’s
authority. Founding-
era law books confirm
this rule.
10
CONVENTION OF STATES
Edmund Randolph clearly did not buy the “no-
authority” argument, but like the good advocate
he was, he conceded it arguendo (for sake of
argument) and built his case on practical rather
than technical legal grounds. William Paterson of
New Jersey denigrated his authority for strategic
reasons—to strengthen his case for equal state
representation in the Senate. Once Paterson
achieved his goal, he dropped the argument and
urged creation of a strong government.
Brown’s restriction to a narrow range of sources
prevented him from learning that during
the ratifi cation debates the Constitution’s
advocates addressed the issue. They vigorously
defended the delegates’ actions as authorized
by their commissions.14
* * * *
Brown: “In fact, one of the challenges I repeatedly
put out to the other side, they never want to answer
this: show me the delegate. Show me the delegate
who made that claim, ‘We have full authority.’”
Correction: Mr. Brown has never put the
challenge to me. I would have responded by
naming James Wilson, who told the Convention,
“Relative to the powers of this convention—We
have powers to conclude nothing; we have power
to propose anything.”
* * * *
Brown: “Instead, what they did was, and this comes
directly from James Madison, I’m going to read it to
ou directly. They said that people were in fact, the
fountain of all power, and by resorting to them, all
diffi culties were got over.”
Correction: This is another example of
opponents conflating proposal with ratification.
As Madison (in Federalist No. 40) and other
Founders made clear, the power to propose
came from the states via their commissions to
“We have powers to
conclude nothing;
we have power to
propose anything.”
- James Wilson
14
See, e.g., Carlisle Gazette, Mar. 12, 1788, in 34 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1014, 1016.
30
11
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
the delegates. The power to ratify came from
the people, who elected delegates to their
state ratifying conventions.
* * * *
Brown: “They were also given a constitutionally
defi ned ratifi cation process, they threw it out,
retroactively created a much lower bar . . . .”
Correction: Mr. Brown’s claim is that (1)
the Constitutional Convention provided for
ratifi cation by nine states rather than the
thirteen required by the Articles, so therefore
(2) a modern amendments convention might
alter the ratifi cation process as well.
Constitutional scholars consider this as one of
the “runaway” alarmists’ loonier ideas. It is based
on utter ignorance of governing law, both in 1787
and now. Specifi cally:
• As noted before, the 1787 convention was
not held under the Articles of Confederation.
It was held under reserved state powers
retained by signatories of treaties and
recognized explicitly by the Articles. The
convention could, therefore, propose any
method of ratifi cation it chose. Incidentally,
the Confederation Congress approved the
convention’s actions when it forwarded the
Constitution to the states and urged them to
hold ratifying conventions.15
• A convention for proposing amendments,
by contrast, receives its power from the
Constitution and is subject to its rules,
including ratifi cation rules. One of the
clearest principles from 223 years of Article
V court decisions is that no participant in
the amendment process may change the
Constitution’s amendment rules. But Mr.
Brown never mentions case law. From
listening to him you’d think the courts never
issued an Article V ruling and all we have to
go on is what allegedly happened in 1787. Yet
there are hundreds of cases defi ning general
constitutional principles and dozens more
interpreting Article V.
• Nor do alarmists tell us how, if a convention
purported to change the ratifi cation rules, it
could enforce its decision. Call out the army?
* * * *
Brown: “[T]he precedent they set was, these
types of conventions represent, not the States,
not the legislatures, but they represent the people
themselves . . . .”
Correction: It is unclear what Mr. Brown means
by “these types of conventions.” If he is referring
to conventions that deal with constitutional
issues, then his statement is only a half-truth.
Conventions elected directly by the people within
a particular state—sometimes called constituent
conventions—represent the people. Constituent
conventions were used to ratify the U.S.
Constitution and the 21st amendment. They also are
employed to propose and ratify state constitutions.
Interstate conventions whose commissioners
are selected as directed by state legislatures
are called conventions of states or conventions
of the states. They answer to the states or state
legislatures directly, so they represent the people
15
Did Congress Approve the Constitution? A Member’s Letter Says “Yes”, https://articlevinfocenter.com/did-congress-approve-
the-constitution-a-members-letter-says-yes/.
12
CONVENTION OF STATES
only in a remote sense. When called under states’
reserved powers, conventions of states meet to
propose solutions to common problems—such
as coordinating state laws or negotiating water
compacts. When called under Article V of the
Constitution, they may propose amendments
to the states for ratifi cation. My treatise, The
Law of Article V, discusses the legal diff erences
among conventions.
* * * *
Brown: “. . . and as such their power cannot be
limited. Now, we’ve seen that same precedent
upheld repeatedly in state conventions ever since. I
mentioned the Montana one, for example.”
Correction: This is legal nonsense. Conventions—
even those that represent the people directly—
usually are limited. Brown cites the 1972 Montana
constitutional convention as an unlimited body.
But the Montana Supreme Court specifi cally held
that its powers were limited. State of Montana ex rel.
Kvaalen v. Graybill, 496 P.2d 1127 (Mont. 1972).
Unless a convention is acting in absence of an
established government (as in some states at the
opening of the American Revolution), it is always
limited to some extent. For example, a state
convention called under an existing constitution
may not be subject to the legislature, but it is
limited by the terms of the existing constitution.
When state conventions were being considered to
ratify the 21st amendment, some people argued
they would be unlimited—but court adjudication
determined otherwise. As noted earlier, the
courts have ruled repeatedly that all assemblies
operating under Article V are bound by the rules
laid out in the Constitution.
* * * *
Brown: “In fact, if you look to the—the law journal
that’s called Corpus Juris Secundum, that’s a
collection of various Supreme Court rulings from
If a convention purported to change the ratification rules,
how could it enforce its decision? Call out the army?
31
11
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
the delegates. The power to ratify came from
the people, who elected delegates to their
state ratifying conventions.
* * * *
Brown: “They were also given a constitutionally
defi ned ratifi cation process, they threw it out,
retroactively created a much lower bar . . . .”
Correction: Mr. Brown’s claim is that (1)
the Constitutional Convention provided for
ratifi cation by nine states rather than the
thirteen required by the Articles, so therefore
(2) a modern amendments convention might
alter the ratifi cation process as well.
Constitutional scholars consider this as one of
the “runaway” alarmists’ loonier ideas. It is based
on utter ignorance of governing law, both in 1787
and now. Specifi cally:
• As noted before, the 1787 convention was
not held under the Articles of Confederation.
It was held under reserved state powers
retained by signatories of treaties and
recognized explicitly by the Articles. The
convention could, therefore, propose any
method of ratifi cation it chose. Incidentally,
the Confederation Congress approved the
convention’s actions when it forwarded the
Constitution to the states and urged them to
hold ratifying conventions.15
• A convention for proposing amendments,
by contrast, receives its power from the
Constitution and is subject to its rules,
including ratifi cation rules. One of the
clearest principles from 223 years of Article
V court decisions is that no participant in
the amendment process may change the
Constitution’s amendment rules. But Mr.
Brown never mentions case law. From
listening to him you’d think the courts never
issued an Article V ruling and all we have to
go on is what allegedly happened in 1787. Yet
there are hundreds of cases defi ning general
constitutional principles and dozens more
interpreting Article V.
• Nor do alarmists tell us how, if a convention
purported to change the ratifi cation rules, it
could enforce its decision. Call out the army?
* * * *
Brown: “[T]he precedent they set was, these
types of conventions represent, not the States,
not the legislatures, but they represent the people
themselves . . . .”
Correction: It is unclear what Mr. Brown means
by “these types of conventions.” If he is referring
to conventions that deal with constitutional
issues, then his statement is only a half-truth.
Conventions elected directly by the people within
a particular state—sometimes called constituent
conventions—represent the people. Constituent
conventions were used to ratify the U.S.
Constitution and the 21st amendment. They also are
employed to propose and ratify state constitutions.
Interstate conventions whose commissioners
are selected as directed by state legislatures
are called conventions of states or conventions
of the states. They answer to the states or state
legislatures directly, so they represent the people
15
Did Congress Approve the Constitution? A Member’s Letter Says “Yes”, https://articlevinfocenter.com/did-congress-approve-
the-constitution-a-members-letter-says-yes/.
12
CONVENTION OF STATES
only in a remote sense. When called under states’
reserved powers, conventions of states meet to
propose solutions to common problems—such
as coordinating state laws or negotiating water
compacts. When called under Article V of the
Constitution, they may propose amendments
to the states for ratifi cation. My treatise, The
Law of Article V, discusses the legal diff erences
among conventions.
* * * *
Brown: “. . . and as such their power cannot be
limited. Now, we’ve seen that same precedent
upheld repeatedly in state conventions ever since. I
mentioned the Montana one, for example.”
Correction: This is legal nonsense. Conventions—
even those that represent the people directly—
usually are limited. Brown cites the 1972 Montana
constitutional convention as an unlimited body.
But the Montana Supreme Court specifi cally held
that its powers were limited. State of Montana ex rel.
Kvaalen v. Graybill, 496 P.2d 1127 (Mont. 1972).
Unless a convention is acting in absence of an
established government (as in some states at the
opening of the American Revolution), it is always
limited to some extent. For example, a state
convention called under an existing constitution
may not be subject to the legislature, but it is
limited by the terms of the existing constitution.
When state conventions were being considered to
ratify the 21st amendment, some people argued
they would be unlimited—but court adjudication
determined otherwise. As noted earlier, the
courts have ruled repeatedly that all assemblies
operating under Article V are bound by the rules
laid out in the Constitution.
* * * *
Brown: “In fact, if you look to the—the law journal
that’s called Corpus Juris Secundum, that’s a
collection of various Supreme Court rulings from
If a convention purported to change the ratification rules,
how could it enforce its decision? Call out the army?
32
13
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
the States all across the country and we’ve seen
consistently the same thing.”
Correction: Where do we begin with this one?
There is so much error from which to choose!
First: Contrary to Mr. Brown’s description,
Corpus Juris Secundum (CJS) is not a “law
journal.” It is a legal encyclopedia that attempts
to summarize law on all topics.
Second: CJS is not a “collection of various
Supreme Court rulings.” It is principally a legal
text with supporting citations from federal and
states appellate courts at all levels.
Third: Every fi rst-year law student learns that
CJS’s text is not fully trustworthy and should
never be cited as authority. It is used principally
as a case fi nder. You have to read the cases it
cites to fi nd out what the law is, then expand your
research to fi nd other cases on the same topic.
Fourth: Mr. Brown apparently didn’t read
the cases referenced in the part of CJS he
mentions. If he did, he’d know they have
nothing to do with Article V conventions.
He would also learn that those cases are
all very old. They were decided long
before most Article V court rulings
were issued. Thus:
• In Cox v. Robison, 105 Tex. 426,
150 S.W. 1149 (1912), the facts
were that in 1866, the former
Confederate state of Texas was
under federal military occupation. As
commander-in-chief of the U.S. armed
forces, President Andrew Johnson called
for a Texas state constitutional convention.
The court held that the state constitution did
not have to be ratifi ed by the people because
the president had not required it. (Presumably
he could have limited the convention by
requiring it.)
• Frantz v. Autry, 18 Okla. 561, 91 P. 13 (1907)
dealt with a local constitutional convention
Congress had authorized in what was then the
Territory of Oklahoma. The case held that the
convention had all the power Congress gave
it, and that Congress had imposed only a few
limits. The cases said the convention needed
to respect only the limits Congress imposed.
• Koehler & Lange v. Hill, 60 Iowa 543, 14 N.W.
738 (1883) held that when any constitution
prescribes an amendment procedure, that
procedure must be followed. It added “The
powers of a convention are, of course, unlimited.
The members thereof are the representatives
of the people, called together for that purpose.”
But the court was speaking of state constitutional
conventions, not federal conventions, and this
case is contradicted by later authority, such
Every
fi rst-year law
student learns that
Corpus Juris Secundum’s
text is not fully trustworthy
and should never be cited
as authority. It is used
principally as a case
fi nder.
14
CONVENTION OF STATES
as State of Montana ex rel. Kvaalen v. Graybill,
496 P.2d 1127 (Mont. 1972), mentioned above.
• Loomis v. Jackson, 6 W.Va. 613 (1873) says
that “A [state] constitutional convention,
lawfully convened, does not derive its powers
from the legislature; but from the people.
The powers of such a convention are in the
nature of sovereign powers.” But in this
country, we frequently limit sovereignty, and
a convention’s authority can be limited by an
existing constitution.16
• Sproule v. Fredericks, 69 Miss. 898, 11 So.
472 (1892) examined the power of a state
constitutional convention called by the
legislature. It ruled that the convention’s
power was very broad, but also acknowledged
that its power could have been limited.
Again, nothing in these fi ve decisions had
anything to do with Article V.
So much for Mr. Brown’s cases. I’ve taken some
time to examine his misuse of CJS because it
illustrates the conceptual chaos that ensues
when someone ignorant of law starts interpreting
legal texts and spouting legal advice.
* * * *
Brown: “Congress is essentially—they often
refer to it as a sitting constitutional convention
themselves. Madison diff erentiated between them.
Again, as I mentioned as he was putting out his
opposition to an Article V Convention, he said
that in his view, the Convention would feel much
greater latitude in making sweeping changes to
the Constitution than Congress would, which is
why he said Congress is the safer mode.”
An amendments convention
may do only what Congress
may do at any time: propose
amendments. But unlike a
convention, Congress has
unlimited, unrestricted
power to do so.
16
Incidentally, another line in the Loomis case contradicts the common JBS claim that Congress could control an amendments
convention: “That the legislature can neither limit or restrict [conventions] in the exercise of these powers . . . .”
33
13
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
the States all across the country and we’ve seen
consistently the same thing.”
Correction: Where do we begin with this one?
There is so much error from which to choose!
First: Contrary to Mr. Brown’s description,
Corpus Juris Secundum (CJS) is not a “law
journal.” It is a legal encyclopedia that attempts
to summarize law on all topics.
Second: CJS is not a “collection of various
Supreme Court rulings.” It is principally a legal
text with supporting citations from federal and
states appellate courts at all levels.
Third: Every fi rst-year law student learns that
CJS’s text is not fully trustworthy and should
never be cited as authority. It is used principally
as a case fi nder. You have to read the cases it
cites to fi nd out what the law is, then expand your
research to fi nd other cases on the same topic.
Fourth: Mr. Brown apparently didn’t read
the cases referenced in the part of CJS he
mentions. If he did, he’d know they have
nothing to do with Article V conventions.
He would also learn that those cases are
all very old. They were decided long
before most Article V court rulings
were issued. Thus:
• In Cox v. Robison, 105 Tex. 426,
150 S.W. 1149 (1912), the facts
were that in 1866, the former
Confederate state of Texas was
under federal military occupation. As
commander-in-chief of the U.S. armed
forces, President Andrew Johnson called
for a Texas state constitutional convention.
The court held that the state constitution did
not have to be ratifi ed by the people because
the president had not required it. (Presumably
he could have limited the convention by
requiring it.)
• Frantz v. Autry, 18 Okla. 561, 91 P. 13 (1907)
dealt with a local constitutional convention
Congress had authorized in what was then the
Territory of Oklahoma. The case held that the
convention had all the power Congress gave
it, and that Congress had imposed only a few
limits. The cases said the convention needed
to respect only the limits Congress imposed.
• Koehler & Lange v. Hill, 60 Iowa 543, 14 N.W.
738 (1883) held that when any constitution
prescribes an amendment procedure, that
procedure must be followed. It added “The
powers of a convention are, of course, unlimited.
The members thereof are the representatives
of the people, called together for that purpose.”
But the court was speaking of state constitutional
conventions, not federal conventions, and this
case is contradicted by later authority, such
Every
fi rst-year law
student learns that
Corpus Juris Secundum’s
text is not fully trustworthy
and should never be cited
as authority. It is used
principally as a case
fi nder.
14
CONVENTION OF STATES
as State of Montana ex rel. Kvaalen v. Graybill,
496 P.2d 1127 (Mont. 1972), mentioned above.
• Loomis v. Jackson, 6 W.Va. 613 (1873) says
that “A [state] constitutional convention,
lawfully convened, does not derive its powers
from the legislature; but from the people.
The powers of such a convention are in the
nature of sovereign powers.” But in this
country, we frequently limit sovereignty, and
a convention’s authority can be limited by an
existing constitution.16
• Sproule v. Fredericks, 69 Miss. 898, 11 So.
472 (1892) examined the power of a state
constitutional convention called by the
legislature. It ruled that the convention’s
power was very broad, but also acknowledged
that its power could have been limited.
Again, nothing in these fi ve decisions had
anything to do with Article V.
So much for Mr. Brown’s cases. I’ve taken some
time to examine his misuse of CJS because it
illustrates the conceptual chaos that ensues
when someone ignorant of law starts interpreting
legal texts and spouting legal advice.
* * * *
Brown: “Congress is essentially—they often
refer to it as a sitting constitutional convention
themselves. Madison diff erentiated between them.
Again, as I mentioned as he was putting out his
opposition to an Article V Convention, he said
that in his view, the Convention would feel much
greater latitude in making sweeping changes to
the Constitution than Congress would, which is
why he said Congress is the safer mode.”
An amendments convention
may do only what Congress
may do at any time: propose
amendments. But unlike a
convention, Congress has
unlimited, unrestricted
power to do so.
16
Incidentally, another line in the Loomis case contradicts the common JBS claim that Congress could control an amendments
convention: “That the legislature can neither limit or restrict [conventions] in the exercise of these powers . . . .”
34
15
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
Correction: As already discussed, Madison was
not opposed to amendments conventions. The
reason he opposed New York’s 1788 proposal
was because its scope was too wide and it came
too early. But very few convention applications
have been as broad as that. The applications
being passed today are all quite focused.
In this passage Mr. Brown does inadvertently
allude to an inconvenient fact: An amendments
convention may do only what Congress may
do at any time: propose amendments. But
unlike a convention, Congress has unlimited,
unrestricted power to do so.
MR. BROWN CLAIMS
HE ORGANIZED
A GROUP TO
PRESSURE REP.
DENNY REHBERG…
BUT AFTER
BROWN STARTED
HARASSING HIM,
REHBERG’S RATING
DROPPED TO 80%
IN 2011 AND 76% IN
2012—HIS LOWEST
SCORES EVER.
16
CONVENTION OF STATES
* * * *
Brown: “Congress already pretty much does whatever
they want to with regards to what the Constitution
says, for the most part. And the only reason they get
away with that, is we the people don’t hold them to it .
. . .
“When I fi rst moved to Montana about a decade
ago, I organized a couple hundred people and we
started holding our congressman accountable to
his voting as it squared with the Constitution. At
the time, his “constitutional rating,” so to say, was
somewhere around 40-60%. He was always right
in the middle. About half the time he’d follow the
Constitution, half the time he wouldn’t. Within four
months, he was at 80% and thereafter he was stated
at 90%, because we started pushing on him on . . . .”
Correction: This prescription for curing the
federal government is terminally naïve. The
majority of members of Congress, particularly
the leadership, are long-time holders of “safe”
seats and immune to popular, pro-Constitution
lobbying. Indeed, they hold their seats largely by
violating the Constitution.
The Congressman referred to is Rep. Denny
Rehberg (R.-Mont.), who was in offi ce from
2001 to early January, 2013. Mr. Brown claims
he organized a group to lobby Rehberg “about
decade ago” — i.e., sometime between 2009
and 2011. Now, if anyone was amenable to
“constitutionalist” lobbying, Congressman
Rehberg should have been. He served a swing
district and I know from personal acquaintance
that he has conservative values.
But did Brown’s lobbying really have any eff ect?
The American Conservative Union ranks
members of Congress by their commitment to
smaller, constitutional government. The ranking
is on a scale of zero to 100.
Rehberg was rated for the years 2001 through
2012. His ACU voting record for each year was
as follows:
2001 - 84%
2002 - 100%
2003 - 84%
2004 - 96%
2005 - 92%
2006 - 83%
2007 - 88%
2008 - 84%
2009 - 92%
2010 - 96%
2011 - 80%
2012 - 76%
If there is any pattern in their fi gures at all—and I’m
not sure there is—it suggests Brown’s eff orts may
have been counterproductive. In the years including
and up to 2010, Rep. Rehberg’s ACU score had
ranged from 84% to 100%. But after Brown started
harassing him, Rehberg’s rating dropped to 80% in
2011 and 76% in 2012—his lowest scores ever.
In theory millions of Americans could pressure
members of Congress to change. But as a matter
of historical record, this does not happen: The
organizational costs for conservative Americans
are too high. Professional lobbyists concentrated
in Washington, D.C. are paid big money to lobby,
and they do it continuously. They off er concrete
benefi ts beyond what the conservative grassroots
can off er, such as connections to many large
political donors. They enjoy the support of the
national media, which has strong incentives to
concentrate power at the federal level.
There are good people in Congress. But as they
acknowledge, they need fi rm rules to restrain
their behavior and enable them to justify voting
against certain programs. Only constitutional
amendments can provide those rules.
35
15
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
Correction: As already discussed, Madison was
not opposed to amendments conventions. The
reason he opposed New York’s 1788 proposal
was because its scope was too wide and it came
too early. But very few convention applications
have been as broad as that. The applications
being passed today are all quite focused.
In this passage Mr. Brown does inadvertently
allude to an inconvenient fact: An amendments
convention may do only what Congress may
do at any time: propose amendments. But
unlike a convention, Congress has unlimited,
unrestricted power to do so.
MR. BROWN CLAIMS
HE ORGANIZED
A GROUP TO
PRESSURE REP.
DENNY REHBERG…
BUT AFTER
BROWN STARTED
HARASSING HIM,
REHBERG’S RATING
DROPPED TO 80%
IN 2011 AND 76% IN
2012—HIS LOWEST
SCORES EVER.
16
CONVENTION OF STATES
* * * *
Brown: “Congress already pretty much does whatever
they want to with regards to what the Constitution
says, for the most part. And the only reason they get
away with that, is we the people don’t hold them to it .
. . .
“When I fi rst moved to Montana about a decade
ago, I organized a couple hundred people and we
started holding our congressman accountable to
his voting as it squared with the Constitution. At
the time, his “constitutional rating,” so to say, was
somewhere around 40-60%. He was always right
in the middle. About half the time he’d follow the
Constitution, half the time he wouldn’t. Within four
months, he was at 80% and thereafter he was stated
at 90%, because we started pushing on him on . . . .”
Correction: This prescription for curing the
federal government is terminally naïve. The
majority of members of Congress, particularly
the leadership, are long-time holders of “safe”
seats and immune to popular, pro-Constitution
lobbying. Indeed, they hold their seats largely by
violating the Constitution.
The Congressman referred to is Rep. Denny
Rehberg (R.-Mont.), who was in offi ce from
2001 to early January, 2013. Mr. Brown claims
he organized a group to lobby Rehberg “about
decade ago” — i.e., sometime between 2009
and 2011. Now, if anyone was amenable to
“constitutionalist” lobbying, Congressman
Rehberg should have been. He served a swing
district and I know from personal acquaintance
that he has conservative values.
But did Brown’s lobbying really have any eff ect?
The American Conservative Union ranks
members of Congress by their commitment to
smaller, constitutional government. The ranking
is on a scale of zero to 100.
Rehberg was rated for the years 2001 through
2012. His ACU voting record for each year was
as follows:
2001 - 84%
2002 - 100%
2003 - 84%
2004 - 96%
2005 - 92%
2006 - 83%
2007 - 88%
2008 - 84%
2009 - 92%
2010 - 96%
2011 - 80%
2012 - 76%
If there is any pattern in their fi gures at all—and I’m
not sure there is—it suggests Brown’s eff orts may
have been counterproductive. In the years including
and up to 2010, Rep. Rehberg’s ACU score had
ranged from 84% to 100%. But after Brown started
harassing him, Rehberg’s rating dropped to 80% in
2011 and 76% in 2012—his lowest scores ever.
In theory millions of Americans could pressure
members of Congress to change. But as a matter
of historical record, this does not happen: The
organizational costs for conservative Americans
are too high. Professional lobbyists concentrated
in Washington, D.C. are paid big money to lobby,
and they do it continuously. They off er concrete
benefi ts beyond what the conservative grassroots
can off er, such as connections to many large
political donors. They enjoy the support of the
national media, which has strong incentives to
concentrate power at the federal level.
There are good people in Congress. But as they
acknowledge, they need fi rm rules to restrain
their behavior and enable them to justify voting
against certain programs. Only constitutional
amendments can provide those rules.
36
17
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
* * * *
Brown: “We look at Federalist 16, 26, and 33:
Alexander Hamilto-Hamilton talking about the
power that we the people and we the States have
to push back against federal tyranny. Madison
picks it up in Federalist 44 and 46, 46 especially.
And what’s interesting is, in all of those documents
where they’re talking about what to do to push back
against federal tyranny, they never mention Article
V. In fact, when you go onto Federalist 48 and 49,
Madison directly addresses that.”
Correction: Notice how Mr. Brown’s sources
for the ratifi cation debates consist solely of
The Federalist—a minuscule fraction of the
ratifi cation record. He never mentions the
other founding-era commentators who spoke
to the amendments convention process.17 Even
his use of The Federalist is clumsy. For example,
at this point he overlooks references to the
Article V convention process in Federalist No.
43 and No. 85.
* * * *
Brown: “In 49, [Madison] asks, ‘Is it appropriate
to use a Convention to address breaches in the
Constitution when the federal government ignores
it?’ And his answer is absolutely not . . . .”
Correction: This is another example of Brown’s
inept use of The Federalist. Trying to convert
one of its essays into an argument against the
Constitution’s amendment process makes no
sense at all. The Federalist was written to support
the Constitution, not trash it.
Here’s the real scoop on Federalist No. 49: When
Madison was writing, Pennsylvania and Vermont
had constitutions that provided for a “council of
censors” to meet every seven years. The censors
could decide whether their state constitution was
working well. The censors could call a constitutional
convention to address any problems.
In 1783, Thomas Jeff erson outlined his own ideas
for a new Virginia constitution. In partial imitation
of the Pennsylvania-Vermont approach, his draft
would have permitted some state offi cials to call
a convention for “altering this Constitution or
correcting breaches of it.” Strikingly, this new
convention was to have all the powers enjoyed by a
plenary constitutional convention—including power
to write an entirely new document and impose all
its changes without a ratifi cation procedure.
Madison had four objections: (1) A rogue state
legislature could block the process in various ways;
(2) “frequent appeals” for constitutional revision
could reduce public respect for government;
(3) frequent referrals to the citizenry might
cause constitutional turbulence; and (4) the
legislature—the branch most likely responsible
for the problems—might highjack the process.
Notice that none of these objections is
relevant to calling a convention under Article
V. The states, not federal offi cials, initiate
and staff the convention, thereby preventing
congressional obstruction or control. Article
V is very diffi cult to trigger, eliminating the
danger of “frequent appeals.” A convention
for proposing amendments has power only to
propose specifi ed amendments, not re-write
17
For collections of this material, see, for example, my following two articles: Is the Constitution’s Convention for
Proposing Amendments a ‘Mystery’? Overlooked Evidence in the Narrative of Uncertainty, 104 MARQUETTE L.
REV. 1 (2020) and Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing
Amendments,” 65 FLA. L. REV. 615 (2013). See also A Founder Gives Us a Lesson on the Constitution’s Amendment
Process, https://articlevinfocenter.com/founder-gives-us-lesson-constitutions-amendment-process/.
18
CONVENTION OF STATES
the Constitution. And unlike Jeff erson’s idea for
periodic plenary constitutional conventions, any
proposal from an Article V convention is subject
to a diffi cult ratifi cation process.
In a portion of Federalist No. 49 Brown fails
to quote, Madison assures us that, although he
objects to Jeff erson’s plan, still “a constitutional
road to the decision of the people ought to be
marked out and kept open, for certain great and
extraordinary occasions.”
Unlike the proposals Madison was criticizing,
the convention procedure of Article V seems to
meet his goal very well.
* * * *
Brown: “Now, in Federalist uh, I think it was 43,
yeah, in Federalist 43, Madison does address the
Article V Convention. And in that case, he refers to
it as “the remedy for errors” in the Constitution.”
Correction: Mr. Brown is repeating—perhaps
is the author of—a common JBS claim that the
only role for an amendments convention was to
correct drafting errors in the Constitution.
This is still more nonsense. The fact that Madison
stated one purpose of the convention procedure
does not mean he excluded other purposes.
Other Founders itemized additional purposes.
One was the need to correct federal abuses
and overreach. That was the reason George
Mason gave at the Constitutional Convention.
During the ratifi cation debates, prominent
advocates cited the convention procedure again
and again as a key safeguard against abuse.18
* * * *
Trying to convert one
of The Federalist essays
into an argument against
the Constitution’s
amendment process
makes no sense at all.
The Federalist was
written to support the
Constitution, not trash it.
18
See, e.g., The Founders Pointed to Article V as a Cure for Federal Abuse, https://articlevinfocenter.com/the-founders-
pointed-to-article-v-as-a-cure-for-federal-abuse/ (collecting examples).
37
17
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
* * * *
Brown: “We look at Federalist 16, 26, and 33:
Alexander Hamilto-Hamilton talking about the
power that we the people and we the States have
to push back against federal tyranny. Madison
picks it up in Federalist 44 and 46, 46 especially.
And what’s interesting is, in all of those documents
where they’re talking about what to do to push back
against federal tyranny, they never mention Article
V. In fact, when you go onto Federalist 48 and 49,
Madison directly addresses that.”
Correction: Notice how Mr. Brown’s sources
for the ratifi cation debates consist solely of
The Federalist—a minuscule fraction of the
ratifi cation record. He never mentions the
other founding-era commentators who spoke
to the amendments convention process.17 Even
his use of The Federalist is clumsy. For example,
at this point he overlooks references to the
Article V convention process in Federalist No.
43 and No. 85.
* * * *
Brown: “In 49, [Madison] asks, ‘Is it appropriate
to use a Convention to address breaches in the
Constitution when the federal government ignores
it?’ And his answer is absolutely not . . . .”
Correction: This is another example of Brown’s
inept use of The Federalist. Trying to convert
one of its essays into an argument against the
Constitution’s amendment process makes no
sense at all. The Federalist was written to support
the Constitution, not trash it.
Here’s the real scoop on Federalist No. 49: When
Madison was writing, Pennsylvania and Vermont
had constitutions that provided for a “council of
censors” to meet every seven years. The censors
could decide whether their state constitution was
working well. The censors could call a constitutional
convention to address any problems.
In 1783, Thomas Jeff erson outlined his own ideas
for a new Virginia constitution. In partial imitation
of the Pennsylvania-Vermont approach, his draft
would have permitted some state offi cials to call
a convention for “altering this Constitution or
correcting breaches of it.” Strikingly, this new
convention was to have all the powers enjoyed by a
plenary constitutional convention—including power
to write an entirely new document and impose all
its changes without a ratifi cation procedure.
Madison had four objections: (1) A rogue state
legislature could block the process in various ways;
(2) “frequent appeals” for constitutional revision
could reduce public respect for government;
(3) frequent referrals to the citizenry might
cause constitutional turbulence; and (4) the
legislature—the branch most likely responsible
for the problems—might highjack the process.
Notice that none of these objections is
relevant to calling a convention under Article
V. The states, not federal offi cials, initiate
and staff the convention, thereby preventing
congressional obstruction or control. Article
V is very diffi cult to trigger, eliminating the
danger of “frequent appeals.” A convention
for proposing amendments has power only to
propose specifi ed amendments, not re-write
17
For collections of this material, see, for example, my following two articles: Is the Constitution’s Convention for
Proposing Amendments a ‘Mystery’? Overlooked Evidence in the Narrative of Uncertainty, 104 MARQUETTE L.
REV. 1 (2020) and Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing
Amendments,” 65 FLA. L. REV. 615 (2013). See also A Founder Gives Us a Lesson on the Constitution’s Amendment
Process, https://articlevinfocenter.com/founder-gives-us-lesson-constitutions-amendment-process/.
18
CONVENTION OF STATES
the Constitution. And unlike Jeff erson’s idea for
periodic plenary constitutional conventions, any
proposal from an Article V convention is subject
to a diffi cult ratifi cation process.
In a portion of Federalist No. 49 Brown fails
to quote, Madison assures us that, although he
objects to Jeff erson’s plan, still “a constitutional
road to the decision of the people ought to be
marked out and kept open, for certain great and
extraordinary occasions.”
Unlike the proposals Madison was criticizing,
the convention procedure of Article V seems to
meet his goal very well.
* * * *
Brown: “Now, in Federalist uh, I think it was 43,
yeah, in Federalist 43, Madison does address the
Article V Convention. And in that case, he refers to
it as “the remedy for errors” in the Constitution.”
Correction: Mr. Brown is repeating—perhaps
is the author of—a common JBS claim that the
only role for an amendments convention was to
correct drafting errors in the Constitution.
This is still more nonsense. The fact that Madison
stated one purpose of the convention procedure
does not mean he excluded other purposes.
Other Founders itemized additional purposes.
One was the need to correct federal abuses
and overreach. That was the reason George
Mason gave at the Constitutional Convention.
During the ratifi cation debates, prominent
advocates cited the convention procedure again
and again as a key safeguard against abuse.18
* * * *
Trying to convert one
of The Federalist essays
into an argument against
the Constitution’s
amendment process
makes no sense at all.
The Federalist was
written to support the
Constitution, not trash it.
18
See, e.g., The Founders Pointed to Article V as a Cure for Federal Abuse, https://articlevinfocenter.com/the-founders-
pointed-to-article-v-as-a-cure-for-federal-abuse/ (collecting examples).
38
19
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
Brown: “Article V has never been used
technically, as far as the convention mode. It has
no track record of any success other than, well,
it did pressure Congress into passing the 17th
amendment, which I wouldn’t really consider a good
thing but, on the other hand, nullifi cation is just
one of many tools in our quiver.”
Correction: Mr. Brown incorrectly uses the term
“nullifi cation” to refer to all methods of what
Madison called “interposition.” In constitutional
scholarship, “nullifi cation” usually refers to
formally adopting a state law or state convention
resolution declaring that a federal law is void
within state boundaries. The Constitution has
no provision for nullifi cation and, contrary
to JBS claims, Madison fi rmly opposed it—
recommending an Article V convention instead.19
* * * *
Brown: “Well, y’know, in that light, it really gives a
feeling of there’s a sense of urgency here: we’ve gotta
get something done, we’ve gotta do it soon. And if
we look at the timetable, Convention of States is the
example again, they’ve been around for seven years,
they’ve gotten less than halfway to the thirty-four
states mark. If they don’t lose momentum . . . we’re
looking at another 10 years before they get to 34 states.
“They also admit that there will be numerous legal
challenges stalling the process along the way. When
we eventually get to a convention, Congress calls
the convention, they fi nally conclude their—their
whatever amendment proposals they come up with,
and then it goes out to the States for ratifi cation.
. . . You’re looking at a minimum of 20 years for
anything to actually go into eff ect from a convention.
I don’t think we have 20 years to turn this around.”
Correction: It ill behooves someone who had been
slowing down a process to gripe about it being slow.
On several occasions in recent American history,
we have been at the cusp of a convention only to
see JBS and other alarmists frighten people away.
It also ill-behooves an organization to complain about length of time
when it has had over 50 years for its own “solutions” to work.
19
James Madison to Edward Everett, Aug. 28, 1830, https://articlevinfocenter.com/wp-content/uploads/2021/02/1830-0828-
JM-to-E-Everett.pdf.
20
CONVENTION OF STATES
It also ill-behooves an organization to complain
about length of time when it has had over 50
years for its own “solutions” to work. Of course,
they haven’t worked, and by any measure, the
political system is more dysfunctional than ever.
History shows that once a popular amendment
is proposed, it can be ratifi ed in fairly short
order—depending on the proposal, 15 months is
a reasonable estimate. The 26th amendment was
ratifi ed in slightly more than three months.
As for litigation: Mr. Brown probably is wrong on
this one as well. The Convention of States Project
application is designed in a way to minimize the
chances of lengthy litigation. (That is not true of
the non-uniform applications promoted by some
other Article V organizations.)
* * * *
Brown: “… The moment… the balanced budget
becomes a higher priority than all these other
programs, then Congress will make it their highest
priority as well and will pass a balanced budget.
“So, the problem really isn’t Congress, it really isn’t
the federal government, it really comes down to
what we the people tolerate.”
Correction: This refl ects Mr. Brown’s ignorance of
how the federal government works. As the Public
Choice school of economics has documented,
politicians respond to incentives. Over the long
term, these incentives are more important than
the character of the politicians themselves. When
the incentives are bad, the results usually are
bad. When the incentives are good, the results
usually are good. However, concentrated special
interests, with media support, almost always can
off er stronger incentives than the diff used public.
There are various ways to change incentives, but one
of the most direct is to alter the system in which
political actors work—by constitutional amendment.
When given the opportunity for constitutional
change, people act diff erently than they do
from day to day. Take the balanced budget
amendment as an example: Right now, Congress
has strong incentives to defi cit-spend and very
weak incentives to balance the budget. Special
interests fi ght for as much federal booty as
they can, knowing that if they don’t do so, the
spending will happen anyway—but it will go to
someone else. Fiscal conservatives have never
been able to match that clout, even though they
probably comprise most of the U.S. population.
But when people are given a chance to adopt a rule
that they know (1) is for the good of all and (2) will
bind others as much as themselves, they act very
diff erently. A carefully-worded Balanced Budget
Amendment will never be proposed by Congress—
the incentives to defi cit spending are too strong.
But if a convention of the states proposed it, it
probably would be ratifi ed fairly quickly.
Conclusion
Mr. Brown has little knowledge of constitutional
history, constitutional law, law in general, or
government operations. But his claims to
expertise have certainly helped to disable a
key constitutional check-and-balance. Brown
proposes other remedies, but he and his
predecessors have argued for those remedies for
decades, while federal dysfunction grows ever
worse.
Our ability to extricate ourselves from our current
political problems depends heavily on whether
we use the most powerful tool the Founders gave
us for correcting federal dysfunction and abuse.
The time for using it is here—in fact, it has been
here for a very long time.
39
19
PROBLEMS IN THE TESTIMONY OF ROBERT BROWN
Brown: “Article V has never been used
technically, as far as the convention mode. It has
no track record of any success other than, well,
it did pressure Congress into passing the 17th
amendment, which I wouldn’t really consider a good
thing but, on the other hand, nullifi cation is just
one of many tools in our quiver.”
Correction: Mr. Brown incorrectly uses the term
“nullifi cation” to refer to all methods of what
Madison called “interposition.” In constitutional
scholarship, “nullifi cation” usually refers to
formally adopting a state law or state convention
resolution declaring that a federal law is void
within state boundaries. The Constitution has
no provision for nullifi cation and, contrary
to JBS claims, Madison fi rmly opposed it—
recommending an Article V convention instead.19
* * * *
Brown: “Well, y’know, in that light, it really gives a
feeling of there’s a sense of urgency here: we’ve gotta
get something done, we’ve gotta do it soon. And if
we look at the timetable, Convention of States is the
example again, they’ve been around for seven years,
they’ve gotten less than halfway to the thirty-four
states mark. If they don’t lose momentum . . . we’re
looking at another 10 years before they get to 34 states.
“They also admit that there will be numerous legal
challenges stalling the process along the way. When
we eventually get to a convention, Congress calls
the convention, they fi nally conclude their—their
whatever amendment proposals they come up with,
and then it goes out to the States for ratifi cation.
. . . You’re looking at a minimum of 20 years for
anything to actually go into eff ect from a convention.
I don’t think we have 20 years to turn this around.”
Correction: It ill behooves someone who had been
slowing down a process to gripe about it being slow.
On several occasions in recent American history,
we have been at the cusp of a convention only to
see JBS and other alarmists frighten people away.
It also ill-behooves an organization to complain about length of time
when it has had over 50 years for its own “solutions” to work.
19
James Madison to Edward Everett, Aug. 28, 1830, https://articlevinfocenter.com/wp-content/uploads/2021/02/1830-0828-
JM-to-E-Everett.pdf.
20
CONVENTION OF STATES
It also ill-behooves an organization to complain
about length of time when it has had over 50
years for its own “solutions” to work. Of course,
they haven’t worked, and by any measure, the
political system is more dysfunctional than ever.
History shows that once a popular amendment
is proposed, it can be ratifi ed in fairly short
order—depending on the proposal, 15 months is
a reasonable estimate. The 26th amendment was
ratifi ed in slightly more than three months.
As for litigation: Mr. Brown probably is wrong on
this one as well. The Convention of States Project
application is designed in a way to minimize the
chances of lengthy litigation. (That is not true of
the non-uniform applications promoted by some
other Article V organizations.)
* * * *
Brown: “… The moment… the balanced budget
becomes a higher priority than all these other
programs, then Congress will make it their highest
priority as well and will pass a balanced budget.
“So, the problem really isn’t Congress, it really isn’t
the federal government, it really comes down to
what we the people tolerate.”
Correction: This refl ects Mr. Brown’s ignorance of
how the federal government works. As the Public
Choice school of economics has documented,
politicians respond to incentives. Over the long
term, these incentives are more important than
the character of the politicians themselves. When
the incentives are bad, the results usually are
bad. When the incentives are good, the results
usually are good. However, concentrated special
interests, with media support, almost always can
off er stronger incentives than the diff used public.
There are various ways to change incentives, but one
of the most direct is to alter the system in which
political actors work—by constitutional amendment.
When given the opportunity for constitutional
change, people act diff erently than they do
from day to day. Take the balanced budget
amendment as an example: Right now, Congress
has strong incentives to defi cit-spend and very
weak incentives to balance the budget. Special
interests fi ght for as much federal booty as
they can, knowing that if they don’t do so, the
spending will happen anyway—but it will go to
someone else. Fiscal conservatives have never
been able to match that clout, even though they
probably comprise most of the U.S. population.
But when people are given a chance to adopt a rule
that they know (1) is for the good of all and (2) will
bind others as much as themselves, they act very
diff erently. A carefully-worded Balanced Budget
Amendment will never be proposed by Congress—
the incentives to defi cit spending are too strong.
But if a convention of the states proposed it, it
probably would be ratifi ed fairly quickly.
Conclusion
Mr. Brown has little knowledge of constitutional
history, constitutional law, law in general, or
government operations. But his claims to
expertise have certainly helped to disable a
key constitutional check-and-balance. Brown
proposes other remedies, but he and his
predecessors have argued for those remedies for
decades, while federal dysfunction grows ever
worse.
Our ability to extricate ourselves from our current
political problems depends heavily on whether
we use the most powerful tool the Founders gave
us for correcting federal dysfunction and abuse.
The time for using it is here—in fact, it has been
here for a very long time.
40
This page is intentionally left blank
Misled
Liberal Establishment’s
By Professor Rob Natelson
DISINFORMATION CAMPAIGN
AGAINST
ARTICLE V
CONSERVATIVES
the
and how it
41
Misled
Liberal Establishment’s
By Professor Rob Natelson
DISINFORMATION CAMPAIGN
AGAINST
ARTICLE V
CONSERVATIVES
the
and how it
42
The Liberal Establishment’s Disinformation Campaign
Against Article V—and How It Misled Conservatives
By Robert G. Natelson1
Executive Summary
Some conservative organizations regularly lobby against using
the Constitution’s procedure for a “convention for proposing
amendments.” Those organizations may think they are defending the
Constitution, but in fact they are unwittingly repeating misinformation
deliberately injected into public discourse by their political opponents.
This paper shows how liberal establishment fi gures fabricated and spread
this misinformation. This paper also reveals the reasons they did so: to
disable a vital constitutional check on the power of the federal government.
i
43
The Liberal Establishment’s Disinformation Campaign
Against Article V—and How It Misled Conservatives
By Robert G. Natelson1
Executive Summary
Some conservative organizations regularly lobby against using
the Constitution’s procedure for a “convention for proposing
amendments.” Those organizations may think they are defending the
Constitution, but in fact they are unwittingly repeating misinformation
deliberately injected into public discourse by their political opponents.
This paper shows how liberal establishment fi gures fabricated and spread
this misinformation. This paper also reveals the reasons they did so: to
disable a vital constitutional check on the power of the federal government.
i
44
1
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
The Framers adopted the convention procedure
to ensure that Congress did not have a monopoly
on the amendment process. The Framers saw the
procedure as a way the people, acting through
their state legislatures, could respond if the federal
government became dysfunctional or abusive.
There is widespread public support for
amendments to cure some of the real problems
now plaguing the country. However, since repeal
of Prohibition, Congress repeatedly has refused
to propose any constitutional amendments
limiting its own power and prerogatives. When
reformers sought to check lavish congressional
pay raises, for example, they could get nothing
through Congress. Instead, they had to secure
ratifi cation of an amendment (the 27th) that had
been formally proposed in 1789!
Such unresponsiveness would seem to be exactly
the occasion for which the Founders authorized
the convention for proposing amendments. Yet
a handful of conservative groups—including but
not limited to, the John Birch Society and Eagle
Forum—have uncompromisingly opposed any use
of the convention procedure to bypass Congress.
They assiduously lobby state legislatures to
reject any and all proposals for a convention, no
matter how worthwhile or necessary they may
be. This uncompromising opposition has become
a mainstay of those groups’ political identity and,
perhaps, a useful fundraising device.
Although these groups bill themselves as
conservative, their refl exive opposition to the
convention process regularly allies them with the
liberal establishment and with special interest
lobbyists who seek only to protect the status
quo. Since the 1980s, this strange coalition
has blocked all constitutional eff orts to address
federal dysfunction. As a result that dysfunction
has become steadily worse. For example, their
long-held opposition to a balanced budget
convention is a principal reason America now
labors under a $26 trillion national debt.
Under Article V of the U.S. Constitution, any
constitutional amendment must be ratifi ed by three
fourths of the states (now 38 of 50) to be eff ective.
Before an amendment can be ratifi ed, however, it must be
proposed either (1) by Congress or (2) by an interstate task
force the Constitution calls a “convention for proposing
amendments.” This gathering is convened when the people
convince two thirds of the state legislatures (34 of 50) to pass
resolutions demanding it. The convention itself is a meeting
of the representatives of state legislatures—an assembly of
the kind traditionally called a “convention of states.”
2
CONVENTION OF STATES
THE ARGUMENTS AGAINST
A CONVENTION
AND THEIR SOURCE
Opponents present an array of stock arguments
against using the Constitution’s convention
procedure. One such argument—the claim
that “amendments won’t work”—has been so
resoundingly contradicted by history that it has
little credibility.2 The others can be distilled into
the following propositions:
• Little is known about how the process is
supposed to operate;
• a convention for proposing amendments would
be an uncontrollable “constitutional convention;”
• a convention for proposing amendments could
be controlled or manipulated by Congress
under the Constitution’s Necessary and Proper
Clause;3 and
• a convention for proposing amendments could
unilaterally impose radical constitutional changes
on America.
These arguments are largely inconsistent with
established constitutional law and with historical
precedent,4 and (as the reader can see) some are
inconsistent with each other.
Since repeal of Prohibition, Congress repeatedly has refused to propose
any constitutional amendments limiting its own power and prerogatives.
45
1
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
The Framers adopted the convention procedure
to ensure that Congress did not have a monopoly
on the amendment process. The Framers saw the
procedure as a way the people, acting through
their state legislatures, could respond if the federal
government became dysfunctional or abusive.
There is widespread public support for
amendments to cure some of the real problems
now plaguing the country. However, since repeal
of Prohibition, Congress repeatedly has refused
to propose any constitutional amendments
limiting its own power and prerogatives. When
reformers sought to check lavish congressional
pay raises, for example, they could get nothing
through Congress. Instead, they had to secure
ratifi cation of an amendment (the 27th) that had
been formally proposed in 1789!
Such unresponsiveness would seem to be exactly
the occasion for which the Founders authorized
the convention for proposing amendments. Yet
a handful of conservative groups—including but
not limited to, the John Birch Society and Eagle
Forum—have uncompromisingly opposed any use
of the convention procedure to bypass Congress.
They assiduously lobby state legislatures to
reject any and all proposals for a convention, no
matter how worthwhile or necessary they may
be. This uncompromising opposition has become
a mainstay of those groups’ political identity and,
perhaps, a useful fundraising device.
Although these groups bill themselves as
conservative, their refl exive opposition to the
convention process regularly allies them with the
liberal establishment and with special interest
lobbyists who seek only to protect the status
quo. Since the 1980s, this strange coalition
has blocked all constitutional eff orts to address
federal dysfunction. As a result that dysfunction
has become steadily worse. For example, their
long-held opposition to a balanced budget
convention is a principal reason America now
labors under a $26 trillion national debt.
Under Article V of the U.S. Constitution, any
constitutional amendment must be ratifi ed by three
fourths of the states (now 38 of 50) to be eff ective.
Before an amendment can be ratifi ed, however, it must be
proposed either (1) by Congress or (2) by an interstate task
force the Constitution calls a “convention for proposing
amendments.” This gathering is convened when the people
convince two thirds of the state legislatures (34 of 50) to pass
resolutions demanding it. The convention itself is a meeting
of the representatives of state legislatures—an assembly of
the kind traditionally called a “convention of states.”
2
CONVENTION OF STATES
THE ARGUMENTS AGAINST
A CONVENTION
AND THEIR SOURCE
Opponents present an array of stock arguments
against using the Constitution’s convention
procedure. One such argument—the claim
that “amendments won’t work”—has been so
resoundingly contradicted by history that it has
little credibility.2 The others can be distilled into
the following propositions:
• Little is known about how the process is
supposed to operate;
• a convention for proposing amendments would
be an uncontrollable “constitutional convention;”
• a convention for proposing amendments could
be controlled or manipulated by Congress
under the Constitution’s Necessary and Proper
Clause;3 and
• a convention for proposing amendments could
unilaterally impose radical constitutional changes
on America.
These arguments are largely inconsistent with
established constitutional law and with historical
precedent,4 and (as the reader can see) some are
inconsistent with each other.
Since repeal of Prohibition, Congress repeatedly has refused to propose
any constitutional amendments limiting its own power and prerogatives.
46
3
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
This paper shows that these arguments did not
originate with the conservative groups that rely
on them. Rather, they were produced as part of a
disinformation campaign run by America’s liberal
establishment. Members of that establishment
injected these arguments into public discourse to
cripple an important constitutional check on the
federal government.
This disinformation campaign dates from the mid-
20th century. Its participants included members
of Congress who feared that a convention might
propose amendments to limit their power,
activist Supreme Court justices seeking to
protect themselves from constitutional reversal,
and left-of-center academic and popular writers
who opposed restraints on federal authority.
The campaign succeeded because its publicists
enjoyed privileged access to both the academic
and the popular media. The fact that many
conservatives swallowed the propaganda enabled
liberal activists to recede into the background
and rely on conservatives to obstruct reform.
SOME ADDITIONAL
CONSTITUTIONAL
BACKGROUND
The American Founders envisioned citizens and
states using constitutional amendments to prevent
federal overreach and abuse. They ratifi ed the
Bill of Rights in 1791 precisely for this reason. By
the same token, in 1795 they ratifi ed the 11th
amendment to reverse an overreaching Supreme
Court decision.
The Founders also recognized that federal offi cials
might resist amendments to curb their own power.
The convention procedure was designed as a way
to bypass those offi cials. Tench Coxe, a leading
advocate for the Constitution, explained the eff ect:
It is provided, in the clearest words,
that Congress shall be obliged to call a
convention on the application of two thirds
of the legislatures; and all amendments
proposed by such convention, are to be
valid when approved by the conventions or
legislatures of three fourths of the states. It
must therefore be evident to every candid
man, that two thirds of the states can always
procure a general convention for the purpose
of amending the constitution, and that
three fourths of them can introduce those
amendments into the constitution, although
the President, Senate and Federal House
of Representatives, should be unanimously
opposed to each and all of them.5
In adopting the convention mechanism, the
Founders well understood what they were doing.
Conventions among the states (and before
independence, among the colonies) had been
a fi xture of American life for a century.6 The
Founding-Era record renders it quite clear that
a “convention for proposing amendments” was to
be a meeting of representatives from the state
legislatures, and that the procedure and protocols
would be the same as in prior gatherings.7
In the two centuries after the Founding, the
judiciary, including the U.S. Supreme Court,
decided over three dozen cases interpreting
Article V, and in doing so generally followed
historical practice. Thus, by the middle years of
the 20th century, the composition and protocols
of a convention for proposing amendments
should have been clear to anyone who seriously
examined the historical and legal record.
The trouble was that some people were not really
interested in the facts.
4
CONVENTION OF STATES
It must therefore be
evident to every candid
man, that two thirds of
the states can always
procure a general
convention for the
purpose of amending the
constitution, and that
three fourths of them
can introduce those
amendments into the
constitution, although
the President, Senate
and Federal House of
Representatives, should
be unanimously opposed
to each and all of them.
”
“
47
3
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
This paper shows that these arguments did not
originate with the conservative groups that rely
on them. Rather, they were produced as part of a
disinformation campaign run by America’s liberal
establishment. Members of that establishment
injected these arguments into public discourse to
cripple an important constitutional check on the
federal government.
This disinformation campaign dates from the mid-
20th century. Its participants included members
of Congress who feared that a convention might
propose amendments to limit their power,
activist Supreme Court justices seeking to
protect themselves from constitutional reversal,
and left-of-center academic and popular writers
who opposed restraints on federal authority.
The campaign succeeded because its publicists
enjoyed privileged access to both the academic
and the popular media. The fact that many
conservatives swallowed the propaganda enabled
liberal activists to recede into the background
and rely on conservatives to obstruct reform.
SOME ADDITIONAL
CONSTITUTIONAL
BACKGROUND
The American Founders envisioned citizens and
states using constitutional amendments to prevent
federal overreach and abuse. They ratifi ed the
Bill of Rights in 1791 precisely for this reason. By
the same token, in 1795 they ratifi ed the 11th
amendment to reverse an overreaching Supreme
Court decision.
The Founders also recognized that federal offi cials
might resist amendments to curb their own power.
The convention procedure was designed as a way
to bypass those offi cials. Tench Coxe, a leading
advocate for the Constitution, explained the eff ect:
It is provided, in the clearest words,
that Congress shall be obliged to call a
convention on the application of two thirds
of the legislatures; and all amendments
proposed by such convention, are to be
valid when approved by the conventions or
legislatures of three fourths of the states. It
must therefore be evident to every candid
man, that two thirds of the states can always
procure a general convention for the purpose
of amending the constitution, and that
three fourths of them can introduce those
amendments into the constitution, although
the President, Senate and Federal House
of Representatives, should be unanimously
opposed to each and all of them.5
In adopting the convention mechanism, the
Founders well understood what they were doing.
Conventions among the states (and before
independence, among the colonies) had been
a fi xture of American life for a century.6 The
Founding-Era record renders it quite clear that
a “convention for proposing amendments” was to
be a meeting of representatives from the state
legislatures, and that the procedure and protocols
would be the same as in prior gatherings.7
In the two centuries after the Founding, the
judiciary, including the U.S. Supreme Court,
decided over three dozen cases interpreting
Article V, and in doing so generally followed
historical practice. Thus, by the middle years of
the 20th century, the composition and protocols
of a convention for proposing amendments
should have been clear to anyone who seriously
examined the historical and legal record.
The trouble was that some people were not really
interested in the facts.
4
CONVENTION OF STATES
It must therefore be
evident to every candid
man, that two thirds of
the states can always
procure a general
convention for the
purpose of amending the
constitution, and that
three fourths of them
can introduce those
amendments into the
constitution, although
the President, Senate
and Federal House of
Representatives, should
be unanimously opposed
to each and all of them.
”
“
48
5
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
TWENTIETH CENTURY
EFFORTS TO ADDRESS
FEDERAL OVERREACH
As the size, power, and dysfunction of the federal
government grew, many Americans turned to
the Founders’ solution: the convention process.8
The fi rst 20th century eff ort for a convention to
address federal overreach began in 1939, with a
drive to repeal the 16th Amendment.9 By 1950,
that drive had garnered the approval of 18 states.
Another drive induced Congress to propose the
22nd Amendment, mandating a two-term limit
for the President.
Early in the 1960s, the Council of
State Governments suggested three
amendments: one to streamline Article
V, one to reverse Supreme Court
decisions forcing state legislatures to reapportion,
and one to check the Supreme Court by adding
a state-based tribunal to review that Court’s
decisions. In the late 1960s, there was another,
nearly-successful, push for a convention to
address the Court’s reapportionment cases.
In 1979, the fi rst eff ort for a balanced
budget amendment began. Throughout
the next two decades there were
drives to overrule the Supreme
Court’s abortion ruling in Roe v.
Wade, to impose term limits
on members of
Congress, and to enact
other reforms. Some of these
movements enjoyed wide popular
support. The convention procedure was
endorsed by President Eisenhower, by President
Reagan, and (before he became a Supreme
Court Justice) by Antonin Scalia.10
Co
ng
re
ss
[sh
oul
d] r
etai
n co
ntrol
ove
r th
e c
on
ve
nt
io
n
pr
oc
es
s.
It
w
ill
pro
bab
ly b
e ar
gued
that
the v
oting
in a
ny c
onv
ent
ion
m
us
t b
e
by
s
ta
te
s,
sin
ce
th
e v
oti
ng
in
th
e o
rigi
nal C
onst
ituti
ona
l Co
nve
nti
on
wa
s b
y s
tat
es.
St
ate
le
gis
latu
res d
o not a
ccur
ate
ly
re
pr
es
en
t t
he
pe
opl
e of t
heir s
tate
s—t
ha
t a
m
ajo
rity
in
Ins
isten
ce wo
uld be t
horoughly ju
stified on an
alloca
tion o
f vo
ting
po
we
r
by
pop
ulat
ion r
ather
than by
states…to prev
ent racial a
nd oth
er di
scri
min
ati
on
.
N
o S
ena
tor or
Representative
is b
ou
nd
to
vo
te
for
a con
vention c
all
wh
ich
in
it
s f
or
m
fa
ils
to
sa
feg
uar
d
wh
at h
e bel
ieves to be vit
al nat
ion
al
int
ere
sts
.
If the P
resid
ent
be
lie
ve
d
th
e s
tru
ctu
re
and
ma
ndate
of the
“con
vent
ion”
sig
nif
ica
ntl
y w
ron
g,
a
nd d
an
ge
ro
us
to
th
e n
ati
ona
l we
ll-bei
ng, the
n he
wou
ld
su
re
ly
be
ju
sti
fie
d in
veto
ing the
Reso
lutio
n.
Charles Black, Yale law professor
and zealous defender of liberal
causes, penned a polemical article
in 1963 on the Article V process that
was lacking in history and case law.
If
all
th
is
ter
rai
n is
foug
ht over, t
hen the
Amer
ican
pe
op
le
wi
ll
su
rr
en
de
r t
hi
s u
lti
ma
te
po
we
r i
nt
o t
he
ha
nd
s o
f
a m
ino
rity
onl
y if t
hey wa
nt to, and
if the
y wa
nt
to
no
bo
dy
ca
n
st
op
th
em
.
5
6
CONVENTION OF STATES
THE RESPONSE FROM
THE ESTABLISHMENT:
COORDINATED
DISINFORMATION
During the 1950s, ’60s and ’70s, establishment
liberals were pleased with the growth of the
federal government and the activist Supreme
Court. They wanted no corrective amendments.
Rather, they felt threatened by conservative and
moderate eff orts to use the convention process.
Liberals developed, therefore, a campaign to
eff ectively disable it.
Their project was highly successful. It not
only gained traction among liberals, but it
pitted conservatives against conservatives by
persuading many of them to abandon one of the
Constitution’s most important checks on federal
overreaching. The campaign resulted in the
defeat of every eff ort to propose amendments
to reform or restrain the federal government.
Its psychological and political force continued
unabated for decades.11
The story begins in 1951. Faced with a conservative
drive to repeal the 16th Amendment, liberal U.S.
Rep. Wright Patman (D.-Tex.) attacked it
as “fascist” and “reactionary.” He added the
unsupported assertion that a convention for
proposing amendments could not be limited—
that it could “rewrite the whole Constitution.”12
The obvious goal behind that statement was to
scare people into thinking that the convention,
instead of focusing on a single amendment, might
eff ectively stage a coup d’état.
A more coordinated campaign against Article
V began in 1963, with an article in the Yale Law
Journal. It was authored by a law professor named
Charles Black, also of Yale, a zealous defender of
liberal causes and of the activism of the Supreme
Court, then led by Chief Justice Earl Warren. The
occasion for Black’s article was the amendment
proposal of the Council of State Governments.
Despite Black’s position as a professor at one of
the nation’s premier law schools—and despite the
nature of the journal that published it—Black’s
article was polemical rather than scholarly. You
can deduce its tenor from the title: The Proposed
Amendment of Article V: A Threatened Disaster.13
On its face, Black’s article was responding to
the Council of State Government’s proposals.
In fact, his propositions extended much further.
Black objected to the whole idea of the states
being allowed to overrule Congress or the
Supreme Court. So he off ered a wide-ranging
plan of constitutional obstruction. In a nutshell,
his position was as follows:
• The process enabled a tiny minority of the
American people to amend the Constitution
against the wishes of the majority, and
• if allowed to do so, the state legislatures might
radically rewrite the Constitution. They “could
change the presidency to a committee of three,
hobble the treaty power, make the federal
judiciary elective, repeal the fourth amendment,
Co
ng
re
ss
[sh
oul
d] r
etai
n co
ntrol
ove
r th
e c
on
ve
nt
io
n
pr
oc
es
s.
It
w
ill
pro
bab
ly b
e ar
gued
that
the v
oting
in a
ny c
onv
ent
ion
m
us
t b
e
by
s
ta
te
s,
sin
ce
th
e v
oti
ng
in
th
e o
rigi
nal C
onst
ituti
ona
l Co
nve
nti
on
wa
s b
y s
tat
es.
St
ate
le
gis
latu
res d
o not a
ccur
ate
ly
re
pr
es
en
t t
he
pe
opl
e of t
heir s
tate
s—t
ha
t a
m
ajo
rity
in
Ins
isten
ce wo
uld be t
horoughly ju
stified on an
alloca
tion o
f vo
ting
po
we
r
by
pop
ulat
ion r
ather
than by
states…to prev
ent racial a
nd oth
er di
scri
min
ati
on
.
N
o S
ena
tor or
Representative
is b
ou
nd
to
vo
te
for
a con
vention c
all
wh
ich
in
it
s f
or
m
fa
ils
to
sa
feg
uar
d
wh
at h
e bel
ieves to be vit
al nat
ion
al
int
ere
sts
.
If the P
resid
ent
be
lie
ve
d
th
e s
tru
ctu
re
and
ma
ndate
of the
“con
vent
ion”
sig
nif
ica
ntl
y w
ron
g,
a
nd d
an
ge
ro
us
to
th
e n
ati
ona
l we
ll-bei
ng, the
n he
wou
ld
su
re
ly
be
ju
sti
fie
d in
veto
ing the
Reso
lutio
n.
If
all
th
is
ter
rai
n is
foug
ht over, t
hen the
Amer
ican
pe
op
le
wi
ll
su
rr
en
de
r t
hi
s u
lti
ma
te
po
we
r i
nt
o t
he
ha
nd
s o
f
a m
ino
rity
onl
y if t
hey wa
nt to, and
if the
y wa
nt
to
no
bo
dy
ca
n
st
op
th
em
.
49
5
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
TWENTIETH CENTURY
EFFORTS TO ADDRESS
FEDERAL OVERREACH
As the size, power, and dysfunction of the federal
government grew, many Americans turned to
the Founders’ solution: the convention process.8
The fi rst 20th century eff ort for a convention to
address federal overreach began in 1939, with a
drive to repeal the 16th Amendment.9 By 1950,
that drive had garnered the approval of 18 states.
Another drive induced Congress to propose the
22nd Amendment, mandating a two-term limit
for the President.
Early in the 1960s, the Council of
State Governments suggested three
amendments: one to streamline Article
V, one to reverse Supreme Court
decisions forcing state legislatures to reapportion,
and one to check the Supreme Court by adding
a state-based tribunal to review that Court’s
decisions. In the late 1960s, there was another,
nearly-successful, push for a convention to
address the Court’s reapportionment cases.
In 1979, the fi rst eff ort for a balanced
budget amendment began. Throughout
the next two decades there were
drives to overrule the Supreme
Court’s abortion ruling in Roe v.
Wade, to impose term limits
on members of
Congress, and to enact
other reforms. Some of these
movements enjoyed wide popular
support. The convention procedure was
endorsed by President Eisenhower, by President
Reagan, and (before he became a Supreme
Court Justice) by Antonin Scalia.10
Co
ng
re
ss
[sh
oul
d] r
etai
n co
ntrol
ove
r th
e c
on
ve
nt
io
n
pr
oc
es
s.
It
w
ill
pro
bab
ly b
e ar
gued
that
the v
oting
in a
ny c
onv
ent
ion
m
us
t b
e
by
s
ta
te
s,
sin
ce
th
e v
oti
ng
in
th
e o
rigi
nal C
onst
ituti
ona
l Co
nve
nti
on
wa
s b
y s
tat
es.
St
ate
le
gis
latu
res d
o not a
ccur
ate
ly
re
pr
es
en
t t
he
pe
opl
e of t
heir s
tate
s—t
ha
t a
m
ajo
rity
in
Ins
isten
ce wo
uld be t
horoughly ju
stified on an
alloca
tion o
f vo
ting
po
we
r
by
pop
ulat
ion r
ather
than by
states…to prev
ent racial a
nd oth
er di
scri
min
ati
on
.
N
o S
ena
tor or
Representative
is b
ou
nd
to
vo
te
for
a con
vention c
all
wh
ich
in
it
s f
or
m
fa
ils
to
sa
feg
uar
d
wh
at h
e bel
ieves to be vit
al nat
ion
al
int
ere
sts
.
If the P
resid
ent
be
lie
ve
d
th
e s
tru
ctu
re
and
ma
ndate
of the
“con
vent
ion”
sig
nif
ica
ntl
y w
ron
g,
a
nd d
an
ge
ro
us
to
th
e n
ati
ona
l we
ll-bei
ng, the
n he
wou
ld
su
re
ly
be
ju
sti
fie
d in
veto
ing the
Reso
lutio
n.
Charles Black, Yale law professor
and zealous defender of liberal
causes, penned a polemical article
in 1963 on the Article V process that
was lacking in history and case law.
If
all
th
is
ter
rai
n is
foug
ht over, t
hen the
Amer
ican
pe
op
le
wi
ll
su
rr
en
de
r t
hi
s u
lti
ma
te
po
we
r i
nt
o t
he
ha
nd
s o
f
a m
ino
rity
onl
y if t
hey wa
nt to, and
if the
y wa
nt
to
no
bo
dy
ca
n
st
op
th
em
.
5
6
CONVENTION OF STATES
THE RESPONSE FROM
THE ESTABLISHMENT:
COORDINATED
DISINFORMATION
During the 1950s, ’60s and ’70s, establishment
liberals were pleased with the growth of the
federal government and the activist Supreme
Court. They wanted no corrective amendments.
Rather, they felt threatened by conservative and
moderate eff orts to use the convention process.
Liberals developed, therefore, a campaign to
eff ectively disable it.
Their project was highly successful. It not
only gained traction among liberals, but it
pitted conservatives against conservatives by
persuading many of them to abandon one of the
Constitution’s most important checks on federal
overreaching. The campaign resulted in the
defeat of every eff ort to propose amendments
to reform or restrain the federal government.
Its psychological and political force continued
unabated for decades.11
The story begins in 1951. Faced with a conservative
drive to repeal the 16th Amendment, liberal U.S.
Rep. Wright Patman (D.-Tex.) attacked it
as “fascist” and “reactionary.” He added the
unsupported assertion that a convention for
proposing amendments could not be limited—
that it could “rewrite the whole Constitution.”12
The obvious goal behind that statement was to
scare people into thinking that the convention,
instead of focusing on a single amendment, might
eff ectively stage a coup d’état.
A more coordinated campaign against Article
V began in 1963, with an article in the Yale Law
Journal. It was authored by a law professor named
Charles Black, also of Yale, a zealous defender of
liberal causes and of the activism of the Supreme
Court, then led by Chief Justice Earl Warren. The
occasion for Black’s article was the amendment
proposal of the Council of State Governments.
Despite Black’s position as a professor at one of
the nation’s premier law schools—and despite the
nature of the journal that published it—Black’s
article was polemical rather than scholarly. You
can deduce its tenor from the title: The Proposed
Amendment of Article V: A Threatened Disaster.13
On its face, Black’s article was responding to
the Council of State Government’s proposals.
In fact, his propositions extended much further.
Black objected to the whole idea of the states
being allowed to overrule Congress or the
Supreme Court. So he off ered a wide-ranging
plan of constitutional obstruction. In a nutshell,
his position was as follows:
• The process enabled a tiny minority of the
American people to amend the Constitution
against the wishes of the majority, and
• if allowed to do so, the state legislatures might
radically rewrite the Constitution. They “could
change the presidency to a committee of three,
hobble the treaty power, make the federal
judiciary elective, repeal the fourth amendment,
Co
ng
re
ss
[sh
oul
d] r
etai
n co
ntrol
ove
r th
e c
on
ve
nt
io
n
pr
oc
es
s.
It
w
ill
pro
bab
ly b
e ar
gued
that
the v
oting
in a
ny c
onv
ent
ion
m
us
t b
e
by
s
ta
te
s,
sin
ce
th
e v
oti
ng
in
th
e o
rigi
nal C
onst
ituti
ona
l Co
nve
nti
on
wa
s b
y s
tat
es.
St
ate
le
gis
latu
res d
o not a
ccur
ate
ly
re
pr
es
en
t t
he
pe
opl
e of t
heir s
tate
s—t
ha
t a
m
ajo
rity
in
Ins
isten
ce wo
uld be t
horoughly ju
stified on an
alloca
tion o
f vo
ting
po
we
r
by
pop
ulat
ion r
ather
than by
states…to prev
ent racial a
nd oth
er di
scri
min
ati
on
.
N
o S
ena
tor or
Representative
is b
ou
nd
to
vo
te
for
a con
vention c
all
wh
ich
in
it
s f
or
m
fa
ils
to
sa
feg
uar
d
wh
at h
e bel
ieves to be vit
al nat
ion
al
int
ere
sts
.
If the P
resid
ent
be
lie
ve
d
th
e s
tru
ctu
re
and
ma
ndate
of the
“con
vent
ion”
sig
nif
ica
ntl
y w
ron
g,
a
nd d
an
ge
ro
us
to
th
e n
ati
ona
l we
ll-bei
ng, the
n he
wou
ld
su
re
ly
be
ju
sti
fie
d in
veto
ing the
Reso
lutio
n.
If
all
th
is
ter
rai
n is
foug
ht over, t
hen the
Amer
ican
pe
op
le
wi
ll
su
rr
en
de
r t
hi
s u
lti
ma
te
po
we
r i
nt
o t
he
ha
nd
s o
f
a m
ino
rity
onl
y if t
hey wa
nt to, and
if the
y wa
nt
to
no
bo
dy
ca
n
st
op
th
em
.
50
7
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
make Catholics ineligible for public offi ce, and
move the national capital to Topeka.”
To prevent such horrifi c developments, Black argued:
• that Congress should refuse to count state
legislative resolutions that did not comply with
standards he laid down;
• that “Congress [should] retain control over the
convention process,” and dictate allocation of
delegates and determine how they were selected; and
• that the President should veto any congressional
resolution calling a convention if the measure did
not meet Black’s standards.
It is clear to anyone familiar with the law and
history of Article V that Black did virtually no
research on the subject before putting pen to
paper. Not only did he make no reference to
the extensive American history of interstate
conventions, but he recited little of the case
law interpreting Article V. He also failed to
read carefully the Necessary and Proper
Clause, which actually grants Congress
no power over Article V conventions.14
Later the same year, William F.
Swindler, a law professor at the College
of William and Mary, published
an article in the Georgetown Law
Journal.15 Like Black’s contribution,
it was largely polemical and short on
history and case law.
Swindler claimed that the Council
of State Government’s proposed
amendments were “alarmingly regressive”
and would destroy the Constitution as we
know it: “For it is clear,” he wrote, “that the
eff ect of one or all of the proposals. . . would
be to extinguish the very essence of federalism
which distinguishes the Constitution from the
Articles of Confederation.” Like Black, Swindler
argued that Congress could and should control
the convention and impose obstacles to the
convention serving its constitutional purpose.
Indeed, Swindler went even further, maintaining
that because “only a federal agency (Congress,
as provided by the Constitution) is competent to
propose” amendments, the convention procedure
should be disregarded as “no longer of any eff ect.”
The placement of the Black and Swindler diatribes in
two of the nation’s top law journals can be explained
only by the authors’ institutional affi liations16 and/
or by the agenda harbored by the journals’ editors.
That placement enabled them to reach a wide
audience among the legal establishment.
Somewhat later, Chief Justice Warren, whose
judicial activism was one of the targets of the
Council of State Governments, mimicked Black
and Swindler with the absurd declaration that
“The
placement of
the Black and Swindler
diatribes in two of the nation’s
top law journals can be explained
only by the authors’ institutional
affi liations and/or by the agenda
harbored by the journals’ editors.
That placement enabled them to
reach a wide audience among
the legal establishment.”
8
CONVENTION OF STATES
its amendment drive “could soon destroy the
foundations of the Constitution.”17
When Senator Everett Dirksen (R.- Ill.) joined
the fi ght for an amendment partially reversing
the Warren Court’s reapportionment cases, his
liberal colleagues pushed back hard. Senators
Joseph Tydings (D.-Md) and Robert Kennedy
(D.-NY) followed Black’s lead and advanced
various “reasons” why Congress should
disregard state legislative resolutions it did not
care for.18 Senator William Proxmire (D.-Wis.)
and the liberal New York Republican, Senator
Jacob Javits pressed the claim that a convention
would be uncontrollable.19
Kennedy’s resistance was supplemented by other
opinion leaders associated with the Kennedy
clan. In 1967, Kennedy speech writer Theodore
Sorensen wrote a Saturday Review article in which
he repeated Black’s “minority will control the
process” argument. In congressional testimony
the same year, Sorensen speculated that an
Article V convention might “amend the Bill of
Rights . . . limit free speech . . . reopen the wars
between church and state . . . limit the Supreme
Court’s jurisdiction or the President’s veto power
or the congressional war-making authority.”20
In 1968, University of Michigan law professor
Paul G. Kauper contributed a piece to Michigan
Law Review that likewise displayed almost
complete disregard of Article V law and history.21
Kauper admitted that Congress could not refuse
to call a convention if 34 states applied for one.
But he asserted that “Congress has broad power
to fashion the ground rules for the calling of the
convention and to prescribe basic procedures
to be followed.” Kauper also stated that “The
national legislature is obviously the most
appropriate body for exercising a supervisory
authority. . .”—a conclusion in direct confl ict with
Chief Justice Earl Warren (center), later parroted Black and
Swindler with the absurd declaration that a convention “could
soon destroy the foundations of the Constitution.”
51
7
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
make Catholics ineligible for public offi ce, and
move the national capital to Topeka.”
To prevent such horrifi c developments, Black argued:
• that Congress should refuse to count state
legislative resolutions that did not comply with
standards he laid down;
• that “Congress [should] retain control over the
convention process,” and dictate allocation of
delegates and determine how they were selected; and
• that the President should veto any congressional
resolution calling a convention if the measure did
not meet Black’s standards.
It is clear to anyone familiar with the law and
history of Article V that Black did virtually no
research on the subject before putting pen to
paper. Not only did he make no reference to
the extensive American history of interstate
conventions, but he recited little of the case
law interpreting Article V. He also failed to
read carefully the Necessary and Proper
Clause, which actually grants Congress
no power over Article V conventions.14
Later the same year, William F.
Swindler, a law professor at the College
of William and Mary, published
an article in the Georgetown Law
Journal.15 Like Black’s contribution,
it was largely polemical and short on
history and case law.
Swindler claimed that the Council
of State Government’s proposed
amendments were “alarmingly regressive”
and would destroy the Constitution as we
know it: “For it is clear,” he wrote, “that the
eff ect of one or all of the proposals. . . would
be to extinguish the very essence of federalism
which distinguishes the Constitution from the
Articles of Confederation.” Like Black, Swindler
argued that Congress could and should control
the convention and impose obstacles to the
convention serving its constitutional purpose.
Indeed, Swindler went even further, maintaining
that because “only a federal agency (Congress,
as provided by the Constitution) is competent to
propose” amendments, the convention procedure
should be disregarded as “no longer of any eff ect.”
The placement of the Black and Swindler diatribes in
two of the nation’s top law journals can be explained
only by the authors’ institutional affi liations16 and/
or by the agenda harbored by the journals’ editors.
That placement enabled them to reach a wide
audience among the legal establishment.
Somewhat later, Chief Justice Warren, whose
judicial activism was one of the targets of the
Council of State Governments, mimicked Black
and Swindler with the absurd declaration that
“The
placement of
the Black and Swindler
diatribes in two of the nation’s
top law journals can be explained
only by the authors’ institutional
affi liations and/or by the agenda
harbored by the journals’ editors.
That placement enabled them to
reach a wide audience among
the legal establishment.”
8
CONVENTION OF STATES
its amendment drive “could soon destroy the
foundations of the Constitution.”17
When Senator Everett Dirksen (R.- Ill.) joined
the fi ght for an amendment partially reversing
the Warren Court’s reapportionment cases, his
liberal colleagues pushed back hard. Senators
Joseph Tydings (D.-Md) and Robert Kennedy
(D.-NY) followed Black’s lead and advanced
various “reasons” why Congress should
disregard state legislative resolutions it did not
care for.18 Senator William Proxmire (D.-Wis.)
and the liberal New York Republican, Senator
Jacob Javits pressed the claim that a convention
would be uncontrollable.19
Kennedy’s resistance was supplemented by other
opinion leaders associated with the Kennedy
clan. In 1967, Kennedy speech writer Theodore
Sorensen wrote a Saturday Review article in which
he repeated Black’s “minority will control the
process” argument. In congressional testimony
the same year, Sorensen speculated that an
Article V convention might “amend the Bill of
Rights . . . limit free speech . . . reopen the wars
between church and state . . . limit the Supreme
Court’s jurisdiction or the President’s veto power
or the congressional war-making authority.”20
In 1968, University of Michigan law professor
Paul G. Kauper contributed a piece to Michigan
Law Review that likewise displayed almost
complete disregard of Article V law and history.21
Kauper admitted that Congress could not refuse
to call a convention if 34 states applied for one.
But he asserted that “Congress has broad power
to fashion the ground rules for the calling of the
convention and to prescribe basic procedures
to be followed.” Kauper also stated that “The
national legislature is obviously the most
appropriate body for exercising a supervisory
authority. . .”—a conclusion in direct confl ict with
Chief Justice Earl Warren (center), later parroted Black and
Swindler with the absurd declaration that a convention “could
soon destroy the foundations of the Constitution.”
52
9
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
the convention’s fundamental purpose as a device
to bypass Congress. Kauper added that Congress
could mandate that delegates be elected one
from each congressional district, revealing his
disregard of the Supreme Court opinion and
other sources22 that specifi cally identifi ed the
gathering as a “convention of the states” rather
than a popular assembly.
In 1972, Black returned to the Yale Law Journal
to oppose what he termed the “national
calamity” threatened by a bill introduced in
Congress by Senator Sam Ervin (D.-N.C.).23
Ervin’s bill, while well intentioned, was almost
certainly unconstitutional because it was based
on an overly-expansive reading of the Necessary
and Proper Clause. But that was not Black’s
objection. Black’s objection was that the “bill
would make amendment far too easy.” Black
contended that the process permitted a minority
to force amendments on the majority, that state
legislatures should have no control over the
procedure, and that the President could veto the
congressional call.
Black’s 1972 article was characterized by the
same haste and lack of scholarly curiosity that
had characterized his 1963 piece. For example, in
defi ance of precedent he claimed that governors
should be permitted to veto state Article V
resolutions. He also misinterpreted the founding-
era phrase “general convention,” assuming it
meant a gathering unlimited by subject. A minimal
amount of research would have informed him that
a “general convention” was one that was national
rather than limited to states in a particular region.
Finally, in arguing that the convention could not be
limited, Black stated that all legislative resolutions
for a convention adopted during the Constitution’s
fi rst century were unlimited as to subject. This was
fl atly untrue, and could have been disproved be
simply examining the resolutions themselves.24
10
CONVENTION OF STATES
It is apparent that the goal of such writings was not to
disseminate truth but to protect Congress and the
Supreme Court from constitutional accountability
for their actions. The campaign was successful in
that it helped ensure the defeat of the eff orts to
propose a reapportionment amendment.25
In January, 1979, however, a new “national
calamity” threatened. The National Tax
Limitation Committee kicked off its drive for a
balanced budget amendment to limit somewhat
Congress’s bottomless line of credit. In response,
establishment spokesmen again resorted to the
same misinformation propagated in the 1960s.
Kennedy admirer and eulogist Richard Rovere
terrifi ed the readers of the New Yorker magazine
with the specter of a convention that might
reinstate segregation, and even slavery;
throw out all or much of the Bill of Rights
. . . eliminate the Fourteenth Amendment’s
due process clause and reverse any Supreme
Court decision the members didn’t like,
including the one-man-one-vote rule; and
perhaps for good measure, eliminate the
Supreme Court itself.26
(Rovere failed to explain how 38 states could be
induced to ratify such proposals.)
Opponents amplifi ed the histrionics by branding
the amendments convention with a diff erent,
and more frightening, name. Rather than refer
to it by the name given by the Constitution—
“Convention for proposing Amendments”—
opponents began to call it a “constitutional
convention.” This re-labeling reinforced the
mental image of a junta that would not merely
propose an amendment or two, but re-write our
entire Constitution.
Throughout American history,
conventions of states (and
before them, of colonies)
have been convened for
many different purposes. But
only two are referred to as
“constitutional conventions”
because only those two
proposed a complete remodeling
of the political system. The
federal convention of 1787, which
drafted the federal Constitution,
was one of those conventions.
53
9
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
the convention’s fundamental purpose as a device
to bypass Congress. Kauper added that Congress
could mandate that delegates be elected one
from each congressional district, revealing his
disregard of the Supreme Court opinion and
other sources22 that specifi cally identifi ed the
gathering as a “convention of the states” rather
than a popular assembly.
In 1972, Black returned to the Yale Law Journal
to oppose what he termed the “national
calamity” threatened by a bill introduced in
Congress by Senator Sam Ervin (D.-N.C.).23
Ervin’s bill, while well intentioned, was almost
certainly unconstitutional because it was based
on an overly-expansive reading of the Necessary
and Proper Clause. But that was not Black’s
objection. Black’s objection was that the “bill
would make amendment far too easy.” Black
contended that the process permitted a minority
to force amendments on the majority, that state
legislatures should have no control over the
procedure, and that the President could veto the
congressional call.
Black’s 1972 article was characterized by the
same haste and lack of scholarly curiosity that
had characterized his 1963 piece. For example, in
defi ance of precedent he claimed that governors
should be permitted to veto state Article V
resolutions. He also misinterpreted the founding-
era phrase “general convention,” assuming it
meant a gathering unlimited by subject. A minimal
amount of research would have informed him that
a “general convention” was one that was national
rather than limited to states in a particular region.
Finally, in arguing that the convention could not be
limited, Black stated that all legislative resolutions
for a convention adopted during the Constitution’s
fi rst century were unlimited as to subject. This was
fl atly untrue, and could have been disproved be
simply examining the resolutions themselves.24
10
CONVENTION OF STATES
It is apparent that the goal of such writings was not to
disseminate truth but to protect Congress and the
Supreme Court from constitutional accountability
for their actions. The campaign was successful in
that it helped ensure the defeat of the eff orts to
propose a reapportionment amendment.25
In January, 1979, however, a new “national
calamity” threatened. The National Tax
Limitation Committee kicked off its drive for a
balanced budget amendment to limit somewhat
Congress’s bottomless line of credit. In response,
establishment spokesmen again resorted to the
same misinformation propagated in the 1960s.
Kennedy admirer and eulogist Richard Rovere
terrifi ed the readers of the New Yorker magazine
with the specter of a convention that might
reinstate segregation, and even slavery;
throw out all or much of the Bill of Rights
. . . eliminate the Fourteenth Amendment’s
due process clause and reverse any Supreme
Court decision the members didn’t like,
including the one-man-one-vote rule; and
perhaps for good measure, eliminate the
Supreme Court itself.26
(Rovere failed to explain how 38 states could be
induced to ratify such proposals.)
Opponents amplifi ed the histrionics by branding
the amendments convention with a diff erent,
and more frightening, name. Rather than refer
to it by the name given by the Constitution—
“Convention for proposing Amendments”—
opponents began to call it a “constitutional
convention.” This re-labeling reinforced the
mental image of a junta that would not merely
propose an amendment or two, but re-write our
entire Constitution.
Throughout American history,
conventions of states (and
before them, of colonies)
have been convened for
many different purposes. But
only two are referred to as
“constitutional conventions”
because only those two
proposed a complete remodeling
of the political system. The
federal convention of 1787, which
drafted the federal Constitution,
was one of those conventions.
54
11
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
Some background may help explain the audacity
of this re-branding. Throughout American
history, conventions of states (and before them,
of colonies) have been convened for many
diff erent purposes. But only two are referred
to as “constitutional conventions” because only
those two proposed a complete remodeling of the
political system. They were the federal convention
of 1787, which drafted the federal Constitution,
and the 1861 Montgomery, Alabama gathering
that drafted the Confederate Constitution.
The other 30-plus interstate conventions were
summoned for more modest purposes. Among
these were four that gathered to propose
amendments or that did propose amendments:
(1) the Hartford Convention of 1780, which
recommended alteration of the Articles of
Confederation, (2) the Annapolis Convention
of 1786, called for the same purpose, (3) the
Hartford Convention of 1814, which promoted
several constitutional amendments, and (4) the
Washington Convention of 1861, which proposed
an amendment to stave off the Civil War. Although
not convened to Article V, these assemblies were
amendments conventions in every other respect.
Yet to my knowledge, none had ever been
referred to as a “constitutional convention.” They
were empowered only to suggest amendments,
not to write new constitutions. Through the re-
branding, however, Americans were encouraged
to believe that a mere amendments convention
was a constitutional convention.
Confusion between a “convention for proposing
amendments” and a constitutional convention
appears to be wholly a product of the 20th
century. I have found no 18th or 19th century
state resolutions, nor any reported 18th or
19th century state or federal court decision,27
referring to an amendments convention as a
“constitutional convention.” On the contrary,
the usual practice was to refer to a convention
for proposing amendments by its proper name or
as a “convention of the states” or by a variation
of the latter phrase. In other words, affi xing the
“con-con” label on an amendments convention
was an eff ort to alter English usage.
Where did the “dis-informants” get the idea of
changing the convention’s name? Perhaps they
were inspired by a misunderstanding arising
during the movement for direct election of U.S.
Senators, and the manner in which opponents of
direct election seized on that misunderstanding.
In 1901 a congressional compiler gave the
erroneous title “constitutional convention” to a
state legislative resolution, and after 1903, a few
resolutions actually used that term. The most
famous example of how opponents capitalized
on the confusion was a 1911 speech of Senator
Weldon B. Heyburn (R.-Idaho). Senator
Heyburn passionately opposed direct election, so
to dissuade states from demanding a convention,
he argued that:
When the constitutional convention meets
it is the people, and it is the same people
who made the original constitution, and no
limit on the original constitution controls
the people when they meet again to consider
the Constitution.28
The Heyburn view was not legally sound and
seems not to have been persuasive at the time.
By the following year the applying states were
only one shy of the then-necessary 32 (of
48). The demand for a convention abated only
because the U.S. Senate yielded, and Congress
itself proposed a direct election amendment.
But the mid-20th century disinformation
campaign did change public perceptions: Many
people came think that a convention for proposing
amendments was a “con-con.” Professor Black bore
some of the responsibility for this development as
well. In his 1972 polemic he repeatedly referred
to an amendments convention as a “constitutional
12
CONVENTION OF STATES
convention.” He had not used the term in that
way in his 1963 article.
There were many additional contributions to
the mislabeling campaign, particularly after the
balanced budget drive began in 1979. An essay
that year by Lawrence Tribe, a liberal Harvard
law professor and Kennedy ally, referred to an
amendments convention as a “constitutional
convention.”29 Tribe also asserted that such a
gathering would be an “uncharted course,” and
he issued a long list of questions about Article V
Jared Soares/Redux
PROF. LAWRENCE
TRIBE ISSUED A LONG
LIST OF QUESTIONS
ABOUT ARTICLE V
TO WHICH, HE SAID,
“GENUINE ANSWERS
SIMPLY DO NOT EXIST.”
ALTHOUGH NEARLY
ALL THOSE QUESTIONS
HAVE SINCE BEEN
ANSWERED, CONVENTION
OPPONENTS STILL
COMMONLY PRESENT
STATE LAWMAKERS
WITH VARIATIONS ON
PROFESSOR TRIBE’S LIST.
55
11
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
Some background may help explain the audacity
of this re-branding. Throughout American
history, conventions of states (and before them,
of colonies) have been convened for many
diff erent purposes. But only two are referred
to as “constitutional conventions” because only
those two proposed a complete remodeling of the
political system. They were the federal convention
of 1787, which drafted the federal Constitution,
and the 1861 Montgomery, Alabama gathering
that drafted the Confederate Constitution.
The other 30-plus interstate conventions were
summoned for more modest purposes. Among
these were four that gathered to propose
amendments or that did propose amendments:
(1) the Hartford Convention of 1780, which
recommended alteration of the Articles of
Confederation, (2) the Annapolis Convention
of 1786, called for the same purpose, (3) the
Hartford Convention of 1814, which promoted
several constitutional amendments, and (4) the
Washington Convention of 1861, which proposed
an amendment to stave off the Civil War. Although
not convened to Article V, these assemblies were
amendments conventions in every other respect.
Yet to my knowledge, none had ever been
referred to as a “constitutional convention.” They
were empowered only to suggest amendments,
not to write new constitutions. Through the re-
branding, however, Americans were encouraged
to believe that a mere amendments convention
was a constitutional convention.
Confusion between a “convention for proposing
amendments” and a constitutional convention
appears to be wholly a product of the 20th
century. I have found no 18th or 19th century
state resolutions, nor any reported 18th or
19th century state or federal court decision,27
referring to an amendments convention as a
“constitutional convention.” On the contrary,
the usual practice was to refer to a convention
for proposing amendments by its proper name or
as a “convention of the states” or by a variation
of the latter phrase. In other words, affi xing the
“con-con” label on an amendments convention
was an eff ort to alter English usage.
Where did the “dis-informants” get the idea of
changing the convention’s name? Perhaps they
were inspired by a misunderstanding arising
during the movement for direct election of U.S.
Senators, and the manner in which opponents of
direct election seized on that misunderstanding.
In 1901 a congressional compiler gave the
erroneous title “constitutional convention” to a
state legislative resolution, and after 1903, a few
resolutions actually used that term. The most
famous example of how opponents capitalized
on the confusion was a 1911 speech of Senator
Weldon B. Heyburn (R.-Idaho). Senator
Heyburn passionately opposed direct election, so
to dissuade states from demanding a convention,
he argued that:
When the constitutional convention meets
it is the people, and it is the same people
who made the original constitution, and no
limit on the original constitution controls
the people when they meet again to consider
the Constitution.28
The Heyburn view was not legally sound and
seems not to have been persuasive at the time.
By the following year the applying states were
only one shy of the then-necessary 32 (of
48). The demand for a convention abated only
because the U.S. Senate yielded, and Congress
itself proposed a direct election amendment.
But the mid-20th century disinformation
campaign did change public perceptions: Many
people came think that a convention for proposing
amendments was a “con-con.” Professor Black bore
some of the responsibility for this development as
well. In his 1972 polemic he repeatedly referred
to an amendments convention as a “constitutional
12
CONVENTION OF STATES
convention.” He had not used the term in that
way in his 1963 article.
There were many additional contributions to
the mislabeling campaign, particularly after the
balanced budget drive began in 1979. An essay
that year by Lawrence Tribe, a liberal Harvard
law professor and Kennedy ally, referred to an
amendments convention as a “constitutional
convention.”29 Tribe also asserted that such a
gathering would be an “uncharted course,” and
he issued a long list of questions about Article V
Jared Soares/Redux
PROF. LAWRENCE
TRIBE ISSUED A LONG
LIST OF QUESTIONS
ABOUT ARTICLE V
TO WHICH, HE SAID,
“GENUINE ANSWERS
SIMPLY DO NOT EXIST.”
ALTHOUGH NEARLY
ALL THOSE QUESTIONS
HAVE SINCE BEEN
ANSWERED, CONVENTION
OPPONENTS STILL
COMMONLY PRESENT
STATE LAWMAKERS
WITH VARIATIONS ON
PROFESSOR TRIBE’S LIST.
56
13
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
to which, he said, “genuine answers simply do not
exist.” Although nearly all those questions have
since been answered,30 convention opponents
still commonly present state lawmakers with
variations on Professor Tribe’s list.31
Gerald Gunther of Stanford University, yet
another liberal law professor, had clerked for Chief
Justice Earl Warren. Warren’s decisions had been,
of course, targets of some of the conservative
amendment drives. In 1979 Gunther published his
own tract branding an amendments convention
a “constitutional convention.”32 He further
asserted that the crusade for a balanced
budget amendment was “an exercise
in constitutional irresponsibility,”
and that the “convention
route promises uncertainty,
controversy, and divisiveness
at every turn.” Apparently
unaware of the Supreme Court’s
prior characterization of an
amendments convention as a
“convention of states,”
Gunther said the
assembly would be
popularly elected. While
claiming that “relevant
historical materials”
supported his arguments,
he off ered relatively little
history to support them.
Yet another assault on
Article V published in
1979 came from the
pen of Duke University
law professor Walter
E. Dellinger. Dellinger
had clerked for Justice
Hugo Black (not to be
confused with Professor
Charles Black), one
of the stalwarts of the
activist Earl Warren/Warren Burger Supreme
Court. Dellinger later served as acting solicitor
general in the Clinton administration. He also
labeled a convention for proposing amendments
a “constitutional convention.”33
Like other writers in this fi eld, Dellinger did little
original research but, like Charles Black, managed
to get his essay published in the Yale Law Journal.
Apparently the Journal was willing to compromise
its supposedly rigorous standards of scholarship
to accommodate such material. Like Charles
Black as well, Dellinger inaccurately
declared that all legislative resolutions
submitted during the Constitution’s
fi rst century were unlimited as to
subject and asserted that any
resolution imposing subject-
matter limits was invalid.34
The establishment’s war against
Article V continued throughout
the 1980s as its spokesmen resisted
popular pressure for a balanced
budget amendment and for
amendments overruling
the activist Supreme Court.
Arthur Goldberg was
another member of the
Kennedy circle: President
Kennedy had appointed
him successively as
Secretary of Labor and
Supreme Court Justice.
In a 1983 article he
labeled an amendments
convention a “constitutional
convention” and declared
that its agenda would be
uncontrollable.35 He also
quoted out of context
part of a 1788 letter
written by James Madison
Supreme Court Justice Arthur
Goldberg quoted out of context
a 1788 letter written by James
Madison, attempting to show that
Madison opposed the Article V
convention process. Madison actually
supported the use of Article V for a
convention of the states. This was a
clear misuse of historical material,
but some anti-Article V activists
still follow Goldberg’s lead today.
14
CONVENTION OF STATES
in which Madison opposed a contemporaneous
eff ort by two states to call a convention to
completely rewrite the new Constitution. The
quotation was out of context because Madison’s
letter criticized only that specifi c eff ort, not the
process generally— a process Madison actually
supported. This was a clear misuse of historical
material by Goldberg, but some anti-Article V
activists still follow Goldberg’s lead today.
In 1986, New Jersey Governor Thomas Kean, a
liberal Republican, wrote an article characterized
by the usual hysteria: A Constitutional
Convention Would Threaten the Rights We
have Cherished for 200 Years.36 As the title
indicates, Kean applied the phrase “constitutional
convention” to an amendments convention.
Relying on the same out-of-context letter cited
by Goldberg, Kean stoked the fear that such a
convention might “run away.”
The same year, Senator Paul Simon (D.-Ill.), one
of the most liberal members of Congress, called
the convention process “a very dangerous path.”37
Twice in 1986 and again in 1988, Chief Justice
Warren Burger—a participant in Roe v. Wade
and other cases that belied his prior reputation
as a “conservative”—wrote letters opposing
what he called a “constitutional convention.”
Burger claimed the gathering might disregard its
agenda. He based the latter speculation on the
frequent, although inaccurate, assertion that the
1787 gathering did the same. Burger off ered no
other support for his claims, and I have found
no evidence he ever researched the subject. He
certainly never published anything on it.
I believe Burger absorbed his anti-Article V views
from William F. Swindler. As mentioned earlier,
Swindler was the author of possibly the most
outrageous academic attack on the convention
process. Burger was a self-described personal
As the drive for a balanced budget amendment
started to grow in earnest in 1979, the liberal
establishment renewed efforts to push the
false “con-con” narrative about the
Article V amending process.
57
13
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
to which, he said, “genuine answers simply do not
exist.” Although nearly all those questions have
since been answered,30 convention opponents
still commonly present state lawmakers with
variations on Professor Tribe’s list.31
Gerald Gunther of Stanford University, yet
another liberal law professor, had clerked for Chief
Justice Earl Warren. Warren’s decisions had been,
of course, targets of some of the conservative
amendment drives. In 1979 Gunther published his
own tract branding an amendments convention
a “constitutional convention.”32 He further
asserted that the crusade for a balanced
budget amendment was “an exercise
in constitutional irresponsibility,”
and that the “convention
route promises uncertainty,
controversy, and divisiveness
at every turn.” Apparently
unaware of the Supreme Court’s
prior characterization of an
amendments convention as a
“convention of states,”
Gunther said the
assembly would be
popularly elected. While
claiming that “relevant
historical materials”
supported his arguments,
he off ered relatively little
history to support them.
Yet another assault on
Article V published in
1979 came from the
pen of Duke University
law professor Walter
E. Dellinger. Dellinger
had clerked for Justice
Hugo Black (not to be
confused with Professor
Charles Black), one
of the stalwarts of the
activist Earl Warren/Warren Burger Supreme
Court. Dellinger later served as acting solicitor
general in the Clinton administration. He also
labeled a convention for proposing amendments
a “constitutional convention.”33
Like other writers in this fi eld, Dellinger did little
original research but, like Charles Black, managed
to get his essay published in the Yale Law Journal.
Apparently the Journal was willing to compromise
its supposedly rigorous standards of scholarship
to accommodate such material. Like Charles
Black as well, Dellinger inaccurately
declared that all legislative resolutions
submitted during the Constitution’s
fi rst century were unlimited as to
subject and asserted that any
resolution imposing subject-
matter limits was invalid.34
The establishment’s war against
Article V continued throughout
the 1980s as its spokesmen resisted
popular pressure for a balanced
budget amendment and for
amendments overruling
the activist Supreme Court.
Arthur Goldberg was
another member of the
Kennedy circle: President
Kennedy had appointed
him successively as
Secretary of Labor and
Supreme Court Justice.
In a 1983 article he
labeled an amendments
convention a “constitutional
convention” and declared
that its agenda would be
uncontrollable.35 He also
quoted out of context
part of a 1788 letter
written by James Madison
Supreme Court Justice Arthur
Goldberg quoted out of context
a 1788 letter written by James
Madison, attempting to show that
Madison opposed the Article V
convention process. Madison actually
supported the use of Article V for a
convention of the states. This was a
clear misuse of historical material,
but some anti-Article V activists
still follow Goldberg’s lead today.
14
CONVENTION OF STATES
in which Madison opposed a contemporaneous
eff ort by two states to call a convention to
completely rewrite the new Constitution. The
quotation was out of context because Madison’s
letter criticized only that specifi c eff ort, not the
process generally— a process Madison actually
supported. This was a clear misuse of historical
material by Goldberg, but some anti-Article V
activists still follow Goldberg’s lead today.
In 1986, New Jersey Governor Thomas Kean, a
liberal Republican, wrote an article characterized
by the usual hysteria: A Constitutional
Convention Would Threaten the Rights We
have Cherished for 200 Years.36 As the title
indicates, Kean applied the phrase “constitutional
convention” to an amendments convention.
Relying on the same out-of-context letter cited
by Goldberg, Kean stoked the fear that such a
convention might “run away.”
The same year, Senator Paul Simon (D.-Ill.), one
of the most liberal members of Congress, called
the convention process “a very dangerous path.”37
Twice in 1986 and again in 1988, Chief Justice
Warren Burger—a participant in Roe v. Wade
and other cases that belied his prior reputation
as a “conservative”—wrote letters opposing
what he called a “constitutional convention.”
Burger claimed the gathering might disregard its
agenda. He based the latter speculation on the
frequent, although inaccurate, assertion that the
1787 gathering did the same. Burger off ered no
other support for his claims, and I have found
no evidence he ever researched the subject. He
certainly never published anything on it.
I believe Burger absorbed his anti-Article V views
from William F. Swindler. As mentioned earlier,
Swindler was the author of possibly the most
outrageous academic attack on the convention
process. Burger was a self-described personal
As the drive for a balanced budget amendment
started to grow in earnest in 1979, the liberal
establishment renewed efforts to push the
false “con-con” narrative about the
Article V amending process.
58
15
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
friend of Swindler and appointed him to two of
the Supreme Court’s advisory and administrative
committees.38 Burger apparently enjoyed
Swindler’s company, and upon Swindler’s death
Burger publicly eulogized him as “an analyst of
history and a historian of the fi rst rank.”39
THE TURNING POINT
In the years since 2010, research by this author
and other constitutional scholars has recaptured
the history and law governing the amendments
convention process. Arguments against that
process have lost credibility among many
conservatives40 and moderates and among some
honest progressives as well. This is refl ected in
a spate of formal state legislative demands for a
convention.41 As a result, establishment publicists
who previously could aff ord to remain quiet have
been forced to rally their own forces against the
movement for a convention.
Illustrative is a December 4, 2013 posting in
the Daily Kos, a left-wing website, which warns
of the “threat” of a convention and repeats the
Charles Black argument that it would represent
only a minority of the population.42 Illustrative
also is an op-ed column in the Washington
Post dated October 21, 2014. The column was
entitled, “A constitutional convention could be
the single most dangerous way to ‘fi x’ American
Progressives and right-wing groups such as the John Birch Society use the
same stock anti-convention of states arguments to spread disinformation
about the important constitutional check on the federal government.
16
CONVENTION OF STATES
government.”43 As the title suggests, the author
opposed a convention using rhetoric almost
precisely identical to that employed by groups
such as the John Birch Society.
The author was no Bircher, however, but
Robert Greenstein, a former member of the
Clinton administration and an Obama ally, who
heads an infl uential left-wing policy center in
Washington, D.C. reportedly funded by socialist
fi nancier George Soros.44 For reasons explained
in this paper, the similarity between Greenstein’s
argument and those of misguided conservative
groups is not accidental.
The identity of interest among left-wing and right-
wing opponents emerged in sharp relief during a
recent Montana legislative session. On February
2, 2015, a spokeswoman for the Montana
Budget and Policy Center, a “progressive” state
policy group with ties to Greenstein’s think tank,
sent an e-mail to Democratic lawmakers advising
them on how to defeat a proposed balanced
budget resolution. The spokeswoman’s “Topline
Message” (suggested talking points) closely
mirrored those of conservative opponents and
of Greenstein, including the use of the “con-
con” label. She further told Democratic state
lawmakers, “We strongly urge committee
members to AVOID talking about a balanced
budget amendment, instead focusing on the
lack of certainty in calling a convention.” She
suggested that liberal lawmakers direct questions
to John Birch Society lobbyists who would make
the liberals’ arguments for them.45
CONCLUSION
When conservatives and moderates use
the stock anti-convention arguments,
they merely repeat disinformation
injected into American political life by their political
opponents. The purpose of this disinformation was
to weaken or disable an important constitutional
check on the federal government.
In recent years, the inaccuracies spread in that
campaign have been corrected. Accordingly, many
conservative and moderate convention opponents
have become supporters. Groups that persist in
spreading misinformation have lost credibility.
To shore up the anti-convention position, therefore,
spokespeople for the liberal establishment are
now reemerging to rally their own allies with the
same stock arguments. Conservatives, moderates,
and responsible progressives should hold them
accountable for doing so.
Notes
1Robert G. Natelson, the Senior Fellow in Constitutional
Jurisprudence at the Independence Institute in Denver, was
a law professor for 25 years at three diff erent universities.
He has written extensively on the Constitution for both the
scholarly and popular markets, and since 2013 has been cited
increasingly at the U.S. Supreme Court, both by parties and
by justices. He is the nation’s most published active scholar
on the amendment process, and heads the Institute’s Article
V Information Center. For a biography and bibliography, see
http://constitution.i2i.org/about.
2The Lamp of Experience: Constitutional Amendments
Work, http://constitution.i2i.org/2014/03/09/thelamp-of-
experience-constitutionalamendments-work/
3U.S. Const., art. I, § 8, cl. 18.
4For a survey of the law of Article V, see Robert G. Natelson,
A Treatise on the Law of Amendment Conventions: State
Initiation of Constitutional Amendments: A Guide for
Lawyers and Legislative Drafters (2014).
59
15
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
friend of Swindler and appointed him to two of
the Supreme Court’s advisory and administrative
committees.38 Burger apparently enjoyed
Swindler’s company, and upon Swindler’s death
Burger publicly eulogized him as “an analyst of
history and a historian of the fi rst rank.”39
THE TURNING POINT
In the years since 2010, research by this author
and other constitutional scholars has recaptured
the history and law governing the amendments
convention process. Arguments against that
process have lost credibility among many
conservatives40 and moderates and among some
honest progressives as well. This is refl ected in
a spate of formal state legislative demands for a
convention.41 As a result, establishment publicists
who previously could aff ord to remain quiet have
been forced to rally their own forces against the
movement for a convention.
Illustrative is a December 4, 2013 posting in
the Daily Kos, a left-wing website, which warns
of the “threat” of a convention and repeats the
Charles Black argument that it would represent
only a minority of the population.42 Illustrative
also is an op-ed column in the Washington
Post dated October 21, 2014. The column was
entitled, “A constitutional convention could be
the single most dangerous way to ‘fi x’ American
Progressives and right-wing groups such as the John Birch Society use the
same stock anti-convention of states arguments to spread disinformation
about the important constitutional check on the federal government.
16
CONVENTION OF STATES
government.”43 As the title suggests, the author
opposed a convention using rhetoric almost
precisely identical to that employed by groups
such as the John Birch Society.
The author was no Bircher, however, but
Robert Greenstein, a former member of the
Clinton administration and an Obama ally, who
heads an infl uential left-wing policy center in
Washington, D.C. reportedly funded by socialist
fi nancier George Soros.44 For reasons explained
in this paper, the similarity between Greenstein’s
argument and those of misguided conservative
groups is not accidental.
The identity of interest among left-wing and right-
wing opponents emerged in sharp relief during a
recent Montana legislative session. On February
2, 2015, a spokeswoman for the Montana
Budget and Policy Center, a “progressive” state
policy group with ties to Greenstein’s think tank,
sent an e-mail to Democratic lawmakers advising
them on how to defeat a proposed balanced
budget resolution. The spokeswoman’s “Topline
Message” (suggested talking points) closely
mirrored those of conservative opponents and
of Greenstein, including the use of the “con-
con” label. She further told Democratic state
lawmakers, “We strongly urge committee
members to AVOID talking about a balanced
budget amendment, instead focusing on the
lack of certainty in calling a convention.” She
suggested that liberal lawmakers direct questions
to John Birch Society lobbyists who would make
the liberals’ arguments for them.45
CONCLUSION
When conservatives and moderates use
the stock anti-convention arguments,
they merely repeat disinformation
injected into American political life by their political
opponents. The purpose of this disinformation was
to weaken or disable an important constitutional
check on the federal government.
In recent years, the inaccuracies spread in that
campaign have been corrected. Accordingly, many
conservative and moderate convention opponents
have become supporters. Groups that persist in
spreading misinformation have lost credibility.
To shore up the anti-convention position, therefore,
spokespeople for the liberal establishment are
now reemerging to rally their own allies with the
same stock arguments. Conservatives, moderates,
and responsible progressives should hold them
accountable for doing so.
Notes
1Robert G. Natelson, the Senior Fellow in Constitutional
Jurisprudence at the Independence Institute in Denver, was
a law professor for 25 years at three diff erent universities.
He has written extensively on the Constitution for both the
scholarly and popular markets, and since 2013 has been cited
increasingly at the U.S. Supreme Court, both by parties and
by justices. He is the nation’s most published active scholar
on the amendment process, and heads the Institute’s Article
V Information Center. For a biography and bibliography, see
http://constitution.i2i.org/about.
2The Lamp of Experience: Constitutional Amendments
Work, http://constitution.i2i.org/2014/03/09/thelamp-of-
experience-constitutionalamendments-work/
3U.S. Const., art. I, § 8, cl. 18.
4For a survey of the law of Article V, see Robert G. Natelson,
A Treatise on the Law of Amendment Conventions: State
Initiation of Constitutional Amendments: A Guide for
Lawyers and Legislative Drafters (2014).
60
17
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
5“A Friend of Society and Liberty,” Pa. Gazette, Jul.
23, 1788, reprinted in 18 Documentary History of the
Ratifi cation of the Constitution of the United States, 277,
283. Coxe’s writings were at least as infl uential with the
general public as The Federalist Papers. He was a member
of Congress and Pennsylvania’s delegate to the Annapolis
convention, and the fi rst Assistant Secretary of the Treasury.
By a “general convention,” Coxe meant a national rather
than a regional gathering.
6Robert G. Natelson, Founding-Era Conventions and the
Meaning of the Constitution’s “Convention for Proposing
Amendments,” 65 Fla. L. Rev. 615 (2013).
7Id.
8Liberals occasionally crusaded for amendments as well, but
by and large their clout in Congress, the bureaucracy, and the
courts was suffi cient for their purposes.
9Philip L. Martin, The Application Clause of Article Five, 85
Pol. Sci. Q. 615, 623 (1970).
The Sixteenth Amendment did not, as some say, authorize the
federal income tax; it merely dropped the requirement that
federal income tax revenues be apportioned among the states
by population.
10Russell L. Caplan, Constitutional Brinksmanship (Oxford
Univ. Press 1988) [hereinafter “Caplan”], 74 (Eisenhower),
85 (Reagan), 71 (Scalia). There are reports that Scalia
changed his position after ascending to the Court.
11The disinformation has lost credibility in the last few
years, as explained below. In 1992, reformers did success
in obtaining ratifi cation of the 27th amendment, limiting
congressional pay raises, but that amendment had been
proposed in 1789 as part of the Bill of Rights.
12Caplan, p.69.
13Charles L. Black, Jr., The Proposed Amendment of Article
V: A Threatened Disaster, 72 Yale L.J. 957 (1963). Black
engaged in similar histrionics in the title of another article:
Proposed Constitutional Amendments: They Would Return
Us to a Confederacy, 49 A.B.A J. 637 (1963).
14By its terms, the Necessary and Proper Clause applies
to the 17 preceding powers in Article I, Section 8 and to
powers granted to the government of the United States and
to “Offi cers” and “Departments.” A convention fi ts none of
those categories. See The Constitution’s Grants to Persons
and Entities Outside the Federal Government, http://
constitution.i2i.org/2014/12/18/theconstitutions-grants-
to-persons-andentities-outside-the-u-s-government/ and
No, the Necessary and Proper Clause Does NOT Empower
Congress to Control an Amendments Convention, http://
constitution.i2i.org/2014/08/23/n o-the-necessary-and-
proper-clause-doesnot-empower-congress-to-control-
anamendments-convention/.
15William F. Swindler, The Current Challenge to Federalism:
The Confederating Proposals, 52 Geo. L. J. 1 (1963)
16The overwhelming majority of law reviews are student-
edited. Because students are often unable to judge the quality
of articles submitted to them, the relative prestige of the
author’s academic institution is infl uential in the decision of
whether to accept a submission. This is an open secret among
law professors and supported by empirical research. Jonathan
Gingerich, A Call for Blind Review: Student Edited Law
Reviews and Bias, 59 J. Legal Educ. 269 (2009).
17Caplan, p. 74.
18Caplan, pp. 75-76
19Caplan, p. 76. Javits was liberal not just for a Republican,
but (like some of his GOP colleagues at the time) liberal in
an absolute sense. His voting record was regularly marked as
above 80% by the left-of-center Americans for Democratic
Action.
20Caplan, p. 147. See below for other comments by associates
and allies of the Kennedy clan.
21Paul G. Kauper, The Alternate Amendment Process: Some
Observations, 66 Mich. L. Rev. 903 (1968).
22Smith v. Union Bank, 30 U.S. 518, 528 (1831). For
other sources, see http://constitution.i2i.org/2014/03/28/
howdo-we-know-an-article-v-amendmentsconvention-is-
a-%E2%80%9Cconventionof-the-states%E2%80%9D-
because-boththe-founders-and-the-supreme-court-saidso/
23Charles L. Black, Jr., Amending the Constitution: A Letter
to a Congressman, 82 Yale L.J. 189 (1972)
24The 1832 resolution of Georgia and the 1833 resolution
of Alabama were both limited as to subject. The 1788
Virginia resolution and the 1864 Oregon resolution were
18
CONVENTION OF STATES
both arguably limited. Robert G. Natelson, Amending
the Constitution by Convention: Lessons for Today from
the Constitution’s First Century, 3, 5 & 7 (Independence
Institute, 2011), available at http://liberty.i2i.org/
fi les/2012/03/IP_5_20 11_c.pdf
25Martin, p. 628.
26Caplan, p. Viii.
27According to the Westlaw database.
28Caplan, p. 64.
29Lawrence H. Tribe, Issues Raised by Requesting Congress
to Call a Constitutional Convention to Propose a Balanced
Budget Amendment, 10 Pac.L.J. 627 (1979).
30Robert G. Natelson, The Article V Handbook 33-35 (2d
ed., 2013).
31See, e.g., http://www.eagleforum.org/alert/2011/pdf/
20Questions.pdf.
32Gerald Gunther, The Convention Method of Amending the
United States Constitution, 14 Ga. L. Rev. 1 (1979).
33Walter E. Dellinger, The Recurring Question of the
“Limited” Constitutional Convention, 88 Yale L.J. 1623
(1979).
34To give due credit: Four years later Dellinger also published
an article correctly pointing out that Article V issues were
justiciable in court. Walter E. Dellinger, The Legitimacy of
Constitutional Change: Rethinking the Amendment Process,
97 Harv. L. Rev 386 (1983)
35Arthur J. Goldberg, The Proposed Constitutional
Convention, 11 Hastings Const. L. Q. 1 (1983).
36Thomas H. Kean, A Constitutional Convention Would
Threaten the Rights We have Cherished for 200 Years, 1986
Det. C.L. Rev. 1087 (1986)
37Caplan, p. 85.
38Warren Burger, William F. Swindler: A Tribute from the
Chief Justice of the United States, 20 Wm. & Mary L.J. 595
(1979).
39William F. Swindler, 70, Dies; Scholar of U.S. Constitution,
New York Times, May 7, 1984, available at http://www.
nytimes.com/1984/05/08/obitu aries/william-f-swindler-70-
dies-scholarof-us-constitution.html.
40One example of support for a convention by conservative
and libertarian legal scholars and opinion leaders, including
some former skeptics, is the “Jeff erson Statement,” http://
www.conventionofstates.com/the_jef ferson_statement.
41For a scorecard of recent developments, see https://www.
facebook.com/pages/FixWashington-By-Calling-an-Article-
VAmendmentsConvention/598865556818994.
42http://www.dailykos.com/story/2013/12/0
4/1260066/-Alert-Art-V-ConventionThreat-Grows-Dec-7-
2013-Assembly.
43http://www.washingtonpost.com/posteverything///
wp/2014/10/21/a-constitutionalconvention-could-be-the-
single-mostdangerous-way-to-fi x-americangovernment/.
44http://sorosfi les.com/soros/2011/10/center -on-budget-
and-policy-priorities.html.
45The email can be read at http://constitution.i2i.org/
fi les/2015/03/OL oughlin-email.pdf. The language quoted
here was underscored for emphasis.
61
17
THE LIBERAL ESTABLISHMENT’S DISINFORMATION CAMPAIGN AGAINST ARTICLE V—AND HOW IT MISLED CONSERVATIVES
5“A Friend of Society and Liberty,” Pa. Gazette, Jul.
23, 1788, reprinted in 18 Documentary History of the
Ratifi cation of the Constitution of the United States, 277,
283. Coxe’s writings were at least as infl uential with the
general public as The Federalist Papers. He was a member
of Congress and Pennsylvania’s delegate to the Annapolis
convention, and the fi rst Assistant Secretary of the Treasury.
By a “general convention,” Coxe meant a national rather
than a regional gathering.
6Robert G. Natelson, Founding-Era Conventions and the
Meaning of the Constitution’s “Convention for Proposing
Amendments,” 65 Fla. L. Rev. 615 (2013).
7Id.
8Liberals occasionally crusaded for amendments as well, but
by and large their clout in Congress, the bureaucracy, and the
courts was suffi cient for their purposes.
9Philip L. Martin, The Application Clause of Article Five, 85
Pol. Sci. Q. 615, 623 (1970).
The Sixteenth Amendment did not, as some say, authorize the
federal income tax; it merely dropped the requirement that
federal income tax revenues be apportioned among the states
by population.
10Russell L. Caplan, Constitutional Brinksmanship (Oxford
Univ. Press 1988) [hereinafter “Caplan”], 74 (Eisenhower),
85 (Reagan), 71 (Scalia). There are reports that Scalia
changed his position after ascending to the Court.
11The disinformation has lost credibility in the last few
years, as explained below. In 1992, reformers did success
in obtaining ratifi cation of the 27th amendment, limiting
congressional pay raises, but that amendment had been
proposed in 1789 as part of the Bill of Rights.
12Caplan, p.69.
13Charles L. Black, Jr., The Proposed Amendment of Article
V: A Threatened Disaster, 72 Yale L.J. 957 (1963). Black
engaged in similar histrionics in the title of another article:
Proposed Constitutional Amendments: They Would Return
Us to a Confederacy, 49 A.B.A J. 637 (1963).
14By its terms, the Necessary and Proper Clause applies
to the 17 preceding powers in Article I, Section 8 and to
powers granted to the government of the United States and
to “Offi cers” and “Departments.” A convention fi ts none of
those categories. See The Constitution’s Grants to Persons
and Entities Outside the Federal Government, http://
constitution.i2i.org/2014/12/18/theconstitutions-grants-
to-persons-andentities-outside-the-u-s-government/ and
No, the Necessary and Proper Clause Does NOT Empower
Congress to Control an Amendments Convention, http://
constitution.i2i.org/2014/08/23/n o-the-necessary-and-
proper-clause-doesnot-empower-congress-to-control-
anamendments-convention/.
15William F. Swindler, The Current Challenge to Federalism:
The Confederating Proposals, 52 Geo. L. J. 1 (1963)
16The overwhelming majority of law reviews are student-
edited. Because students are often unable to judge the quality
of articles submitted to them, the relative prestige of the
author’s academic institution is infl uential in the decision of
whether to accept a submission. This is an open secret among
law professors and supported by empirical research. Jonathan
Gingerich, A Call for Blind Review: Student Edited Law
Reviews and Bias, 59 J. Legal Educ. 269 (2009).
17Caplan, p. 74.
18Caplan, pp. 75-76
19Caplan, p. 76. Javits was liberal not just for a Republican,
but (like some of his GOP colleagues at the time) liberal in
an absolute sense. His voting record was regularly marked as
above 80% by the left-of-center Americans for Democratic
Action.
20Caplan, p. 147. See below for other comments by associates
and allies of the Kennedy clan.
21Paul G. Kauper, The Alternate Amendment Process: Some
Observations, 66 Mich. L. Rev. 903 (1968).
22Smith v. Union Bank, 30 U.S. 518, 528 (1831). For
other sources, see http://constitution.i2i.org/2014/03/28/
howdo-we-know-an-article-v-amendmentsconvention-is-
a-%E2%80%9Cconventionof-the-states%E2%80%9D-
because-boththe-founders-and-the-supreme-court-saidso/
23Charles L. Black, Jr., Amending the Constitution: A Letter
to a Congressman, 82 Yale L.J. 189 (1972)
24The 1832 resolution of Georgia and the 1833 resolution
of Alabama were both limited as to subject. The 1788
Virginia resolution and the 1864 Oregon resolution were
18
CONVENTION OF STATES
both arguably limited. Robert G. Natelson, Amending
the Constitution by Convention: Lessons for Today from
the Constitution’s First Century, 3, 5 & 7 (Independence
Institute, 2011), available at http://liberty.i2i.org/
fi les/2012/03/IP_5_20 11_c.pdf
25Martin, p. 628.
26Caplan, p. Viii.
27According to the Westlaw database.
28Caplan, p. 64.
29Lawrence H. Tribe, Issues Raised by Requesting Congress
to Call a Constitutional Convention to Propose a Balanced
Budget Amendment, 10 Pac.L.J. 627 (1979).
30Robert G. Natelson, The Article V Handbook 33-35 (2d
ed., 2013).
31See, e.g., http://www.eagleforum.org/alert/2011/pdf/
20Questions.pdf.
32Gerald Gunther, The Convention Method of Amending the
United States Constitution, 14 Ga. L. Rev. 1 (1979).
33Walter E. Dellinger, The Recurring Question of the
“Limited” Constitutional Convention, 88 Yale L.J. 1623
(1979).
34To give due credit: Four years later Dellinger also published
an article correctly pointing out that Article V issues were
justiciable in court. Walter E. Dellinger, The Legitimacy of
Constitutional Change: Rethinking the Amendment Process,
97 Harv. L. Rev 386 (1983)
35Arthur J. Goldberg, The Proposed Constitutional
Convention, 11 Hastings Const. L. Q. 1 (1983).
36Thomas H. Kean, A Constitutional Convention Would
Threaten the Rights We have Cherished for 200 Years, 1986
Det. C.L. Rev. 1087 (1986)
37Caplan, p. 85.
38Warren Burger, William F. Swindler: A Tribute from the
Chief Justice of the United States, 20 Wm. & Mary L.J. 595
(1979).
39William F. Swindler, 70, Dies; Scholar of U.S. Constitution,
New York Times, May 7, 1984, available at http://www.
nytimes.com/1984/05/08/obitu aries/william-f-swindler-70-
dies-scholarof-us-constitution.html.
40One example of support for a convention by conservative
and libertarian legal scholars and opinion leaders, including
some former skeptics, is the “Jeff erson Statement,” http://
www.conventionofstates.com/the_jef ferson_statement.
41For a scorecard of recent developments, see https://www.
facebook.com/pages/FixWashington-By-Calling-an-Article-
VAmendmentsConvention/598865556818994.
42http://www.dailykos.com/story/2013/12/0
4/1260066/-Alert-Art-V-ConventionThreat-Grows-Dec-7-
2013-Assembly.
43http://www.washingtonpost.com/posteverything///
wp/2014/10/21/a-constitutionalconvention-could-be-the-
single-mostdangerous-way-to-fi x-americangovernment/.
44http://sorosfi les.com/soros/2011/10/center -on-budget-
and-policy-priorities.html.
45The email can be read at http://constitution.i2i.org/
fi les/2015/03/OL oughlin-email.pdf. The language quoted
here was underscored for emphasis.
62
This page is intentionally left blank
HARVARD JOURNAL
of
LAW & PUBLIC POLICY
VOLUME 40, NUMBER 1
APRIL 2017
POVERTY, INEQUALITY, AND THE LAW
THE 35TH ANNUAL FEDERALIST SOCIETY
NATIONAL STUDENT SYNOPSIS HIM ON LAW AND PUBLIC POLICY—2016
ARTICLES
DEFYING CONVENTIONAL WISDOM:
THE CONSTITUTION WAS NOT THE PRODUCT OF A RUNAWAY CONVENTION
Michael Farris
DELEGATION RECONSIDERED:
A DELEGATION DOCTRINE FOR THE MODERN ADMINISTRATIVE STATE
Ronald A. Cass
“CAN ARTIFICIAL BEING”:
JOHN MARSHALL AND CORPORATE PERSONHOOD
Christopher J. Wolfe
ESSAY
A PROPOSAL TO RECONSTRUCT THE CLEMENCY PROCESS —
THE VICE PRESIDENT AS HEAD OF A WHITE HOUSE, CLEMENCY OFFICE
Paul J. Larkin, Jr.
Ilya Somin
Clint C. Bolick
Julia D. Mohoney
John C. Eastman
Yaron Brook
Jason Scott Johnston
Robert Woodson
63
HARVARD JOURNAL
of
LAW & PUBLIC POLICY
VOLUME 40, NUMBER 1
APRIL 2017
POVERTY, INEQUALITY, AND THE LAW
THE 35TH ANNUAL FEDERALIST SOCIETY
NATIONAL STUDENT SYNOPSIS HIM ON LAW AND PUBLIC POLICY—2016
ARTICLES
DEFYING CONVENTIONAL WISDOM:
THE CONSTITUTION WAS NOT THE PRODUCT OF A RUNAWAY CONVENTION
Michael Farris
DELEGATION RECONSIDERED:
A DELEGATION DOCTRINE FOR THE MODERN ADMINISTRATIVE STATE
Ronald A. Cass
“CAN ARTIFICIAL BEING”:
JOHN MARSHALL AND CORPORATE PERSONHOOD
Christopher J. Wolfe
ESSAY
A PROPOSAL TO RECONSTRUCT THE CLEMENCY PROCESS —
THE VICE PRESIDENT AS HEAD OF A WHITE HOUSE, CLEMENCY OFFICE
Paul J. Larkin, Jr.
Ilya Somin
Clint C. Bolick
Julia D. Mohoney
John C. Eastman
Yaron Brook
Jason Scott Johnston
Robert Woodson
64
DEFYING CONVENTIONAL WISDOM: THE
CONSTITUTION WAS NOT THE PRODUCT OF A
RUNAWAY CONVENTION
MICHAEL FARRIS*
INTRODUCTION …………………………………………………….. 63
I. DID THE CONVENTION DELEGATES EXCEED
THEIR AUTHORITY? …………………………………………. 67
A. The Call of the Convention ………………………. 67
1. The States Begin the Official Process ….. 70
2. Machinations in New York …………………. 73
3. Congress Responds to the Annapolis
Convention Report …………………………….. 74
4. The Six Remaining States Appoint
Delegates ……………………………………………. 77
B. Arguments about Delegates’ Authority at
the Constitutional Convention …………………. 80
C. Debates in the Confederation Congress ……. 86
D. Debates in the State Ratification
Convention Process ………………………………….. 88
1. There was a General Consensus that
the States, Not Congress Called the
Convention ………………………………………… 88
2. Who gave the delegates their
instructions? ……………………………………….. 90
a. Anti-Federalist Views …………………… 91
b. Federalist Views …………………………… 94
3. Was the Convention unlawful from
the beginning? ……………………………………. 97
4. The “Runaway Convention” theory
* J.D. 1976, Gonzaga University, LL.M. 2011, University of London, (Public In-
ternational Law). Farris is the President, CEO, and General Counsel of Alliance
Defending Freedom and Chancellor Emeritus at Patrick Henry College.
This page is intentionally left blank
DEFYING CONVENTIONAL WISDOM: THE
CONSTITUTION WAS NOT THE PRODUCT OF A
RUNAWAY CONVENTION
MICHAEL FARRIS*
INTRODUCTION …………………………………………………….. 63
I. DID THE CONVENTION DELEGATES EXCEED
THEIR AUTHORITY? …………………………………………. 67
A. The Call of the Convention ………………………. 67
1. The States Begin the Official Process ….. 70
2. Machinations in New York …………………. 73
3. Congress Responds to the Annapolis
Convention Report …………………………….. 74
4. The Six Remaining States Appoint
Delegates ……………………………………………. 77
B. Arguments about Delegates’ Authority at
the Constitutional Convention …………………. 80
C. Debates in the Confederation Congress ……. 86
D. Debates in the State Ratification
Convention Process ………………………………….. 88
1. There was a General Consensus that
the States, Not Congress Called the
Convention ………………………………………… 88
2. Who gave the delegates their
instructions? ……………………………………….. 90
a. Anti-Federalist Views …………………… 91
b. Federalist Views …………………………… 94
3. Was the Convention unlawful from
the beginning? ……………………………………. 97
4. The “Runaway Convention” theory
* J.D. 1976, Gonzaga University, LL.M. 2011, University of London, (Public
ternational Law). Farris is the President, CEO, and General Counsel of Alliance
Defending Freedom and Chancellor Emeritus at Patrick Henry College.
65
DEFYING CONVENTIONAL WISDOM: THE
CONSTITUTION WAS NOT THE PRODUCT OF A
RUNAWAY CONVENTION
MICHAEL FARRIS*
INTRODUCTION …………………………………………………….. 63
I. DID THE CONVENTION DELEGATES EXCEED
THEIR AUTHORITY? …………………………………………. 67
A. The Call of the Convention ………………………. 67
1. The States Begin the Official Process ….. 70
2. Machinations in New York …………………. 73
3. Congress Responds to the Annapolis
Convention Report …………………………….. 74
4. The Six Remaining States Appoint
Delegates ……………………………………………. 77
B. Arguments about Delegates’ Authority at
the Constitutional Convention …………………. 80
C. Debates in the Confederation Congress ……. 86
D. Debates in the State Ratification
Convention Process ………………………………….. 88
1. There was a General Consensus that
the States, Not Congress Called the
Convention ………………………………………… 88
2. Who gave the delegates their
instructions? ……………………………………….. 90
a. Anti-Federalist Views …………………… 91
b. Federalist Views …………………………… 94
3. Was the Convention unlawful from
the beginning? ……………………………………. 97
4. The “Runaway Convention” theory
* J.D. 1976, Gonzaga University, LL.M. 2011, University of London, (Public In-
ternational Law). Farris is the President, CEO, and General Counsel of Alliance
Defending Freedom and Chancellor Emeritus at Patrick Henry College.
DEFYING CONVENTIONAL WISDOM: THE
CONSTITUTION WAS NOT THE PRODUCT OF A
RUNAWAY CONVENTION
MICHAEL FARRIS*
INTRODUCTION …………………………………………………….. 63
I. DID THE CONVENTION DELEGATES EXCEED
THEIR AUTHORITY? …………………………………………. 67
A. The Call of the Convention ………………………. 67
1. The States Begin the Official Process ….. 70
2. Machinations in New York …………………. 73
3. Congress Responds to the Annapolis
Convention Report …………………………….. 74
4. The Six Remaining States Appoint
Delegates ……………………………………………. 77
B. Arguments about Delegates’ Authority at
the Constitutional Convention …………………. 80
C. Debates in the Confederation Congress ……. 86
D. Debates in the State Ratification
Convention Process ………………………………….. 88
1. There was a General Consensus that
the States, Not Congress Called the
Convention ………………………………………… 88
2. Who gave the delegates their
instructions? ……………………………………….. 90
a. Anti-Federalist Views …………………… 91
b. Federalist Views …………………………… 94
3. Was the Convention unlawful from
the beginning? ……………………………………. 97
4. The “Runaway Convention” theory
* J.D. 1976, Gonzaga University, LL.M. 2011, University of London, (Public
ternational Law). Farris is the President, CEO, and General Counsel of Alliance
Defending Freedom and Chancellor Emeritus at Patrick Henry College.
66
No. 1]
Defying Conventional Wisdom 63
INTRODUCTION
The Constitution stands at the pinnacle of our legal and po-
litical system as the “supreme Law of the Land,”1 but it is far
more important than just a set of rules. We do not take oaths to
defend our nation, our government, or our leaders. Our ulti-
mate oath of loyalty affirms that we “will to the best of [our]
Ability, preserve, protect and defend the Constitution of the
United States.”2 Each president, every member of the Supreme
Court, legislators in both houses of Congress, all members of
the military, countless state and federal officials, all new citi-
zens, and all members of the legal profession pledge our honor
and duty to defend this document.
Despite this formal and symbolic profession of devotion, many
leaders, lawyers, and citizens repeat the apparently inconsistent
claim that the Constitution was illegally adopted by a runaway
convention. In the words of former Chief Justice Warren Burger,
the Constitution’s Framers “didn’t pay much attention to any lim-
itations on their mandate.”3 The oft-repeated claim is that the
Constitutional Convention was called by the Confederation Con-
gress “for the sole and express purpose of revising the Articles of
Confederation.”4 However, “the Convention departed from the
mission that Congress had given it. The Convention did not simp-
ly draft ‘alterations’ for the Articles of Confederation as amend-
ments. Instead, it proposed an entirely new Constitution to re-
place the Articles of Confederation.”5
Critics also assert that the Founders’ illegal behavior extend-
ed into the ratification process. “The Convention did not ask
Congress or the state legislatures to approve the proposed
Constitution. Instead, perhaps fearing delay and possible de-
1. U.S. CONST. art. VI, cl. 2.
2. Id. art. II, § 1, cl. 8; see also id. art. VI, cl. 3.
3. Warren Burger, Remarks at the Fifth Annual Judicial Conference of the Unit-
ed States Court of Appeals for the Fifth Circuit (May 8, 1987), in 119 F.R.D. 45, 79.
4. Resolution of Confederation Congress (February 21, 1787), reprinted in 1 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 185, 187
(John P. Kaminski et al. eds., 2009) [hereinafter DHRC].
5. Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional
Convention of 1787 As A Source of the Original Meaning of the U.S. Constitution, 80
GEO. WASH. L. REV. 1707, 1711 (2012).
62
Harvard Journal of Law & Public Policy
[Vol. 40
was tested and rejected ………………………. 99
II. WAS THE CONSTITUTION PROPERLY RATIFIED? . 101
A. The Source of Law for Ratification
Authority ……………………………………………….. 102
B. The Constitutional Convention’s
Development of the Plan for Ratification… 103
C. Debates in the Confederation Congress ….. 112
D. Thirteen Legislatures Approve the New
Process……………………………………………………. 114
III. MOST MODERN SCHOLARSHIP FAILS TO
CONSIDER THE ACTUAL PROCESS EMPLOYED IN
ADOPTING THE CONSTITUTION ………………………. 119
A. Most Scholarly References to the Legality
of the Adoption of the Constitution are
Superficial and Conclusory …………………….. 119
B. Answering Ackerman and Katyal ………….. 125
1. The Contention that the Whole
Process Was Illegal under the Articles
of Confederation May Be Summarily
Dismissed …………………………………………. 129
2. Conspiracy Theories and Character
Attacks: Exploring the Legality of the
Delegates’ Conduct …………………………… 134
a. The Call ………………………………………. 134
b. The Delegates’ Authority ……………. 136
c. The Delaware Claim …………………… 139
3. The Legality of the Ratification
Process ……………………………………………… 140
a. Article XIII ………………………………….. 140
b. State Constitutions ……………………… 142
4. The Professors’ Real Agenda …………….. 144
IV. CONCLUSION ………………………………………………… 146
No. 1]
Defying Conventional Wisdom
INTRODUCTION
The Constitution stands at the pinnacle of our legal and po
litical system as the “supreme Law of the Land,”1 but it is f
more important than just a set of rules. We do not take oaths to
defend our nation, our government, or our leaders. Our ulti-
mate oath of loyalty affirms that we “will to the best of [our
Ability, preserve, protect and defend the Constitution of the
United States.”2 Each president, every member of the Suprem
Court, legislators in both houses of Congress, all members
the military, countless state and federal officials, all new c
zens, and all members of the legal profession pledge our honor
and duty to defend this document.
Despite this formal and symbolic profession of devotion, many
leaders, lawyers, and citizens repeat the apparently inconsiste
claim that the Constitution was illegally adopted by a runaway
convention. In the words of former Chief Justice Warren Burge
the Constitution’s Framers “didn’t pay much attention to any li
itations on their mandate.”3 The oft-repeated claim is that t
Constitutional Convention was called by the Confederation Co
gress “for the sole and express purpose of revising the Articles
Confederation.”4 However, “the Convention departed from
mission that Congress had given it. The Convention did not simp-
ly draft ‘alterations’ for the Articles of Confederation as amen
ments. Instead, it proposed an entirely new Constitution to re-
place the Articles of Confederation.”5
Critics also assert that the Founders’ illegal behavior exten
ed into the ratification process. “The Convention did not a
Congress or the state legislatures to approve the proposed
Constitution. Instead, perhaps fearing delay and possible de-
1. U.S. CONST. art. VI, cl. 2.
2. Id. art. II, § 1, cl. 8; see also id. art. VI, cl. 3.
3. Warren Burger, Remarks at the Fifth Annual Judicial Conference of the Unit-
ed States Court of Appeals for the Fifth Circuit (May 8, 1987), in 119 F.R.D. 45, 79.
4. Resolution of Confederation Congress (February 21, 1787), reprinted in 1 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 185, 187
(John P. Kaminski et al. eds., 2009) [hereinafter DHRC].
5. Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutiona
Convention of 1787 As A Source of the Original Meaning of the U.S. Constitutio
GEO. WASH. L. REV. 1707, 1711 (2012).
62
Harvard Journal of Law & Public Policy
[Vol. 40
was tested and rejected ………………………. 99
II. WAS THE CONSTITUTION PROPERLY RATIFIED? . 101
A. The Source of Law for Ratification
Authority ……………………………………………….. 102
B. The Constitutional Convention’s
Development of the Plan for Ratification… 103
C. Debates in the Confederation Congress ….. 112
D. Thirteen Legislatures Approve the New
Process……………………………………………………. 114
III. MOST MODERN SCHOLARSHIP FAILS TO
CONSIDER THE ACTUAL PROCESS EMPLOYED IN
ADOPTING THE CONSTITUTION ………………………. 119
A. Most Scholarly References to the Legality
of the Adoption of the Constitution are
Superficial and Conclusory …………………….. 119
B. Answering Ackerman and Katyal ………….. 125
1. The Contention that the Whole
Process Was Illegal under the Articles
of Confederation May Be Summarily
Dismissed …………………………………………. 129
2. Conspiracy Theories and Character
Attacks: Exploring the Legality of the
Delegates’ Conduct …………………………… 134
a. The Call ………………………………………. 134
b. The Delegates’ Authority ……………. 136
c. The Delaware Claim …………………… 139
3. The Legality of the Ratification
Process ……………………………………………… 140
a. Article XIII ………………………………….. 140
b. State Constitutions ……………………… 142
4. The Professors’ Real Agenda …………….. 144
IV. CONCLUSION ………………………………………………… 146
67
No. 1]
Defying Conventional Wisdom 63
INTRODUCTION
The Constitution stands at the pinnacle of our legal and po-
litical system as the “supreme Law of the Land,”1 but it is far
more important than just a set of rules. We do not take oaths to
defend our nation, our government, or our leaders. Our ulti-
mate oath of loyalty affirms that we “will to the best of [our]
Ability, preserve, protect and defend the Constitution of the
United States.”2 Each president, every member of the Supreme
Court, legislators in both houses of Congress, all members of
the military, countless state and federal officials, all new citi-
zens, and all members of the legal profession pledge our honor
and duty to defend this document.
Despite this formal and symbolic profession of devotion, many
leaders, lawyers, and citizens repeat the apparently inconsistent
claim that the Constitution was illegally adopted by a runaway
convention. In the words of former Chief Justice Warren Burger,
the Constitution’s Framers “didn’t pay much attention to any lim-
itations on their mandate.”3 The oft-repeated claim is that the
Constitutional Convention was called by the Confederation Con-
gress “for the sole and express purpose of revising the Articles of
Confederation.”4 However, “the Convention departed from the
mission that Congress had given it. The Convention did not simp-
ly draft ‘alterations’ for the Articles of Confederation as amend-
ments. Instead, it proposed an entirely new Constitution to re-
place the Articles of Confederation.”5
Critics also assert that the Founders’ illegal behavior extend-
ed into the ratification process. “The Convention did not ask
Congress or the state legislatures to approve the proposed
Constitution. Instead, perhaps fearing delay and possible de-
1. U.S. CONST. art. VI, cl. 2.
2. Id. art. II, § 1, cl. 8; see also id. art. VI, cl. 3.
3. Warren Burger, Remarks at the Fifth Annual Judicial Conference of the Unit-
ed States Court of Appeals for the Fifth Circuit (May 8, 1987), in 119 F.R.D. 45, 79.
4. Resolution of Confederation Congress (February 21, 1787), reprinted in 1 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 185, 187
(John P. Kaminski et al. eds., 2009) [hereinafter DHRC].
5. Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional
Convention of 1787 As A Source of the Original Meaning of the U.S. Constitution, 80
GEO. WASH. L. REV. 1707, 1711 (2012).
62
Harvard Journal of Law & Public Policy
[Vol. 40
was tested and rejected ………………………. 99
II. WAS THE CONSTITUTION PROPERLY RATIFIED? . 101
A. The Source of Law for Ratification
Authority ……………………………………………….. 102
B. The Constitutional Convention’s
Development of the Plan for Ratification… 103
C. Debates in the Confederation Congress ….. 112
D. Thirteen Legislatures Approve the New
Process……………………………………………………. 114
III. MOST MODERN SCHOLARSHIP FAILS TO
CONSIDER THE ACTUAL PROCESS EMPLOYED IN
ADOPTING THE CONSTITUTION ………………………. 119
A. Most Scholarly References to the Legality
of the Adoption of the Constitution are
Superficial and Conclusory …………………….. 119
B. Answering Ackerman and Katyal ………….. 125
1. The Contention that the Whole
Process Was Illegal under the Articles
of Confederation May Be Summarily
Dismissed …………………………………………. 129
2. Conspiracy Theories and Character
Attacks: Exploring the Legality of the
Delegates’ Conduct …………………………… 134
a. The Call ………………………………………. 134
b. The Delegates’ Authority ……………. 136
c. The Delaware Claim …………………… 139
3. The Legality of the Ratification
Process ……………………………………………… 140
a. Article XIII ………………………………….. 140
b. State Constitutions ……………………… 142
4. The Professors’ Real Agenda …………….. 144
IV. CONCLUSION ………………………………………………… 146
No. 1]
Defying Conventional Wisdom
INTRODUCTION
The Constitution stands at the pinnacle of our legal and po
litical system as the “supreme Law of the Land,”1 but it is f
more important than just a set of rules. We do not take oaths to
defend our nation, our government, or our leaders. Our ulti-
mate oath of loyalty affirms that we “will to the best of [our
Ability, preserve, protect and defend the Constitution of the
United States.”2 Each president, every member of the Suprem
Court, legislators in both houses of Congress, all members
the military, countless state and federal officials, all new c
zens, and all members of the legal profession pledge our honor
and duty to defend this document.
Despite this formal and symbolic profession of devotion, many
leaders, lawyers, and citizens repeat the apparently inconsiste
claim that the Constitution was illegally adopted by a runaway
convention. In the words of former Chief Justice Warren Burge
the Constitution’s Framers “didn’t pay much attention to any li
itations on their mandate.”3 The oft-repeated claim is that t
Constitutional Convention was called by the Confederation Co
gress “for the sole and express purpose of revising the Articles
Confederation.”4 However, “the Convention departed from
mission that Congress had given it. The Convention did not simp-
ly draft ‘alterations’ for the Articles of Confederation as amen
ments. Instead, it proposed an entirely new Constitution to re-
place the Articles of Confederation.”5
Critics also assert that the Founders’ illegal behavior exten
ed into the ratification process. “The Convention did not a
Congress or the state legislatures to approve the proposed
Constitution. Instead, perhaps fearing delay and possible de-
1. U.S. CONST. art. VI, cl. 2.
2. Id. art. II, § 1, cl. 8; see also id. art. VI, cl. 3.
3. Warren Burger, Remarks at the Fifth Annual Judicial Conference of the Unit-
ed States Court of Appeals for the Fifth Circuit (May 8, 1987), in 119 F.R.D. 45, 79.
4. Resolution of Confederation Congress (February 21, 1787), reprinted in 1 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 185, 187
(John P. Kaminski et al. eds., 2009) [hereinafter DHRC].
5. Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutiona
Convention of 1787 As A Source of the Original Meaning of the U.S. Constitutio
GEO. WASH. L. REV. 1707, 1711 (2012).
62
Harvard Journal of Law & Public Policy
[Vol. 40
was tested and rejected ………………………. 99
II. WAS THE CONSTITUTION PROPERLY RATIFIED? . 101
A. The Source of Law for Ratification
Authority ……………………………………………….. 102
B. The Constitutional Convention’s
Development of the Plan for Ratification… 103
C. Debates in the Confederation Congress ….. 112
D. Thirteen Legislatures Approve the New
Process……………………………………………………. 114
III. MOST MODERN SCHOLARSHIP FAILS TO
CONSIDER THE ACTUAL PROCESS EMPLOYED IN
ADOPTING THE CONSTITUTION ………………………. 119
A. Most Scholarly References to the Legality
of the Adoption of the Constitution are
Superficial and Conclusory …………………….. 119
B. Answering Ackerman and Katyal ………….. 125
1. The Contention that the Whole
Process Was Illegal under the Articles
of Confederation May Be Summarily
Dismissed …………………………………………. 129
2. Conspiracy Theories and Character
Attacks: Exploring the Legality of the
Delegates’ Conduct …………………………… 134
a. The Call ………………………………………. 134
b. The Delegates’ Authority ……………. 136
c. The Delaware Claim …………………… 139
3. The Legality of the Ratification
Process ……………………………………………… 140
a. Article XIII ………………………………….. 140
b. State Constitutions ……………………… 142
4. The Professors’ Real Agenda …………….. 144
IV. CONCLUSION ………………………………………………… 146
68
No. 1]
Defying Conventional Wisdom 65
ample of Orwellian “double-think.” Our belief that the Constitu-
tion is Supreme Law deserving respect and oaths of allegiance is
utterly inconsistent with the notion that it was crafted by an illegal
convention and ratified by an unsanctioned process that bordered
on treason.
As we will see, the scholarship on this issue is inadequate.
Only two articles have been dedicated to developing the ar-
gument that the Constitution was illegally adopted by revo-
lutionary action.14 Nearly all other scholarly references to the
illegality of the adoption of the Constitution consist of either
brief discussions or naked assertions.15 Professors Bruce
Ackerman and Neal Katyal argue that the illegality of the
Consitution justifies the constitutional “revolutions” of Re-
construction and twentieth-century judicial activism.16
Despite the widespread belief that the Constitutional Con-
vention delegates viewed their instructions as mere sugges-
tions which could be ignored with impunity, the historical rec-
ord paints a different picture. In Federalist No. 78, Alexander
Hamilton underlined the importance of acting within one’s au-
thority: “There is no position which depends on clearer princi-
ples, than that every act of a delegated authority, contrary to
the tenor of the commission under which it is exercised, is
void.”17 And in Federalist No. 40, James Madison had already
answered the charge that the Convention delegates had ex-
ceeded their commissions.18
Understanding the lawfulness of the adoption of the Consti-
tution is not merely of historical interest. State appellate courts
have cited the allegedly unauthorized acts of the delegates as
14. Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62. U. CHI. L.
REV. 475 (1995); Richard S. Kay, The Illegality of the Constitution, 4 CONST. COM-
MENT
. 57 (1987).
15. See, e.g., John C. Godbold, “Lawyer”—A Title of Honor, 29 CUMB. L. REV. 301,
314 (1999); Kurt T. Lash, The Constitutional Convention of 1937: The Original Mean-
ing of the New Jurisprudential Deal, 70 FORDHAM L. REV. 459, 523 (2001); L. Scott
Smith, From Promised Land to Tower of Babel: Religious Pluralism and the Future of the
Liberal Experiment in America, 45 BRANDEIS L.J. 527, 539–40 (2007); Lindsay K.
Jonker, Note, Learning from the Past: How the Events That Shaped the Constitutions of
the United States and Germany Play Out in the Abortion Controversy, 23 REGENT U. L.
REV. 447, 453–54 (2011).
16. Ackerman & Katyal, supra note 14, at 476.
17. THE FEDERALIST NO. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
18. THE FEDERALIST NO. 40 (James Madison).
64
Harvard Journal of Law & Public Policy
[Vol. 40
feat, the Convention called for separate ratifying conventions
to be held in each state.”6
These criticisms are not new. Many of the Anti-Federalist op-
ponents of the Constitution unleashed a string of vile invectives
aimed at the architects of this “outrageous violation.”7 The Fram-
ers employed “all the arts of insinuation, and influence, to betray
the people of the United States.”8 “[T]hat vile conspirator, the au-
thor of Publius: I think he might be impeached for high treason.”9
The Constitution itself was treated to similar opprobrium:
Upon the whole I look upon the new system as a most ri-
diculous piece of business—something (entre nouz) like
the legs of Nebuchadnezar’s image: It seems to have been
formed by jumbling or compressing a number of ideas to-
gether, something like the manner in which poems were
made in Swift’s flying Island.10
Modern legal writers level critiques that are equally harsh, albe-
it with less colorful language. One author contends that James
Madison led the delegates “[i]n what might be termed a bloodless
coup.”11 Another suggests that the intentional violation of their
limited mandate “could likely have led to the participants being
found guilty of treason in the event that their proceedings were
publicized or unsuccessful.”12 Ironically, Chief Justice Burger’s
critique of the legality of the Constitution was delivered in his ca-
pacity as Chairman of the National Commission on the Bicenten-
nial of the Constitution of the United States.13 This is a classic ex-
6. Id.
7.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1157.
8. A COLUMBIAN PATRIOT: OBSERVATIONS ON THE CONSTITUTION (1788), reprint-
ed in 16 DHRC, supra note 4, at 272, 277.
9. Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 15 DHRC, supra
note 4, at 399, 402.
10. Letter from William Grayson to William Short (Nov. 10, 1787), reprinted in 1
DHRC, supra note 4, at 150, 151.
11. Paul Finkelman, The First American Constitutions: State and Federal, 59 TEXAS
L. REV. 1141, 1162 n.43 (1981) (reviewing WILLI PAUL ADAMS, THE FIRST AMERI-
CAN
CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE
CONSTITUTIONS IN THE REVOLUTIONARY ERA (1980) and WILLIAM WINSLOW
CROSSKEY & WILLIAM JEFFREY, POLITICS AND THE CONSTITUTION IN THE HISTORY
OF THE
UNITED STATES (1980)).
12. Brian Kane, Idaho’s Open Meetings Act: Government’s Guarantee of Openness or
the Toothless Promise?, 44 IDAHO L. REV. 135, 137 (2007).
13. Burger, Remarks, supra note 3, at 77.
No. 1]
Defying Conventional Wisdom
ample of Orwellian “double-think.” Our belief that the Consti
tion is Supreme Law deserving respect and oaths of allegiance is
utterly inconsistent with the notion that it was crafted by an illegal
convention and ratified by an unsanctioned process that border
on treason.
As we will see, the scholarship on this issue is inadequat
Only two articles have been dedicated to developing the ar-
gument that the Constitution was illegally adopted by revo-
lutionary action.14 Nearly all other scholarly references to th
illegality of the adoption of the Constitution consist of eithe
brief discussions or naked assertions.15 Professors Bru
Ackerman and Neal Katyal argue that the illegality of the
Consitution justifies the constitutional “revolutions” of Re-
construction and twentieth-century judicial activism.16
Despite the widespread belief that the Constitutional Con-
vention delegates viewed their instructions as mere sugges-
tions which could be ignored with impunity, the historical rec-
ord paints a different picture. In Federalist No. 78, Alexand
Hamilton underlined the importance of acting within one’s au-
thority: “There is no position which depends on clearer prin
ples, than that every act of a delegated authority, contrary to
the tenor of the commission under which it is exercised,
void.”17 And in Federalist No. 40, James Madison had alrea
answered the charge that the Convention delegates had e
ceeded their commissions.18
Understanding the lawfulness of the adoption of the Consti-
tution is not merely of historical interest. State appellate courts
have cited the allegedly unauthorized acts of the delegates as
14. Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62. U. CHI.
REV. 475 (1995); Richard S. Kay, The Illegality of the Constitution, 4 CONST. COM-
MENT
. 57 (1987).
15. See, e.g., John C. Godbold, “Lawyer”—A Title of Honor, 29 CUMB. L. REV. 30
314 (1999); Kurt T. Lash, The Constitutional Convention of 1937: The Original Mean-
ing of the New Jurisprudential Deal, 70 FORDHAM L. REV. 459, 523 (2001); L. Scott
Smith, From Promised Land to Tower of Babel: Religious Pluralism and the Future of the
Liberal Experiment in America, 45 BRANDEIS L.J. 527, 539–40 (2007); Lindsay
Jonker, Note, Learning from the Past: How the Events That Shaped the Constitutions of
the United States and Germany Play Out in the Abortion Controversy, 23 REGENT U.
REV. 447, 453–54 (2011).
16. Ackerman & Katyal, supra note 14, at 476.
17. THE FEDERALIST NO. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
18. THE FEDERALIST NO. 40 (James Madison).
64
Harvard Journal of Law & Public Policy
[Vol. 40
feat, the Convention called for separate ratifying conventions
to be held in each state.”6
These criticisms are not new. Many of the Anti-Federalist op-
ponents of the Constitution unleashed a string of vile invectives
aimed at the architects of this “outrageous violation.”7 The Fram-
ers employed “all the arts of insinuation, and influence, to betray
the people of the United States.”8 “[T]hat vile conspirator, the au-
thor of Publius: I think he might be impeached for high treason.”9
The Constitution itself was treated to similar opprobrium:
Upon the whole I look upon the new system as a most ri-
diculous piece of business—something (entre nouz) like
the legs of Nebuchadnezar’s image: It seems to have been
formed by jumbling or compressing a number of ideas to-
gether, something like the manner in which poems were
made in Swift’s flying Island.10
Modern legal writers level critiques that are equally harsh, albe-
it with less colorful language. One author contends that James
Madison led the delegates “[i]n what might be termed a bloodless
coup.”11 Another suggests that the intentional violation of their
limited mandate “could likely have led to the participants being
found guilty of treason in the event that their proceedings were
publicized or unsuccessful.”12 Ironically, Chief Justice Burger’s
critique of the legality of the Constitution was delivered in his ca-
pacity as Chairman of the National Commission on the Bicenten-
nial of the Constitution of the United States.13 This is a classic ex-
6. Id.
7.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1157.
8. A COLUMBIAN PATRIOT: OBSERVATIONS ON THE CONSTITUTION (1788), reprint-
ed in 16 DHRC, supra note 4, at 272, 277.
9. Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 15 DHRC, supra
note 4, at 399, 402.
10. Letter from William Grayson to William Short (Nov. 10, 1787), reprinted in 1
DHRC, supra note 4, at 150, 151.
11. Paul Finkelman, The First American Constitutions: State and Federal, 59 TEXAS
L. REV. 1141, 1162 n.43 (1981) (reviewing WILLI PAUL ADAMS, THE FIRST AMERI-
CAN
CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE
CONSTITUTIONS IN THE REVOLUTIONARY ERA (1980) and WILLIAM WINSLOW
CROSSKEY & WILLIAM JEFFREY, POLITICS AND THE CONSTITUTION IN THE HISTORY
OF THE
UNITED STATES (1980)).
12. Brian Kane, Idaho’s Open Meetings Act: Government’s Guarantee of Openness or
the Toothless Promise?, 44 IDAHO L. REV. 135, 137 (2007).
13. Burger, Remarks, supra note 3, at 77.
69
No. 1]
Defying Conventional Wisdom 65
ample of Orwellian “double-think.” Our belief that the Constitu-
tion is Supreme Law deserving respect and oaths of allegiance is
utterly inconsistent with the notion that it was crafted by an illegal
convention and ratified by an unsanctioned process that bordered
on treason.
As we will see, the scholarship on this issue is inadequate.
Only two articles have been dedicated to developing the ar-
gument that the Constitution was illegally adopted by revo-
lutionary action.14 Nearly all other scholarly references to the
illegality of the adoption of the Constitution consist of either
brief discussions or naked assertions.15 Professors Bruce
Ackerman and Neal Katyal argue that the illegality of the
Consitution justifies the constitutional “revolutions” of Re-
construction and twentieth-century judicial activism.16
Despite the widespread belief that the Constitutional Con-
vention delegates viewed their instructions as mere sugges-
tions which could be ignored with impunity, the historical rec-
ord paints a different picture. In Federalist No. 78, Alexander
Hamilton underlined the importance of acting within one’s au-
thority: “There is no position which depends on clearer princi-
ples, than that every act of a delegated authority, contrary to
the tenor of the commission under which it is exercised, is
void.”17 And in Federalist No. 40, James Madison had already
answered the charge that the Convention delegates had ex-
ceeded their commissions.18
Understanding the lawfulness of the adoption of the Consti-
tution is not merely of historical interest. State appellate courts
have cited the allegedly unauthorized acts of the delegates as
14. Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62. U. CHI. L.
REV. 475 (1995); Richard S. Kay, The Illegality of the Constitution, 4 CONST. COM-
MENT
. 57 (1987).
15. See, e.g., John C. Godbold, “Lawyer”—A Title of Honor, 29 CUMB. L. REV. 301,
314 (1999); Kurt T. Lash, The Constitutional Convention of 1937: The Original Mean-
ing of the New Jurisprudential Deal, 70 FORDHAM L. REV. 459, 523 (2001); L. Scott
Smith, From Promised Land to Tower of Babel: Religious Pluralism and the Future of the
Liberal Experiment in America, 45 BRANDEIS L.J. 527, 539–40 (2007); Lindsay K.
Jonker, Note, Learning from the Past: How the Events That Shaped the Constitutions of
the United States and Germany Play Out in the Abortion Controversy, 23 REGENT U. L.
REV. 447, 453–54 (2011).
16. Ackerman & Katyal, supra note 14, at 476.
17. THE FEDERALIST NO. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
18. THE FEDERALIST NO. 40 (James Madison).
64
Harvard Journal of Law & Public Policy
[Vol. 40
feat, the Convention called for separate ratifying conventions
to be held in each state.”6
These criticisms are not new. Many of the Anti-Federalist op-
ponents of the Constitution unleashed a string of vile invectives
aimed at the architects of this “outrageous violation.”7 The Fram-
ers employed “all the arts of insinuation, and influence, to betray
the people of the United States.”8 “[T]hat vile conspirator, the au-
thor of Publius: I think he might be impeached for high treason.”9
The Constitution itself was treated to similar opprobrium:
Upon the whole I look upon the new system as a most ri-
diculous piece of business—something (entre nouz) like
the legs of Nebuchadnezar’s image: It seems to have been
formed by jumbling or compressing a number of ideas to-
gether, something like the manner in which poems were
made in Swift’s flying Island.10
Modern legal writers level critiques that are equally harsh, albe-
it with less colorful language. One author contends that James
Madison led the delegates “[i]n what might be termed a bloodless
coup.”11 Another suggests that the intentional violation of their
limited mandate “could likely have led to the participants being
found guilty of treason in the event that their proceedings were
publicized or unsuccessful.”12 Ironically, Chief Justice Burger’s
critique of the legality of the Constitution was delivered in his ca-
pacity as Chairman of the National Commission on the Bicenten-
nial of the Constitution of the United States.13 This is a classic ex-
6. Id.
7.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1157.
8. A COLUMBIAN PATRIOT: OBSERVATIONS ON THE CONSTITUTION (1788), reprint-
ed in 16 DHRC, supra note 4, at 272, 277.
9. Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 15 DHRC, supra
note 4, at 399, 402.
10. Letter from William Grayson to William Short (Nov. 10, 1787), reprinted in 1
DHRC, supra note 4, at 150, 151.
11. Paul Finkelman, The First American Constitutions: State and Federal, 59 TEXAS
L. REV. 1141, 1162 n.43 (1981) (reviewing WILLI PAUL ADAMS, THE FIRST AMERI-
CAN
CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE
CONSTITUTIONS IN THE REVOLUTIONARY ERA (1980) and WILLIAM WINSLOW
CROSSKEY & WILLIAM JEFFREY, POLITICS AND THE CONSTITUTION IN THE HISTORY
OF THE
UNITED STATES (1980)).
12. Brian Kane, Idaho’s Open Meetings Act: Government’s Guarantee of Openness or
the Toothless Promise?, 44 IDAHO L. REV. 135, 137 (2007).
13. Burger, Remarks, supra note 3, at 77.
No. 1]
Defying Conventional Wisdom
ample of Orwellian “double-think.” Our belief that the Consti
tion is Supreme Law deserving respect and oaths of allegiance is
utterly inconsistent with the notion that it was crafted by an illegal
convention and ratified by an unsanctioned process that border
on treason.
As we will see, the scholarship on this issue is inadequat
Only two articles have been dedicated to developing the ar-
gument that the Constitution was illegally adopted by revo-
lutionary action.14 Nearly all other scholarly references to th
illegality of the adoption of the Constitution consist of eithe
brief discussions or naked assertions.15 Professors Bru
Ackerman and Neal Katyal argue that the illegality of the
Consitution justifies the constitutional “revolutions” of Re-
construction and twentieth-century judicial activism.16
Despite the widespread belief that the Constitutional Con-
vention delegates viewed their instructions as mere sugges-
tions which could be ignored with impunity, the historical rec-
ord paints a different picture. In Federalist No. 78, Alexand
Hamilton underlined the importance of acting within one’s au-
thority: “There is no position which depends on clearer prin
ples, than that every act of a delegated authority, contrary to
the tenor of the commission under which it is exercised,
void.”17 And in Federalist No. 40, James Madison had alrea
answered the charge that the Convention delegates had e
ceeded their commissions.18
Understanding the lawfulness of the adoption of the Consti-
tution is not merely of historical interest. State appellate courts
have cited the allegedly unauthorized acts of the delegates as
14. Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62. U. CHI.
REV. 475 (1995); Richard S. Kay, The Illegality of the Constitution, 4 CONST. COM-
MENT
. 57 (1987).
15. See, e.g., John C. Godbold, “Lawyer”—A Title of Honor, 29 CUMB. L. REV. 30
314 (1999); Kurt T. Lash, The Constitutional Convention of 1937: The Original Mean-
ing of the New Jurisprudential Deal, 70 FORDHAM L. REV. 459, 523 (2001); L. Scott
Smith, From Promised Land to Tower of Babel: Religious Pluralism and the Future of the
Liberal Experiment in America, 45 BRANDEIS L.J. 527, 539–40 (2007); Lindsay
Jonker, Note, Learning from the Past: How the Events That Shaped the Constitutions of
the United States and Germany Play Out in the Abortion Controversy, 23 REGENT U.
REV. 447, 453–54 (2011).
16. Ackerman & Katyal, supra note 14, at 476.
17. THE FEDERALIST NO. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
18. THE FEDERALIST NO. 40 (James Madison).
64
Harvard Journal of Law & Public Policy
[Vol. 40
feat, the Convention called for separate ratifying conventions
to be held in each state.”6
These criticisms are not new. Many of the Anti-Federalist op-
ponents of the Constitution unleashed a string of vile invectives
aimed at the architects of this “outrageous violation.”7 The Fram-
ers employed “all the arts of insinuation, and influence, to betray
the people of the United States.”8 “[T]hat vile conspirator, the au-
thor of Publius: I think he might be impeached for high treason.”9
The Constitution itself was treated to similar opprobrium:
Upon the whole I look upon the new system as a most ri-
diculous piece of business—something (entre nouz) like
the legs of Nebuchadnezar’s image: It seems to have been
formed by jumbling or compressing a number of ideas to-
gether, something like the manner in which poems were
made in Swift’s flying Island.10
Modern legal writers level critiques that are equally harsh, albe-
it with less colorful language. One author contends that James
Madison led the delegates “[i]n what might be termed a bloodless
coup.”11 Another suggests that the intentional violation of their
limited mandate “could likely have led to the participants being
found guilty of treason in the event that their proceedings were
publicized or unsuccessful.”12 Ironically, Chief Justice Burger’s
critique of the legality of the Constitution was delivered in his ca-
pacity as Chairman of the National Commission on the Bicenten-
nial of the Constitution of the United States.13 This is a classic ex-
6. Id.
7.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1157.
8. A COLUMBIAN PATRIOT: OBSERVATIONS ON THE CONSTITUTION (1788), reprint-
ed in 16 DHRC, supra note 4, at 272, 277.
9. Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 15 DHRC, supra
note 4, at 399, 402.
10. Letter from William Grayson to William Short (Nov. 10, 1787), reprinted in 1
DHRC, supra note 4, at 150, 151.
11. Paul Finkelman, The First American Constitutions: State and Federal, 59 TEXAS
L. REV. 1141, 1162 n.43 (1981) (reviewing WILLI PAUL ADAMS, THE FIRST AMERI-
CAN
CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE
CONSTITUTIONS IN THE REVOLUTIONARY ERA (1980) and WILLIAM WINSLOW
CROSSKEY & WILLIAM JEFFREY, POLITICS AND THE CONSTITUTION IN THE HISTORY
OF THE
UNITED STATES (1980)).
12. Brian Kane, Idaho’s Open Meetings Act: Government’s Guarantee of Openness or
the Toothless Promise?, 44 IDAHO L. REV. 135, 137 (2007).
13. Burger, Remarks, supra note 3, at 77.
70
No. 1]
Defying Conventional Wisdom 67
Finally, after developing the legal issues surrounding the
Framers’ allegedly illegal acts, this article examines modern
scholarly literature to assess whether the critics have correctly
analyzed each of these two related but distinct legal issues.
I. DID THE CONVENTION DELEGATES EXCEED THEIR
AUTHORITY?
A. The Call of the Convention
The idea of “calling” the convention actually raises several
distinct questions: (1) Who had the authority to convene the
meeting? (2) When and where was it to be held? (3) Who ac-
tually invited the states to appoint delegates and attend the
meeting? (4) Who chose the delegates? (5) Who gave the del-
egates their authority and instructions? (6) What were those
instructions? (7) Who had the authority to determine the
rules for the Convention?
It might be thought that the place to begin our analysis of
these questions would be Article XIII of the Articles of Con-
federation, which laid out the process for amending that
document.22 However, this Article contains no provision
whatsoever for holding a convention. Accordingly, the Con-
vention had to originate from other sources that are easily
discovered by a sequential examination of the relevant
events. We start with the Annapolis Convention.
On November 30, 1785, the Virginia House of Delegates ap-
proved James Madison’s motion requesting Virginia’s congres-
sional delegates to seek an expansion of congressional authori-
ty to regulate commerce. However, on the following day the
House reconsidered because “it does not, from a mistake, con-
tain the sense of the majority of this house that voted for the
said resolutions.”23 On January 21, 1786, a similar effort was
initiated. Rather than a solution in Congress, the Virginia
22. ARTICLES OF CONFEDERATION OF 1781, art. XIII. (“[N]or shall any alteration
at any time hereafter be made in any of them; unless such alteration be agreed to
in a Congress of the United States, and be afterwards confirmed by the legisla-
tures of every State.”).
23. 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787, at 115 (Jonathan Elliot ed., 2nd ed. 1891) [hereinafter EL-
LIOT
’S DEBATES].
66
Harvard Journal of Law & Public Policy
[Vol. 40
legal precedent in lawsuits challenging the legitimacy of the
process for the adoption of state constitutions.19 When critics
claim that the Supreme Court’s judicial activism is tantamount
to an improper revision of the Constitution’s text, some schol-
ars defend the Court by comparison to the “unauthorized acts”
of the delegates to the Constitutional Convention.20 And as not-
ed by Professor Robert Natelson, the specter of the “runaway
convention” of 1787 is a common argument employed by polit-
ical opponents of modern calls for an Article V Convention of
States.21 If the Philadelphia Convention violated its mandate, a
new convention will do so today, critics assert. Even without
such pragmatic implications, this article respectfully suggests
that in a nation that treats allegiance to the Constitution as the
ultimate standard of national fidelity, it is a self-evident truth
that we ought to be satisfied, if at all possible, that the Consti-
tution was lawfully and properly adopted. Yet, while this is
obviously the preferred outcome, we must test this premise
with fair-minded and thorough scholarship.
To this end, this Article separately examines the two
claims of illegal action by the Founders. First, it reviews the
question of whether the delegates violated their commis-
sions by proposing “a whole new” Constitution rather than
merely amending the Articles of Confederation. Second, it
explores the legality of the ratification process that permitted
the Constitution to become operational upon approval of
nine state conventions rather than awaiting the unanimous
approval of the thirteen state legislatures.
Each issue will be developed in the following sequence:
Review of the timing and text of the official docu-
ments that are claimed to control the process.
Review of the discussion of the issue at the Constitu-
tional Convention.
Review of the debates on the issue during the ratifica-
tion process.
19. See Smith v. Cenarrusa, 475 P.2d 11, 14 (Idaho 1970); Wheeler v. Bd. of Trs. of
Fargo Consol. Sch. Dist., 37 S.E.2d 322, 328–29 (Ga. 1946).
20. See, e.g., Lash, supra note 15, at 523.
21. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules
Governing the Process, 78 TENN. L. REV. 693, 719–23 (2011).
No. 1]
Defying Conventional Wisdom
Finally, after developing the legal issues surrounding the
Framers’ allegedly illegal acts, this article examines modern
scholarly literature to assess whether the critics have correctly
analyzed each of these two related but distinct legal issues.
I. DID THE CONVENTION DELEGATES EXCEED THEIR
AUTHORITY?
A. The Call of the Convention
The idea of “calling” the convention actually raises seve
distinct questions: (1) Who had the authority to convene the
meeting? (2) When and where was it to be held? (3) Who a
tually invited the states to appoint delegates and attend the
meeting? (4) Who chose the delegates? (5) Who gave the d
egates their authority and instructions? (6) What were tho
instructions? (7) Who had the authority to determine the
rules for the Convention?
It might be thought that the place to begin our analysis
these questions would be Article XIII of the Articles of Con-
federation, which laid out the process for amending that
document.22 However, this Article contains no provision
whatsoever for holding a convention. Accordingly, the Con-
vention had to originate from other sources that are easily
discovered by a sequential examination of the relevant
events. We start with the Annapolis Convention.
On November 30, 1785, the Virginia House of Delegates ap-
proved James Madison’s motion requesting Virginia’s congres-
sional delegates to seek an expansion of congressional authori-
ty to regulate commerce. However, on the following day the
House reconsidered because “it does not, from a mistake, con-
tain the sense of the majority of this house that voted for the
said resolutions.”23 On January 21, 1786, a similar effort w
initiated. Rather than a solution in Congress, the Virgin
22. ARTICLES OF CONFEDERATION OF 1781, art. XIII. (“[N]or shall any alteration
at any time hereafter be made in any of them; unless such alteration be agreed
in a Congress of the United States, and be afterwards confirmed by the legisla-
tures of every State.”).
23. 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION O
THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787, at 115 (Jonathan Elliot ed., 2nd ed. 1891) [hereinafter E
LIOT
’S DEBATES].
66
Harvard Journal of Law & Public Policy
[Vol. 40
legal precedent in lawsuits challenging the legitimacy of the
process for the adoption of state constitutions.19 When critics
claim that the Supreme Court’s judicial activism is tantamount
to an improper revision of the Constitution’s text, some schol-
ars defend the Court by comparison to the “unauthorized acts”
of the delegates to the Constitutional Convention.20 And as not-
ed by Professor Robert Natelson, the specter of the “runaway
convention” of 1787 is a common argument employed by polit-
ical opponents of modern calls for an Article V Convention of
States.21 If the Philadelphia Convention violated its mandate, a
new convention will do so today, critics assert. Even without
such pragmatic implications, this article respectfully suggests
that in a nation that treats allegiance to the Constitution as the
ultimate standard of national fidelity, it is a self-evident truth
that we ought to be satisfied, if at all possible, that the Consti-
tution was lawfully and properly adopted. Yet, while this is
obviously the preferred outcome, we must test this premise
with fair-minded and thorough scholarship.
To this end, this Article separately examines the two
claims of illegal action by the Founders. First, it reviews the
question of whether the delegates violated their commis-
sions by proposing “a whole new” Constitution rather than
merely amending the Articles of Confederation. Second, it
explores the legality of the ratification process that permitted
the Constitution to become operational upon approval of
nine state conventions rather than awaiting the unanimous
approval of the thirteen state legislatures.
Each issue will be developed in the following sequence:
Review of the timing and text of the official docu-
ments that are claimed to control the process.
Review of the discussion of the issue at the Constitu-
tional Convention.
Review of the debates on the issue during the ratifica-
tion process.
19. See Smith v. Cenarrusa, 475 P.2d 11, 14 (Idaho 1970); Wheeler v. Bd. of Trs. of
Fargo Consol. Sch. Dist., 37 S.E.2d 322, 328–29 (Ga. 1946).
20. See, e.g., Lash, supra note 15, at 523.
21. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules
Governing the Process, 78 TENN. L. REV. 693, 719–23 (2011).
71
No. 1]
Defying Conventional Wisdom 67
Finally, after developing the legal issues surrounding the
Framers’ allegedly illegal acts, this article examines modern
scholarly literature to assess whether the critics have correctly
analyzed each of these two related but distinct legal issues.
I. DID THE CONVENTION DELEGATES EXCEED THEIR
AUTHORITY?
A. The Call of the Convention
The idea of “calling” the convention actually raises several
distinct questions: (1) Who had the authority to convene the
meeting? (2) When and where was it to be held? (3) Who ac-
tually invited the states to appoint delegates and attend the
meeting? (4) Who chose the delegates? (5) Who gave the del-
egates their authority and instructions? (6) What were those
instructions? (7) Who had the authority to determine the
rules for the Convention?
It might be thought that the place to begin our analysis of
these questions would be Article XIII of the Articles of Con-
federation, which laid out the process for amending that
document.22 However, this Article contains no provision
whatsoever for holding a convention. Accordingly, the Con-
vention had to originate from other sources that are easily
discovered by a sequential examination of the relevant
events. We start with the Annapolis Convention.
On November 30, 1785, the Virginia House of Delegates ap-
proved James Madison’s motion requesting Virginia’s congres-
sional delegates to seek an expansion of congressional authori-
ty to regulate commerce. However, on the following day the
House reconsidered because “it does not, from a mistake, con-
tain the sense of the majority of this house that voted for the
said resolutions.”23 On January 21, 1786, a similar effort was
initiated. Rather than a solution in Congress, the Virginia
22. ARTICLES OF CONFEDERATION OF 1781, art. XIII. (“[N]or shall any alteration
at any time hereafter be made in any of them; unless such alteration be agreed to
in a Congress of the United States, and be afterwards confirmed by the legisla-
tures of every State.”).
23. 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787, at 115 (Jonathan Elliot ed., 2nd ed. 1891) [hereinafter EL-
LIOT
’S DEBATES].
66
Harvard Journal of Law & Public Policy
[Vol. 40
legal precedent in lawsuits challenging the legitimacy of the
process for the adoption of state constitutions.19 When critics
claim that the Supreme Court’s judicial activism is tantamount
to an improper revision of the Constitution’s text, some schol-
ars defend the Court by comparison to the “unauthorized acts”
of the delegates to the Constitutional Convention.20 And as not-
ed by Professor Robert Natelson, the specter of the “runaway
convention” of 1787 is a common argument employed by polit-
ical opponents of modern calls for an Article V Convention of
States.21 If the Philadelphia Convention violated its mandate, a
new convention will do so today, critics assert. Even without
such pragmatic implications, this article respectfully suggests
that in a nation that treats allegiance to the Constitution as the
ultimate standard of national fidelity, it is a self-evident truth
that we ought to be satisfied, if at all possible, that the Consti-
tution was lawfully and properly adopted. Yet, while this is
obviously the preferred outcome, we must test this premise
with fair-minded and thorough scholarship.
To this end, this Article separately examines the two
claims of illegal action by the Founders. First, it reviews the
question of whether the delegates violated their commis-
sions by proposing “a whole new” Constitution rather than
merely amending the Articles of Confederation. Second, it
explores the legality of the ratification process that permitted
the Constitution to become operational upon approval of
nine state conventions rather than awaiting the unanimous
approval of the thirteen state legislatures.
Each issue will be developed in the following sequence:
Review of the timing and text of the official docu-
ments that are claimed to control the process.
Review of the discussion of the issue at the Constitu-
tional Convention.
Review of the debates on the issue during the ratifica-
tion process.
19. See Smith v. Cenarrusa, 475 P.2d 11, 14 (Idaho 1970); Wheeler v. Bd. of Trs. of
Fargo Consol. Sch. Dist., 37 S.E.2d 322, 328–29 (Ga. 1946).
20. See, e.g., Lash, supra note 15, at 523.
21. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules
Governing the Process, 78 TENN. L. REV. 693, 719–23 (2011).
No. 1]
Defying Conventional Wisdom
Finally, after developing the legal issues surrounding the
Framers’ allegedly illegal acts, this article examines modern
scholarly literature to assess whether the critics have correctly
analyzed each of these two related but distinct legal issues.
I. DID THE CONVENTION DELEGATES EXCEED THEIR
AUTHORITY?
A. The Call of the Convention
The idea of “calling” the convention actually raises seve
distinct questions: (1) Who had the authority to convene the
meeting? (2) When and where was it to be held? (3) Who a
tually invited the states to appoint delegates and attend the
meeting? (4) Who chose the delegates? (5) Who gave the d
egates their authority and instructions? (6) What were tho
instructions? (7) Who had the authority to determine the
rules for the Convention?
It might be thought that the place to begin our analysis
these questions would be Article XIII of the Articles of Con-
federation, which laid out the process for amending that
document.22 However, this Article contains no provision
whatsoever for holding a convention. Accordingly, the Con-
vention had to originate from other sources that are easily
discovered by a sequential examination of the relevant
events. We start with the Annapolis Convention.
On November 30, 1785, the Virginia House of Delegates ap-
proved James Madison’s motion requesting Virginia’s congres-
sional delegates to seek an expansion of congressional authori-
ty to regulate commerce. However, on the following day the
House reconsidered because “it does not, from a mistake, con-
tain the sense of the majority of this house that voted for the
said resolutions.”23 On January 21, 1786, a similar effort w
initiated. Rather than a solution in Congress, the Virgin
22. ARTICLES OF CONFEDERATION OF 1781, art. XIII. (“[N]or shall any alteration
at any time hereafter be made in any of them; unless such alteration be agreed
in a Congress of the United States, and be afterwards confirmed by the legisla-
tures of every State.”).
23. 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION O
THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787, at 115 (Jonathan Elliot ed., 2nd ed. 1891) [hereinafter E
LIOT
’S DEBATES].
66
Harvard Journal of Law & Public Policy
[Vol. 40
legal precedent in lawsuits challenging the legitimacy of the
process for the adoption of state constitutions.19 When critics
claim that the Supreme Court’s judicial activism is tantamount
to an improper revision of the Constitution’s text, some schol-
ars defend the Court by comparison to the “unauthorized acts”
of the delegates to the Constitutional Convention.20 And as not-
ed by Professor Robert Natelson, the specter of the “runaway
convention” of 1787 is a common argument employed by polit-
ical opponents of modern calls for an Article V Convention of
States.21 If the Philadelphia Convention violated its mandate, a
new convention will do so today, critics assert. Even without
such pragmatic implications, this article respectfully suggests
that in a nation that treats allegiance to the Constitution as the
ultimate standard of national fidelity, it is a self-evident truth
that we ought to be satisfied, if at all possible, that the Consti-
tution was lawfully and properly adopted. Yet, while this is
obviously the preferred outcome, we must test this premise
with fair-minded and thorough scholarship.
To this end, this Article separately examines the two
claims of illegal action by the Founders. First, it reviews the
question of whether the delegates violated their commis-
sions by proposing “a whole new” Constitution rather than
merely amending the Articles of Confederation. Second, it
explores the legality of the ratification process that permitted
the Constitution to become operational upon approval of
nine state conventions rather than awaiting the unanimous
approval of the thirteen state legislatures.
Each issue will be developed in the following sequence:
Review of the timing and text of the official docu-
ments that are claimed to control the process.
Review of the discussion of the issue at the Constitu-
tional Convention.
Review of the debates on the issue during the ratifica-
tion process.
19. See Smith v. Cenarrusa, 475 P.2d 11, 14 (Idaho 1970); Wheeler v. Bd. of Trs. of
Fargo Consol. Sch. Dist., 37 S.E.2d 322, 328–29 (Ga. 1946).
20. See, e.g., Lash, supra note 15, at 523.
21. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules
Governing the Process, 78 TENN. L. REV. 693, 719–23 (2011).
72
No. 1]
Defying Conventional Wisdom 69
a future meeting it might “seem to exceed the strict bounds of
their appointment.”31 Nonetheless, they passed a recommenda-
tion for a new convention “with more enlarged powers” necessi-
tated by a situation “so serious” as “to render the situation of the
United States delicate and critical, calling for an exertion of the
united virtue and wisdom of all the members of the confedera-
cy.”32 It was apparent to all that the act of these delegates was a
mere political recommendation.
The Annapolis report suggested the framework for the next
convention of states in four specific ways. First, it set the date and
place—Philadelphia, on the second Monday of May, 1787.33 Sec-
ond, it recommended a “convention of deputies from the different
states” who would gather “for the special and sole purpose of en-
tering into [an] investigation [of the national government’s ills],
and digesting a plan for supplying such defects as may be discov-
ered to exist . . . .”34 Third, it looked to the state legislatures to
name the delegates and to give them their authorization. The An-
napolis commissioners “beg[ged] leave to suggest” that “the
states, by whom [we] have been respectively delegated,” “concur”
in this plan and send delegates “with more enlarged powers.”35
Moreover, the commissioners recommended that the states “use
their endeavors to procure the concurrence of the other states, in
the appointment of commissioners.”36 The purpose of the next
convention would be to “devise such further provisions as shall
appear to them necessary to render the constitution of the federal
government adequate to the exigencies of the Union . . . .”37 The
next convention’s proposals would be adopted by a familiar pro-
cess. It would “report such an act for that purpose to the United
States in Congress assembled, as, when agreed to by them, and
afterwards confirmed by the legislatures of every State, will effec-
tually provide for the same.”38
There was no request to Congress to authorize the Philadel-
phia Convention. But the Annapolis commissioners “neverthe-
31. Id.
32. Id. at 118.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
68
Harvard Journal of Law & Public Policy
[Vol. 40
House proposed a convention of states—a meeting that would
become known as the Annapolis Convention. Its purpose was:
[T]o take into consideration the trade of the United States; to
examine the relative situation and trade of the said states; to
consider how far a uniform system in their commercial regu-
lations may be necessary to their common interest and their
permanent harmony; and to report to the several states such
an act relative to this great object as, when unanimously rati-
fied by them, will enable the United States in Congress as-
sembled effectually to provide for the same . . . .24
It is clear that the Annapolis Convention was intended to
propose a change to the Articles of Confederation using the
power of the states and without involving Congress. Patrick
Henry, who became an Anti-Federalist leader of the first
rank, signed the resolution calling this Convention as Gov-
ernor of Virginia and it was communicated with the requi-
site formalities to the other states.25 The minutes of the An-
napolis Convention reflect that only five states (New York,
New Jersey, Pennsylvania, Delaware, and Virginia) were in
attendance.26 Four additional states appointed commission-
ers, but they did not arrive in a timely fashion and as such
were not part of the proceedings.27 The credentials of the
delegates were read and then the Convention turned to the
issue of “what would be proper to be done by the commis-
sioners now assembled.”28
The final Report of the Commissioners concluded that they
“did not conceive it advisable to proceed on the business of their
mission under the circumstance of so partial and defective a rep-
resentation.”29 They then expressed a desire “that speedy
measures may be taken to effect a general meeting of the states,
in a future convention, for the same and such other purposes as
the situation of public affairs may be found to require.”30 The
commissioners repeatedly mentioned the limits of their authori-
ty and even worried that by making a mere recommendation for
24. Id. at 115–16.
25. Id. at 116.
26. Id.
27. 1 DHRC, supra note 4, at 177.
28. 1 ELLIOT’S DEBATES, supra note 23, at 116.
29. Id. at 117.
30. Id.
No. 1]
Defying Conventional Wisdom
a future meeting it might “seem to exceed the strict bounds
their appointment.”31 Nonetheless, they passed a recommenda
tion for a new convention “with more enlarged powers” necessi-
tated by a situation “so serious” as “to render the situation of t
United States delicate and critical, calling for an exertion of t
united virtue and wisdom of all the members of the confedera-
cy.”32 It was apparent to all that the act of these delegates was
mere political recommendation.
The Annapolis report suggested the framework for the next
convention of states in four specific ways. First, it set the date and
place—Philadelphia, on the second Monday of May, 1787.33 S
ond, it recommended a “convention of deputies from the differ
states” who would gather “for the special and sole purpose of en
tering into [an] investigation [of the national government’s ills],
and digesting a plan for supplying such defects as may be discov-
ered to exist . . . .”34 Third, it looked to the state legislatures
name the delegates and to give them their authorization. The An
napolis commissioners “beg[ged] leave to suggest” that “
states, by whom [we] have been respectively delegated,” “concur”
in this plan and send delegates “with more enlarged powers.”
Moreover, the commissioners recommended that the states “use
their endeavors to procure the concurrence of the other states, in
the appointment of commissioners.”36 The purpose of the next
convention would be to “devise such further provisions as shall
appear to them necessary to render the constitution of the federal
government adequate to the exigencies of the Union . . . .”37 The
next convention’s proposals would be adopted by a familiar pr
cess. It would “report such an act for that purpose to the Unit
States in Congress assembled, as, when agreed to by them, a
afterwards confirmed by the legislatures of every State, will effec-
tually provide for the same.”38
There was no request to Congress to authorize the Philadel-
phia Convention. But the Annapolis commissioners “nevert
31. Id.
32. Id. at 118.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
68
Harvard Journal of Law & Public Policy
[Vol. 40
House proposed a convention of states—a meeting that would
become known as the Annapolis Convention. Its purpose was:
[T]o take into consideration the trade of the United States; to
examine the relative situation and trade of the said states; to
consider how far a uniform system in their commercial regu-
lations may be necessary to their common interest and their
permanent harmony; and to report to the several states such
an act relative to this great object as, when unanimously rati-
fied by them, will enable the United States in Congress as-
sembled effectually to provide for the same . . . .24
It is clear that the Annapolis Convention was intended to
propose a change to the Articles of Confederation using the
power of the states and without involving Congress. Patrick
Henry, who became an Anti-Federalist leader of the first
rank, signed the resolution calling this Convention as Gov-
ernor of Virginia and it was communicated with the requi-
site formalities to the other states.25 The minutes of the An-
napolis Convention reflect that only five states (New York,
New Jersey, Pennsylvania, Delaware, and Virginia) were in
attendance.26 Four additional states appointed commission-
ers, but they did not arrive in a timely fashion and as such
were not part of the proceedings.27 The credentials of the
delegates were read and then the Convention turned to the
issue of “what would be proper to be done by the commis-
sioners now assembled.”28
The final Report of the Commissioners concluded that they
“did not conceive it advisable to proceed on the business of their
mission under the circumstance of so partial and defective a rep-
resentation.”29 They then expressed a desire “that speedy
measures may be taken to effect a general meeting of the states,
in a future convention, for the same and such other purposes as
the situation of public affairs may be found to require.”30 The
commissioners repeatedly mentioned the limits of their authori-
ty and even worried that by making a mere recommendation for
24. Id. at 115–16.
25. Id. at 116.
26. Id.
27. 1 DHRC, supra note 4, at 177.
28. 1 ELLIOT’S DEBATES, supra note 23, at 116.
29. Id. at 117.
30. Id.
73
No. 1]
Defying Conventional Wisdom 69
a future meeting it might “seem to exceed the strict bounds of
their appointment.”31 Nonetheless, they passed a recommenda-
tion for a new convention “with more enlarged powers” necessi-
tated by a situation “so serious” as “to render the situation of the
United States delicate and critical, calling for an exertion of the
united virtue and wisdom of all the members of the confedera-
cy.”32 It was apparent to all that the act of these delegates was a
mere political recommendation.
The Annapolis report suggested the framework for the next
convention of states in four specific ways. First, it set the date and
place—Philadelphia, on the second Monday of May, 1787.33 Sec-
ond, it recommended a “convention of deputies from the different
states” who would gather “for the special and sole purpose of en-
tering into [an] investigation [of the national government’s ills],
and digesting a plan for supplying such defects as may be discov-
ered to exist . . . .”34 Third, it looked to the state legislatures to
name the delegates and to give them their authorization. The An-
napolis commissioners “beg[ged] leave to suggest” that “the
states, by whom [we] have been respectively delegated,” “concur”
in this plan and send delegates “with more enlarged powers.”35
Moreover, the commissioners recommended that the states “use
their endeavors to procure the concurrence of the other states, in
the appointment of commissioners.”36 The purpose of the next
convention would be to “devise such further provisions as shall
appear to them necessary to render the constitution of the federal
government adequate to the exigencies of the Union . . . .”37 The
next convention’s proposals would be adopted by a familiar pro-
cess. It would “report such an act for that purpose to the United
States in Congress assembled, as, when agreed to by them, and
afterwards confirmed by the legislatures of every State, will effec-
tually provide for the same.”38
There was no request to Congress to authorize the Philadel-
phia Convention. But the Annapolis commissioners “neverthe-
31. Id.
32. Id. at 118.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
68
Harvard Journal of Law & Public Policy
[Vol. 40
House proposed a convention of states—a meeting that would
become known as the Annapolis Convention. Its purpose was:
[T]o take into consideration the trade of the United States; to
examine the relative situation and trade of the said states; to
consider how far a uniform system in their commercial regu-
lations may be necessary to their common interest and their
permanent harmony; and to report to the several states such
an act relative to this great object as, when unanimously rati-
fied by them, will enable the United States in Congress as-
sembled effectually to provide for the same . . . .24
It is clear that the Annapolis Convention was intended to
propose a change to the Articles of Confederation using the
power of the states and without involving Congress. Patrick
Henry, who became an Anti-Federalist leader of the first
rank, signed the resolution calling this Convention as Gov-
ernor of Virginia and it was communicated with the requi-
site formalities to the other states.25 The minutes of the An-
napolis Convention reflect that only five states (New York,
New Jersey, Pennsylvania, Delaware, and Virginia) were in
attendance.26 Four additional states appointed commission-
ers, but they did not arrive in a timely fashion and as such
were not part of the proceedings.27 The credentials of the
delegates were read and then the Convention turned to the
issue of “what would be proper to be done by the commis-
sioners now assembled.”28
The final Report of the Commissioners concluded that they
“did not conceive it advisable to proceed on the business of their
mission under the circumstance of so partial and defective a rep-
resentation.”29 They then expressed a desire “that speedy
measures may be taken to effect a general meeting of the states,
in a future convention, for the same and such other purposes as
the situation of public affairs may be found to require.”30 The
commissioners repeatedly mentioned the limits of their authori-
ty and even worried that by making a mere recommendation for
24. Id. at 115–16.
25. Id. at 116.
26. Id.
27. 1 DHRC, supra note 4, at 177.
28. 1 ELLIOT’S DEBATES, supra note 23, at 116.
29. Id. at 117.
30. Id.
No. 1]
Defying Conventional Wisdom
a future meeting it might “seem to exceed the strict bounds
their appointment.”31 Nonetheless, they passed a recommenda
tion for a new convention “with more enlarged powers” necessi-
tated by a situation “so serious” as “to render the situation of t
United States delicate and critical, calling for an exertion of t
united virtue and wisdom of all the members of the confedera-
cy.”32 It was apparent to all that the act of these delegates was
mere political recommendation.
The Annapolis report suggested the framework for the next
convention of states in four specific ways. First, it set the date and
place—Philadelphia, on the second Monday of May, 1787.33 S
ond, it recommended a “convention of deputies from the differ
states” who would gather “for the special and sole purpose of en
tering into [an] investigation [of the national government’s ills],
and digesting a plan for supplying such defects as may be discov-
ered to exist . . . .”34 Third, it looked to the state legislatures
name the delegates and to give them their authorization. The An
napolis commissioners “beg[ged] leave to suggest” that “
states, by whom [we] have been respectively delegated,” “concur”
in this plan and send delegates “with more enlarged powers.”
Moreover, the commissioners recommended that the states “use
their endeavors to procure the concurrence of the other states, in
the appointment of commissioners.”36 The purpose of the next
convention would be to “devise such further provisions as shall
appear to them necessary to render the constitution of the federal
government adequate to the exigencies of the Union . . . .”37 The
next convention’s proposals would be adopted by a familiar pr
cess. It would “report such an act for that purpose to the Unit
States in Congress assembled, as, when agreed to by them, a
afterwards confirmed by the legislatures of every State, will effec-
tually provide for the same.”38
There was no request to Congress to authorize the Philadel-
phia Convention. But the Annapolis commissioners “nevert
31. Id.
32. Id. at 118.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
68
Harvard Journal of Law & Public Policy
[Vol. 40
House proposed a convention of states—a meeting that would
become known as the Annapolis Convention. Its purpose was:
[T]o take into consideration the trade of the United States; to
examine the relative situation and trade of the said states; to
consider how far a uniform system in their commercial regu-
lations may be necessary to their common interest and their
permanent harmony; and to report to the several states such
an act relative to this great object as, when unanimously rati-
fied by them, will enable the United States in Congress as-
sembled effectually to provide for the same . . . .24
It is clear that the Annapolis Convention was intended to
propose a change to the Articles of Confederation using the
power of the states and without involving Congress. Patrick
Henry, who became an Anti-Federalist leader of the first
rank, signed the resolution calling this Convention as Gov-
ernor of Virginia and it was communicated with the requi-
site formalities to the other states.25 The minutes of the An-
napolis Convention reflect that only five states (New York,
New Jersey, Pennsylvania, Delaware, and Virginia) were in
attendance.26 Four additional states appointed commission-
ers, but they did not arrive in a timely fashion and as such
were not part of the proceedings.27 The credentials of the
delegates were read and then the Convention turned to the
issue of “what would be proper to be done by the commis-
sioners now assembled.”28
The final Report of the Commissioners concluded that they
“did not conceive it advisable to proceed on the business of their
mission under the circumstance of so partial and defective a rep-
resentation.”29 They then expressed a desire “that speedy
measures may be taken to effect a general meeting of the states,
in a future convention, for the same and such other purposes as
the situation of public affairs may be found to require.”30 The
commissioners repeatedly mentioned the limits of their authori-
ty and even worried that by making a mere recommendation for
24. Id. at 115–16.
25. Id. at 116.
26. Id.
27. 1 DHRC, supra note 4, at 177.
28. 1 ELLIOT’S DEBATES, supra note 23, at 116.
29. Id. at 117.
30. Id.
74
No. 1]
Defying Conventional Wisdom 71
ument. On December 4th, Virginia elected seven delegates to
the Philadelphia Convention.47 The act provided that “the Gov-
ernor is requested to transmit forthwith a copy of this Act to
the United States in Congress, and to the Executives of each of
the States in the Union.”48 Edmund Randolph, who became
governor just four days earlier, complied with the request.49
New Jersey voted on November 24th, 1786 to send author-
ized delegates “for the purpose of taking into consideration the
state of the Union as to trade and other important objects, and
of devising such further provisions as shall appear necessary to
render the Constitution of the federal government adequate to
the exigencies thereof.”50 Pennsylvania acted next, voting on
December 30th to send delegates to the Philadelphia Conven-
tion. The legislature recited that it was “fully convinced of the
necessity of revising the Foederal Constitution, for the purpose
of making such alterations and amendments as the exigencies
of our public affairs require.”51 Pennsylvania instructed their
delegates “to join with [delegates from other states] in devis-
ing, deliberating on, and discussing all such alterations and
further provisions as may be necessary to render the foederal
constitution fully adequate to the exigencies of the Union.”52
North Carolina’s legislature passed a measure on January
6th, 1787 bearing the title “for the purpose of revising the foed-
eral constitution.”53 This state’s delegates were empowered “to
discuss and decide upon the most effectual means to remove
the defects of our foederal union, and to procure the enlarged
purposes which it was intended to effect.”54 North Carolina re-
fers to the Articles of Confederation in the preamble of its reso-
lution but not in the delegates’ instructions.55
47. Id.
48. Id.
49. 1 DHRC, supra note 4, at 192 (Randolph circulated the Virginia resolution).
50. Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786),
reprinted in 1 DHRC, supra note 4, at 196, 196.
51. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199.
52. Id.
53. Act Authorizing the Election of Delegates (Jan. 6, 1787), reprinted in 1 DHRC,
supra note 4, at 200, 200.
54. Id. at 201.
55. Id. at 200–201.
70
Harvard Journal of Law & Public Policy
[Vol. 40
less concluded, from motives of respect, to transmit copies of
this report to the United States in Congress assembled, and to
the executive of the other states.”39 Importantly, the term “Arti-
cles of Confederation” is totally absent from their report. In-
stead, the Annapolis report asked the states to appoint and au-
thorize delegates “to render the constitution of the federal
government adequate to the exigencies of the Union.”40
1. The States Begin the Official Process
The plan for the second convention was launched on No-
vember 23rd, 1786, once again by the Virginia General Assem-
bly.41 The measure recited that the Annapolis commissioners
“have recommended” the proposed Philadelphia Convention.42
Virginia gave its two-fold rationale for not pursuing this matter
in Congress: (1) Congress “might be too much interrupted by
the ordinary business before them;” (2) discussions in Congress
might be “deprived of the valuable counsels of sundry indi-
viduals, who are disqualified [from Congress]” because of state
laws or the circumstances of the individuals.43 George Wash-
ington was undoubtedly the best known example of the latter
class of persons.44 Having Washington at such a convention
would be invaluable to convey a sense of dignity and serious-
ness, but he was not willing to serve in Congress.45
Seven commissioners were to be appointed “to meet such
Deputies as may be appointed and authorised by other States”
at the time and place specified “to join with them in devising
and discussing all such alterations and further provisions, as
may be necessary to render the Federal Constitution adequate
to the exigencies of the Union.”46 There was no mention of
seeking the permission of Congress to hold the convention, nor
does the phrase “Articles of Confederation” appear in the doc-
39. Id.
40. Id.
41. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
42. Id.
43. Id.
44.
See Whit Ridgeway, George Washington and the Constitution, in A COMPANION
TO
GEORGE WASHINGTON 413, 421–24 (Edward G.Lengel ed., 2012).
45.
Id.
46. 8 DHRC, supra note 4, at 541.
No. 1]
Defying Conventional Wisdom
ument. On December 4th, Virginia elected seven delegates to
the Philadelphia Convention.47 The act provided that “the Go
ernor is requested to transmit forthwith a copy of this Act to
the United States in Congress, and to the Executives of each
the States in the Union.”48 Edmund Randolph, who became
governor just four days earlier, complied with the request.49
New Jersey voted on November 24th, 1786 to send author-
ized delegates “for the purpose of taking into consideration the
state of the Union as to trade and other important objects, a
of devising such further provisions as shall appear necessary to
render the Constitution of the federal government adequate to
the exigencies thereof.”50 Pennsylvania acted next, voting on
December 30th to send delegates to the Philadelphia Conven-
tion. The legislature recited that it was “fully convinced of the
necessity of revising the Foederal Constitution, for the purpose
of making such alterations and amendments as the exigencies
of our public affairs require.”51 Pennsylvania instructed their
delegates “to join with [delegates from other states] in devis-
ing, deliberating on, and discussing all such alterations and
further provisions as may be necessary to render the foederal
constitution fully adequate to the exigencies of the Union.”52
North Carolina’s legislature passed a measure on January
6th, 1787 bearing the title “for the purpose of revising the foed-
eral constitution.”53 This state’s delegates were empowered
discuss and decide upon the most effectual means to remove
the defects of our foederal union, and to procure the enlarged
purposes which it was intended to effect.”54 North Carolina
fers to the Articles of Confederation in the preamble of its re
lution but not in the delegates’ instructions.55
47. Id.
48. Id.
49. 1 DHRC, supra note 4, at 192 (Randolph circulated the Virginia resolution).
50. Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786)
reprinted in 1 DHRC, supra note 4, at 196, 196.
51. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in
DHRC, supra note 4, at 199, 199.
52. Id.
53. Act Authorizing the Election of Delegates (Jan. 6, 1787), reprinted in 1 DHR
supra note 4, at 200, 200.
54. Id. at 201.
55. Id. at 200–201.
70
Harvard Journal of Law & Public Policy
[Vol. 40
less concluded, from motives of respect, to transmit copies of
this report to the United States in Congress assembled, and to
the executive of the other states.”39 Importantly, the term “Arti-
cles of Confederation” is totally absent from their report. In-
stead, the Annapolis report asked the states to appoint and au-
thorize delegates “to render the constitution of the federal
government adequate to the exigencies of the Union.”40
1. The States Begin the Official Process
The plan for the second convention was launched on No-
vember 23rd, 1786, once again by the Virginia General Assem-
bly.41 The measure recited that the Annapolis commissioners
“have recommended” the proposed Philadelphia Convention.42
Virginia gave its two-fold rationale for not pursuing this matter
in Congress: (1) Congress “might be too much interrupted by
the ordinary business before them;” (2) discussions in Congress
might be “deprived of the valuable counsels of sundry indi-
viduals, who are disqualified [from Congress]” because of state
laws or the circumstances of the individuals.43 George Wash-
ington was undoubtedly the best known example of the latter
class of persons.44 Having Washington at such a convention
would be invaluable to convey a sense of dignity and serious-
ness, but he was not willing to serve in Congress.45
Seven commissioners were to be appointed “to meet such
Deputies as may be appointed and authorised by other States”
at the time and place specified “to join with them in devising
and discussing all such alterations and further provisions, as
may be necessary to render the Federal Constitution adequate
to the exigencies of the Union.”46 There was no mention of
seeking the permission of Congress to hold the convention, nor
does the phrase “Articles of Confederation” appear in the doc-
39. Id.
40. Id.
41. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
42. Id.
43. Id.
44.
See Whit Ridgeway, George Washington and the Constitution, in A COMPANION
TO
GEORGE WASHINGTON 413, 421–24 (Edward G.Lengel ed., 2012).
45.
Id.
46. 8 DHRC, supra note 4, at 541.
75
No. 1]
Defying Conventional Wisdom 71
ument. On December 4th, Virginia elected seven delegates to
the Philadelphia Convention.47 The act provided that “the Gov-
ernor is requested to transmit forthwith a copy of this Act to
the United States in Congress, and to the Executives of each of
the States in the Union.”48 Edmund Randolph, who became
governor just four days earlier, complied with the request.49
New Jersey voted on November 24th, 1786 to send author-
ized delegates “for the purpose of taking into consideration the
state of the Union as to trade and other important objects, and
of devising such further provisions as shall appear necessary to
render the Constitution of the federal government adequate to
the exigencies thereof.”50 Pennsylvania acted next, voting on
December 30th to send delegates to the Philadelphia Conven-
tion. The legislature recited that it was “fully convinced of the
necessity of revising the Foederal Constitution, for the purpose
of making such alterations and amendments as the exigencies
of our public affairs require.”51 Pennsylvania instructed their
delegates “to join with [delegates from other states] in devis-
ing, deliberating on, and discussing all such alterations and
further provisions as may be necessary to render the foederal
constitution fully adequate to the exigencies of the Union.”52
North Carolina’s legislature passed a measure on January
6th, 1787 bearing the title “for the purpose of revising the foed-
eral constitution.”53 This state’s delegates were empowered “to
discuss and decide upon the most effectual means to remove
the defects of our foederal union, and to procure the enlarged
purposes which it was intended to effect.”54 North Carolina re-
fers to the Articles of Confederation in the preamble of its reso-
lution but not in the delegates’ instructions.55
47. Id.
48. Id.
49. 1 DHRC, supra note 4, at 192 (Randolph circulated the Virginia resolution).
50. Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786),
reprinted in 1 DHRC, supra note 4, at 196, 196.
51. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199.
52. Id.
53. Act Authorizing the Election of Delegates (Jan. 6, 1787), reprinted in 1 DHRC,
supra note 4, at 200, 200.
54. Id. at 201.
55. Id. at 200–201.
70
Harvard Journal of Law & Public Policy
[Vol. 40
less concluded, from motives of respect, to transmit copies of
this report to the United States in Congress assembled, and to
the executive of the other states.”39 Importantly, the term “Arti-
cles of Confederation” is totally absent from their report. In-
stead, the Annapolis report asked the states to appoint and au-
thorize delegates “to render the constitution of the federal
government adequate to the exigencies of the Union.”40
1. The States Begin the Official Process
The plan for the second convention was launched on No-
vember 23rd, 1786, once again by the Virginia General Assem-
bly.41 The measure recited that the Annapolis commissioners
“have recommended” the proposed Philadelphia Convention.42
Virginia gave its two-fold rationale for not pursuing this matter
in Congress: (1) Congress “might be too much interrupted by
the ordinary business before them;” (2) discussions in Congress
might be “deprived of the valuable counsels of sundry indi-
viduals, who are disqualified [from Congress]” because of state
laws or the circumstances of the individuals.43 George Wash-
ington was undoubtedly the best known example of the latter
class of persons.44 Having Washington at such a convention
would be invaluable to convey a sense of dignity and serious-
ness, but he was not willing to serve in Congress.45
Seven commissioners were to be appointed “to meet such
Deputies as may be appointed and authorised by other States”
at the time and place specified “to join with them in devising
and discussing all such alterations and further provisions, as
may be necessary to render the Federal Constitution adequate
to the exigencies of the Union.”46 There was no mention of
seeking the permission of Congress to hold the convention, nor
does the phrase “Articles of Confederation” appear in the doc-
39. Id.
40. Id.
41. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
42. Id.
43. Id.
44.
See Whit Ridgeway, George Washington and the Constitution, in A COMPANION
TO
GEORGE WASHINGTON 413, 421–24 (Edward G.Lengel ed., 2012).
45.
Id.
46. 8 DHRC, supra note 4, at 541.
No. 1]
Defying Conventional Wisdom
ument. On December 4th, Virginia elected seven delegates to
the Philadelphia Convention.47 The act provided that “the Go
ernor is requested to transmit forthwith a copy of this Act to
the United States in Congress, and to the Executives of each
the States in the Union.”48 Edmund Randolph, who became
governor just four days earlier, complied with the request.49
New Jersey voted on November 24th, 1786 to send author-
ized delegates “for the purpose of taking into consideration the
state of the Union as to trade and other important objects, a
of devising such further provisions as shall appear necessary to
render the Constitution of the federal government adequate to
the exigencies thereof.”50 Pennsylvania acted next, voting on
December 30th to send delegates to the Philadelphia Conven-
tion. The legislature recited that it was “fully convinced of the
necessity of revising the Foederal Constitution, for the purpose
of making such alterations and amendments as the exigencies
of our public affairs require.”51 Pennsylvania instructed their
delegates “to join with [delegates from other states] in devis-
ing, deliberating on, and discussing all such alterations and
further provisions as may be necessary to render the foederal
constitution fully adequate to the exigencies of the Union.”52
North Carolina’s legislature passed a measure on January
6th, 1787 bearing the title “for the purpose of revising the foed-
eral constitution.”53 This state’s delegates were empowered
discuss and decide upon the most effectual means to remove
the defects of our foederal union, and to procure the enlarged
purposes which it was intended to effect.”54 North Carolina
fers to the Articles of Confederation in the preamble of its re
lution but not in the delegates’ instructions.55
47. Id.
48. Id.
49. 1 DHRC, supra note 4, at 192 (Randolph circulated the Virginia resolution).
50. Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786)
reprinted in 1 DHRC, supra note 4, at 196, 196.
51. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in
DHRC, supra note 4, at 199, 199.
52. Id.
53. Act Authorizing the Election of Delegates (Jan. 6, 1787), reprinted in 1 DHR
supra note 4, at 200, 200.
54. Id. at 201.
55. Id. at 200–201.
70
Harvard Journal of Law & Public Policy
[Vol. 40
less concluded, from motives of respect, to transmit copies of
this report to the United States in Congress assembled, and to
the executive of the other states.”39 Importantly, the term “Arti-
cles of Confederation” is totally absent from their report. In-
stead, the Annapolis report asked the states to appoint and au-
thorize delegates “to render the constitution of the federal
government adequate to the exigencies of the Union.”40
1. The States Begin the Official Process
The plan for the second convention was launched on No-
vember 23rd, 1786, once again by the Virginia General Assem-
bly.41 The measure recited that the Annapolis commissioners
“have recommended” the proposed Philadelphia Convention.42
Virginia gave its two-fold rationale for not pursuing this matter
in Congress: (1) Congress “might be too much interrupted by
the ordinary business before them;” (2) discussions in Congress
might be “deprived of the valuable counsels of sundry indi-
viduals, who are disqualified [from Congress]” because of state
laws or the circumstances of the individuals.43 George Wash-
ington was undoubtedly the best known example of the latter
class of persons.44 Having Washington at such a convention
would be invaluable to convey a sense of dignity and serious-
ness, but he was not willing to serve in Congress.45
Seven commissioners were to be appointed “to meet such
Deputies as may be appointed and authorised by other States”
at the time and place specified “to join with them in devising
and discussing all such alterations and further provisions, as
may be necessary to render the Federal Constitution adequate
to the exigencies of the Union.”46 There was no mention of
seeking the permission of Congress to hold the convention, nor
does the phrase “Articles of Confederation” appear in the doc-
39. Id.
40. Id.
41. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
42. Id.
43. Id.
44.
See Whit Ridgeway, George Washington and the Constitution, in A COMPANION
TO
GEORGE WASHINGTON 413, 421–24 (Edward G.Lengel ed., 2012).
45.
Id.
46. 8 DHRC, supra note 4, at 541.
76
No. 1]
Defying Conventional Wisdom 73
vote.63 Pennsylvania required a four-delegate quorum.64 Geor-
gia set the number at two delegates.65
In chronological order, the next event was a February 21st
resolution passed by the Confederation Congress that is widely
proclaimed as the measure that “called” the Constitutional
Convention. But, to understand the origins of this controversial
and important measure, we need to turn our attention to the
legislature of New York.
2. Machinations in New York
Congress’s inability to pay the debts from the War for Ameri-
can Independence was one of the key reasons that the states were
looking to revise the federal system.66 Congress proposed a new
system in April 1783 containing two important changes to the Ar-
ticles of Confederation.67 First, apportionment of debt would be
based on population rather than the value of land.68 Second, the
Impost of 1783 requested that the states permit Congress to im-
pose a five-percent tariff on imports for twenty-five years with the
funds dedicated to paying off war debt.69
The Impost of 1783 reveals the formalities the Confederation
Congress employed when it requested that the states take offi-
cial action. Congress proclaimed that their measure was “rec-
ommended to the several states.”70 Moreover, “the several
states are advised to authorize their respective delegates to
subscribe and ratify the same as part of said instrument of un-
ion.”71 This was followed by a formal printed, six-page “Ad-
63. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in 1
DHRC, supra note 4, at 196, 196; Act Authorizing the Election of Delegates (Jan. 6,
1787), reprinted in 1 DHRC, supra note 4, at 200, 200; Act Electing and Empowering
Delegates (Feb. 3, 1787) reprinted in 1 DHRC, supra note 4, at 203, 203.
64. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199.
65. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC,
supra note 4, at 204, 204.
66.
See e.g., THE FEDERALIST NO. 15, at 69 (Alexander Hamilton) (Clinton Rossit-
er ed., 1961).
67. 19 DHRC, supra note 4, at xxxvi.
68. Id.
69. Id.
70. 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 258 (Worthing-
ton C. Ford et al. eds., 1904–37) [hereinafter JOURNALS OF CONGRESS].
71. Id. at 260.
72
Harvard Journal of Law & Public Policy
[Vol. 40
On February 3rd, Delaware became the fifth state to author-
ize the Philadelphia Convention with an act entitled “for the
purpose of revising the federal Constitution.”56 The preamble
recites that the legislature was “fully convinced of the Necessi-
ty of revising the Foederal Constitution, and adding thereto
such further Provisions as may render the same more adequate
to the Exigencies of the Union.”57
Delaware employed the familiar language of international
diplomacy in granting “powers” to its delegates.58 They were
“hereby constituted and appointed Deputies from this State,
with Powers to meet such Deputies as may be appointed and
authorized by the other States . . . and to join with them in de-
vising, deliberating on, and discussing, such Alterations and
further Provisions, as may be necessary to render the Foederal
Constitution adequate to the Exigencies of the Union.”59 Dela-
ware added one extremely important limitation to their dele-
gates’ authority. Their powers did “not extend to that Part of
the Fifth Article of the Confederation . . . which declares
that . . . each State shall have one Vote.”60
On February 10th, Georgia enacted a measure “for the Pur-
pose of revising the Federal Constitution.”61 Its delegates were
empowered “to join with [delegates from other states] in devis-
ing and discussing all such alterations and farther [sic] provi-
sions, as may be necessary to render the federal constitution
adequate to the exigencies of the union.”62
In addition to Delaware’s specific instruction on preserving
the equality of the states, all six of the initial states issued for-
mal instruction to their delegates regarding voting. For exam-
ple, each state established its own rule for a minimum number
of delegates authorized to cast a vote for the state. Virginia,
New Jersey, North Carolina, and Delaware required a mini-
mum of three delegates to be present to cast the state’s single
56. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
57. Id.
58. Id.
59. Id.
60. Id.
61. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC,
supra note 4, at 204, 204.
62. Id.
No. 1]
Defying Conventional Wisdom
vote.63 Pennsylvania required a four-delegate quorum.64 Geor-
gia set the number at two delegates.65
In chronological order, the next event was a February 21
resolution passed by the Confederation Congress that is wide
proclaimed as the measure that “called” the Constitutional
Convention. But, to understand the origins of this controversial
and important measure, we need to turn our attention to the
legislature of New York.
2. Machinations in New York
Congress’s inability to pay the debts from the War for Ameri
can Independence was one of the key reasons that the states w
looking to revise the federal system.66 Congress proposed a new
system in April 1783 containing two important changes to the A
ticles of Confederation.67 First, apportionment of debt would be
based on population rather than the value of land.68 Second, the
Impost of 1783 requested that the states permit Congress to im
pose a five-percent tariff on imports for twenty-five years with t
funds dedicated to paying off war debt.69
The Impost of 1783 reveals the formalities the Confederation
Congress employed when it requested that the states take offi-
cial action. Congress proclaimed that their measure was “r
ommended to the several states.”70 Moreover, “the sever
states are advised to authorize their respective delegates to
subscribe and ratify the same as part of said instrument of un-
ion.”71 This was followed by a formal printed, six-page “Ad-
63. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in
DHRC, supra note 4, at 196, 196; Act Authorizing the Election of Delegates (Jan. 6,
1787), reprinted in 1 DHRC, supra note 4, at 200, 200; Act Electing and Empoweri
Delegates (Feb. 3, 1787) reprinted in 1 DHRC, supra note 4, at 203, 203.
64. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in
DHRC, supra note 4, at 199, 199.
65. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DH
supra note 4, at 204, 204.
66.
See e.g., THE FEDERALIST NO. 15, at 69 (Alexander Hamilton) (Clinton Ro
er ed., 1961).
67. 19 DHRC, supra note 4, at xxxvi.
68. Id.
69. Id.
70. 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 258 (Worthing-
ton C. Ford et al. eds., 1904–37) [hereinafter JOURNALS OF CONGRESS].
71. Id. at 260.
72
Harvard Journal of Law & Public Policy
[Vol. 40
On February 3rd, Delaware became the fifth state to author-
ize the Philadelphia Convention with an act entitled “for the
purpose of revising the federal Constitution.”56 The preamble
recites that the legislature was “fully convinced of the Necessi-
ty of revising the Foederal Constitution, and adding thereto
such further Provisions as may render the same more adequate
to the Exigencies of the Union.”57
Delaware employed the familiar language of international
diplomacy in granting “powers” to its delegates.58 They were
“hereby constituted and appointed Deputies from this State,
with Powers to meet such Deputies as may be appointed and
authorized by the other States . . . and to join with them in de-
vising, deliberating on, and discussing, such Alterations and
further Provisions, as may be necessary to render the Foederal
Constitution adequate to the Exigencies of the Union.”59 Dela-
ware added one extremely important limitation to their dele-
gates’ authority. Their powers did “not extend to that Part of
the Fifth Article of the Confederation . . . which declares
that . . . each State shall have one Vote.”60
On February 10th, Georgia enacted a measure “for the Pur-
pose of revising the Federal Constitution.”61 Its delegates were
empowered “to join with [delegates from other states] in devis-
ing and discussing all such alterations and farther [sic] provi-
sions, as may be necessary to render the federal constitution
adequate to the exigencies of the union.”62
In addition to Delaware’s specific instruction on preserving
the equality of the states, all six of the initial states issued for-
mal instruction to their delegates regarding voting. For exam-
ple, each state established its own rule for a minimum number
of delegates authorized to cast a vote for the state. Virginia,
New Jersey, North Carolina, and Delaware required a mini-
mum of three delegates to be present to cast the state’s single
56. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
57. Id.
58. Id.
59. Id.
60. Id.
61. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC,
supra note 4, at 204, 204.
62. Id.
77
No. 1]
Defying Conventional Wisdom 73
vote.63 Pennsylvania required a four-delegate quorum.64 Geor-
gia set the number at two delegates.65
In chronological order, the next event was a February 21st
resolution passed by the Confederation Congress that is widely
proclaimed as the measure that “called” the Constitutional
Convention. But, to understand the origins of this controversial
and important measure, we need to turn our attention to the
legislature of New York.
2. Machinations in New York
Congress’s inability to pay the debts from the War for Ameri-
can Independence was one of the key reasons that the states were
looking to revise the federal system.66 Congress proposed a new
system in April 1783 containing two important changes to the Ar-
ticles of Confederation.67 First, apportionment of debt would be
based on population rather than the value of land.68 Second, the
Impost of 1783 requested that the states permit Congress to im-
pose a five-percent tariff on imports for twenty-five years with the
funds dedicated to paying off war debt.69
The Impost of 1783 reveals the formalities the Confederation
Congress employed when it requested that the states take offi-
cial action. Congress proclaimed that their measure was “rec-
ommended to the several states.”70 Moreover, “the several
states are advised to authorize their respective delegates to
subscribe and ratify the same as part of said instrument of un-
ion.”71 This was followed by a formal printed, six-page “Ad-
63. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in 1
DHRC, supra note 4, at 196, 196; Act Authorizing the Election of Delegates (Jan. 6,
1787), reprinted in 1 DHRC, supra note 4, at 200, 200; Act Electing and Empowering
Delegates (Feb. 3, 1787) reprinted in 1 DHRC, supra note 4, at 203, 203.
64. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199.
65. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC,
supra note 4, at 204, 204.
66.
See e.g., THE FEDERALIST NO. 15, at 69 (Alexander Hamilton) (Clinton Rossit-
er ed., 1961).
67. 19 DHRC, supra note 4, at xxxvi.
68. Id.
69. Id.
70. 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 258 (Worthing-
ton C. Ford et al. eds., 1904–37) [hereinafter JOURNALS OF CONGRESS].
71. Id. at 260.
72
Harvard Journal of Law & Public Policy
[Vol. 40
On February 3rd, Delaware became the fifth state to author-
ize the Philadelphia Convention with an act entitled “for the
purpose of revising the federal Constitution.”56 The preamble
recites that the legislature was “fully convinced of the Necessi-
ty of revising the Foederal Constitution, and adding thereto
such further Provisions as may render the same more adequate
to the Exigencies of the Union.”57
Delaware employed the familiar language of international
diplomacy in granting “powers” to its delegates.58 They were
“hereby constituted and appointed Deputies from this State,
with Powers to meet such Deputies as may be appointed and
authorized by the other States . . . and to join with them in de-
vising, deliberating on, and discussing, such Alterations and
further Provisions, as may be necessary to render the Foederal
Constitution adequate to the Exigencies of the Union.”59 Dela-
ware added one extremely important limitation to their dele-
gates’ authority. Their powers did “not extend to that Part of
the Fifth Article of the Confederation . . . which declares
that . . . each State shall have one Vote.”60
On February 10th, Georgia enacted a measure “for the Pur-
pose of revising the Federal Constitution.”61 Its delegates were
empowered “to join with [delegates from other states] in devis-
ing and discussing all such alterations and farther [sic] provi-
sions, as may be necessary to render the federal constitution
adequate to the exigencies of the union.”62
In addition to Delaware’s specific instruction on preserving
the equality of the states, all six of the initial states issued for-
mal instruction to their delegates regarding voting. For exam-
ple, each state established its own rule for a minimum number
of delegates authorized to cast a vote for the state. Virginia,
New Jersey, North Carolina, and Delaware required a mini-
mum of three delegates to be present to cast the state’s single
56. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
57. Id.
58. Id.
59. Id.
60. Id.
61. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC,
supra note 4, at 204, 204.
62. Id.
No. 1]
Defying Conventional Wisdom
vote.63 Pennsylvania required a four-delegate quorum.64 Geor-
gia set the number at two delegates.65
In chronological order, the next event was a February 21
resolution passed by the Confederation Congress that is wide
proclaimed as the measure that “called” the Constitutional
Convention. But, to understand the origins of this controversial
and important measure, we need to turn our attention to the
legislature of New York.
2. Machinations in New York
Congress’s inability to pay the debts from the War for Ameri
can Independence was one of the key reasons that the states w
looking to revise the federal system.66 Congress proposed a new
system in April 1783 containing two important changes to the A
ticles of Confederation.67 First, apportionment of debt would be
based on population rather than the value of land.68 Second, the
Impost of 1783 requested that the states permit Congress to im
pose a five-percent tariff on imports for twenty-five years with t
funds dedicated to paying off war debt.69
The Impost of 1783 reveals the formalities the Confederation
Congress employed when it requested that the states take offi-
cial action. Congress proclaimed that their measure was “r
ommended to the several states.”70 Moreover, “the sever
states are advised to authorize their respective delegates to
subscribe and ratify the same as part of said instrument of un-
ion.”71 This was followed by a formal printed, six-page “Ad-
63. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in
DHRC, supra note 4, at 196, 196; Act Authorizing the Election of Delegates (Jan. 6,
1787), reprinted in 1 DHRC, supra note 4, at 200, 200; Act Electing and Empoweri
Delegates (Feb. 3, 1787) reprinted in 1 DHRC, supra note 4, at 203, 203.
64. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in
DHRC, supra note 4, at 199, 199.
65. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DH
supra note 4, at 204, 204.
66.
See e.g., THE FEDERALIST NO. 15, at 69 (Alexander Hamilton) (Clinton Ro
er ed., 1961).
67. 19 DHRC, supra note 4, at xxxvi.
68. Id.
69. Id.
70. 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 258 (Worthing-
ton C. Ford et al. eds., 1904–37) [hereinafter JOURNALS OF CONGRESS].
71. Id. at 260.
72
Harvard Journal of Law & Public Policy
[Vol. 40
On February 3rd, Delaware became the fifth state to author-
ize the Philadelphia Convention with an act entitled “for the
purpose of revising the federal Constitution.”56 The preamble
recites that the legislature was “fully convinced of the Necessi-
ty of revising the Foederal Constitution, and adding thereto
such further Provisions as may render the same more adequate
to the Exigencies of the Union.”57
Delaware employed the familiar language of international
diplomacy in granting “powers” to its delegates.58 They were
“hereby constituted and appointed Deputies from this State,
with Powers to meet such Deputies as may be appointed and
authorized by the other States . . . and to join with them in de-
vising, deliberating on, and discussing, such Alterations and
further Provisions, as may be necessary to render the Foederal
Constitution adequate to the Exigencies of the Union.”59 Dela-
ware added one extremely important limitation to their dele-
gates’ authority. Their powers did “not extend to that Part of
the Fifth Article of the Confederation . . . which declares
that . . . each State shall have one Vote.”60
On February 10th, Georgia enacted a measure “for the Pur-
pose of revising the Federal Constitution.”61 Its delegates were
empowered “to join with [delegates from other states] in devis-
ing and discussing all such alterations and farther [sic] provi-
sions, as may be necessary to render the federal constitution
adequate to the exigencies of the union.”62
In addition to Delaware’s specific instruction on preserving
the equality of the states, all six of the initial states issued for-
mal instruction to their delegates regarding voting. For exam-
ple, each state established its own rule for a minimum number
of delegates authorized to cast a vote for the state. Virginia,
New Jersey, North Carolina, and Delaware required a mini-
mum of three delegates to be present to cast the state’s single
56. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
57. Id.
58. Id.
59. Id.
60. Id.
61. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1 DHRC,
supra note 4, at 204, 204.
62. Id.
78
No. 1]
Defying Conventional Wisdom 75
the Annapolis report.80 It expressed the view that Congress
“entirely coincide[ed]” with the report as “the inefficiency of
the federal government and the necessity of devising such
farther [sic] provisions as shall render the same adequate to
the exigencies of the Union” and “strongly recommend[ed]
to the different state legislatures to send forward delegates
to meet the proposed convention . . . .”81
However, before the resolution could be voted on by Con-
gress, New York’s delegates introduced a competing resolution
as instructed by their state legislature.82 New York’s motion
was limited to “revising the Articles of Confederation.”83 In
light of the underlying acrimony, New York’s alternative
measure was doomed. The final vote was five votes no, three
votes yes, and two states divided.84 Neither Rhode Island nor
New Hampshire was present or voting.85
Massachusetts’ delegates—one of the three states voting to
approve the New York measure—followed immediately with
an alternative viewed as a compromise.86 Congress approved
these fateful words:
Resolved that in the opinion of Congress it is expedient that
on the second Monday in May next a convention of dele-
gates who shall have been appointed by the several states be
held at Philadelphia for the sole and express purpose of re-
vising the Articles of Confederation and reporting to Con-
gress and the several legislatures such alterations and provi-
sions therein as shall when agreed to in Congress and
confirmed by the states render the federal constitution ade-
quate to the exigencies of government and the preservation
of the Union.87
While the language of this resolution has been oft-quoted, schol-
ars have generally failed to look at the resolution and its context to
determine whether this was in fact the formal call for the Phila-
80. Commentaries on the Constitution, reprinted in 13 DHRC, supra note 4, at 36–
37.
81. 32 JOURNALS OF CONGRESS, supra note 70, at 71–72.
82. Id. at 72.
83. Id.
84. Id. at 73.
85. Id.
86. Id. at 73–74.
87. Confederation Congress Calls the Constitutional Convention (Feb. 21, 1787),
reprinted in 1 DHRC, supra note 4, at 185, 187.
74
Harvard Journal of Law & Public Policy
[Vol. 40
dress to the States, by the United States in Congress Assembled
to accompany the act of April 18, 1783.”72
The Impost measure was eventually adopted by twelve
states.73 However, New York’s Senate defeated the Impost by a
vote of 11-7 on April 14th, 1785.74 With no other solutions on
the horizon, on February 15th, 1786, Congress urged the New
York legislature to reconsider.75 Repeated requests from Con-
gress and rebuffs from New York left the dangerously divisive
matter unsettled when the state’s legislature convened in Janu-
ary 1787.76 On February 15th, the legislature rejected an impas-
sioned plea by Alexander Hamilton to approve the Impost, vot-
ing 38 to 19 to send yet another deliberately unacceptable
proposal back to Congress.77
Rather than complying with the request of Congress to approve
the Impost, the New York House voted on February 17th to in-
struct the state’s delegates in Congress to make a motion to call
for a convention of states under very specific terms.78 After an ac-
rimonious attack from Senator Abraham Yates, Jr., the Senate ap-
proved the measure by a vote of 10-9 on February 20th.79 The con-
text strongly suggests that the New York legislature believed that
this motion was an effort to not only respond to the ongoing dis-
pute about the Impost, but to attempt to control the upcoming
convention of states to be held in Philadelphia on terms accepta-
ble to this most recalcitrant state.
3. Congress Responds to the Annapolis Convention Report
While the conflict with New York remained in a hostile
stalemate, on February 19th, a committee in Congress voted
by a one-vote margin to approve a resolution responding to
72. 1 ELLIOT’S DEBATES, supra note 23, at 96–100. Scholars of the era understood
the importance of this document in the process of adopting the Constitution. The
Impost of 1783 is cited in Elliot’s Debates in the chapter entitled: “Proceedings
which led to the Adoption of the Constitution of the United States.” Id. at 92.
73. CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEAN-
ING OF THE
FOUNDERS’ CONSTITUTION 224 (2005).
74. 19 DHRC, supra note 4, at xxxvi.
75. Id.
76. Id. at xxxvi–xxxix.
77. Id. at xl.
78. 31 JOURNALS OF CONGRESS, supra note 70, at 72.
79. 19 DHRC, supra note 4, at 507.
No. 1]
Defying Conventional Wisdom
the Annapolis report.80 It expressed the view that Congre
“entirely coincide[ed]” with the report as “the inefficiency of
the federal government and the necessity of devising su
farther [sic] provisions as shall render the same adequate
the exigencies of the Union” and “strongly recommend[ed]
to the different state legislatures to send forward delegates
to meet the proposed convention . . . .”81
However, before the resolution could be voted on by Con-
gress, New York’s delegates introduced a competing resolution
as instructed by their state legislature.82 New York’s motion
was limited to “revising the Articles of Confederation.”83 In
light of the underlying acrimony, New York’s alternative
measure was doomed. The final vote was five votes no, three
votes yes, and two states divided.84 Neither Rhode Island n
New Hampshire was present or voting.85
Massachusetts’ delegates—one of the three states voting to
approve the New York measure—followed immediately with
an alternative viewed as a compromise.86 Congress approved
these fateful words:
Resolved that in the opinion of Congress it is expedient that
on the second Monday in May next a convention of dele-
gates who shall have been appointed by the several states be
held at Philadelphia for the sole and express purpose of re-
vising the Articles of Confederation and reporting to Con-
gress and the several legislatures such alterations and provi-
sions therein as shall when agreed to in Congress and
confirmed by the states render the federal constitution ade-
quate to the exigencies of government and the preservation
of the Union.87
While the language of this resolution has been oft-quoted, schol-
ars have generally failed to look at the resolution and its context
determine whether this was in fact the formal call for the Phila-
80. Commentaries on the Constitution, reprinted in 13 DHRC, supra note 4, at
37.
81. 32 JOURNALS OF CONGRESS, supra note 70, at 71–72.
82. Id. at 72.
83. Id.
84. Id. at 73.
85. Id.
86. Id. at 73–74.
87. Confederation Congress Calls the Constitutional Convention (Feb. 21, 1787)
reprinted in 1 DHRC, supra note 4, at 185, 187.
74
Harvard Journal of Law & Public Policy
[Vol. 40
dress to the States, by the United States in Congress Assembled
to accompany the act of April 18, 1783.”72
The Impost measure was eventually adopted by twelve
states.73 However, New York’s Senate defeated the Impost by a
vote of 11-7 on April 14th, 1785.74 With no other solutions on
the horizon, on February 15th, 1786, Congress urged the New
York legislature to reconsider.75 Repeated requests from Con-
gress and rebuffs from New York left the dangerously divisive
matter unsettled when the state’s legislature convened in Janu-
ary 1787.76 On February 15th, the legislature rejected an impas-
sioned plea by Alexander Hamilton to approve the Impost, vot-
ing 38 to 19 to send yet another deliberately unacceptable
proposal back to Congress.77
Rather than complying with the request of Congress to approve
the Impost, the New York House voted on February 17th to in-
struct the state’s delegates in Congress to make a motion to call
for a convention of states under very specific terms.78 After an ac-
rimonious attack from Senator Abraham Yates, Jr., the Senate ap-
proved the measure by a vote of 10-9 on February 20th.79 The con-
text strongly suggests that the New York legislature believed that
this motion was an effort to not only respond to the ongoing dis-
pute about the Impost, but to attempt to control the upcoming
convention of states to be held in Philadelphia on terms accepta-
ble to this most recalcitrant state.
3. Congress Responds to the Annapolis Convention Report
While the conflict with New York remained in a hostile
stalemate, on February 19th, a committee in Congress voted
by a one-vote margin to approve a resolution responding to
72. 1 ELLIOT’S DEBATES, supra note 23, at 96–100. Scholars of the era understood
the importance of this document in the process of adopting the Constitution. The
Impost of 1783 is cited in Elliot’s Debates in the chapter entitled: “Proceedings
which led to the Adoption of the Constitution of the United States.” Id. at 92.
73. CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEAN-
ING OF THE
FOUNDERS’ CONSTITUTION 224 (2005).
74. 19 DHRC, supra note 4, at xxxvi.
75. Id.
76. Id. at xxxvi–xxxix.
77. Id. at xl.
78. 31 JOURNALS OF CONGRESS, supra note 70, at 72.
79. 19 DHRC, supra note 4, at 507.
79
No. 1]
Defying Conventional Wisdom 75
the Annapolis report.80 It expressed the view that Congress
“entirely coincide[ed]” with the report as “the inefficiency of
the federal government and the necessity of devising such
farther [sic] provisions as shall render the same adequate to
the exigencies of the Union” and “strongly recommend[ed]
to the different state legislatures to send forward delegates
to meet the proposed convention . . . .”81
However, before the resolution could be voted on by Con-
gress, New York’s delegates introduced a competing resolution
as instructed by their state legislature.82 New York’s motion
was limited to “revising the Articles of Confederation.”83 In
light of the underlying acrimony, New York’s alternative
measure was doomed. The final vote was five votes no, three
votes yes, and two states divided.84 Neither Rhode Island nor
New Hampshire was present or voting.85
Massachusetts’ delegates—one of the three states voting to
approve the New York measure—followed immediately with
an alternative viewed as a compromise.86 Congress approved
these fateful words:
Resolved that in the opinion of Congress it is expedient that
on the second Monday in May next a convention of dele-
gates who shall have been appointed by the several states be
held at Philadelphia for the sole and express purpose of re-
vising the Articles of Confederation and reporting to Con-
gress and the several legislatures such alterations and provi-
sions therein as shall when agreed to in Congress and
confirmed by the states render the federal constitution ade-
quate to the exigencies of government and the preservation
of the Union.87
While the language of this resolution has been oft-quoted, schol-
ars have generally failed to look at the resolution and its context to
determine whether this was in fact the formal call for the Phila-
80. Commentaries on the Constitution, reprinted in 13 DHRC, supra note 4, at 36–
37.
81. 32 JOURNALS OF CONGRESS, supra note 70, at 71–72.
82. Id. at 72.
83. Id.
84. Id. at 73.
85. Id.
86. Id. at 73–74.
87. Confederation Congress Calls the Constitutional Convention (Feb. 21, 1787),
reprinted in 1 DHRC, supra note 4, at 185, 187.
74
Harvard Journal of Law & Public Policy
[Vol. 40
dress to the States, by the United States in Congress Assembled
to accompany the act of April 18, 1783.”72
The Impost measure was eventually adopted by twelve
states.73 However, New York’s Senate defeated the Impost by a
vote of 11-7 on April 14th, 1785.74 With no other solutions on
the horizon, on February 15th, 1786, Congress urged the New
York legislature to reconsider.75 Repeated requests from Con-
gress and rebuffs from New York left the dangerously divisive
matter unsettled when the state’s legislature convened in Janu-
ary 1787.76 On February 15th, the legislature rejected an impas-
sioned plea by Alexander Hamilton to approve the Impost, vot-
ing 38 to 19 to send yet another deliberately unacceptable
proposal back to Congress.77
Rather than complying with the request of Congress to approve
the Impost, the New York House voted on February 17th to in-
struct the state’s delegates in Congress to make a motion to call
for a convention of states under very specific terms.78 After an ac-
rimonious attack from Senator Abraham Yates, Jr., the Senate ap-
proved the measure by a vote of 10-9 on February 20th.79 The con-
text strongly suggests that the New York legislature believed that
this motion was an effort to not only respond to the ongoing dis-
pute about the Impost, but to attempt to control the upcoming
convention of states to be held in Philadelphia on terms accepta-
ble to this most recalcitrant state.
3. Congress Responds to the Annapolis Convention Report
While the conflict with New York remained in a hostile
stalemate, on February 19th, a committee in Congress voted
by a one-vote margin to approve a resolution responding to
72. 1 ELLIOT’S DEBATES, supra note 23, at 96–100. Scholars of the era understood
the importance of this document in the process of adopting the Constitution. The
Impost of 1783 is cited in Elliot’s Debates in the chapter entitled: “Proceedings
which led to the Adoption of the Constitution of the United States.” Id. at 92.
73. CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEAN-
ING OF THE
FOUNDERS’ CONSTITUTION 224 (2005).
74. 19 DHRC, supra note 4, at xxxvi.
75. Id.
76. Id. at xxxvi–xxxix.
77. Id. at xl.
78. 31 JOURNALS OF CONGRESS, supra note 70, at 72.
79. 19 DHRC, supra note 4, at 507.
No. 1]
Defying Conventional Wisdom
the Annapolis report.80 It expressed the view that Congre
“entirely coincide[ed]” with the report as “the inefficiency of
the federal government and the necessity of devising su
farther [sic] provisions as shall render the same adequate
the exigencies of the Union” and “strongly recommend[ed]
to the different state legislatures to send forward delegates
to meet the proposed convention . . . .”81
However, before the resolution could be voted on by Con-
gress, New York’s delegates introduced a competing resolution
as instructed by their state legislature.82 New York’s motion
was limited to “revising the Articles of Confederation.”83 In
light of the underlying acrimony, New York’s alternative
measure was doomed. The final vote was five votes no, three
votes yes, and two states divided.84 Neither Rhode Island n
New Hampshire was present or voting.85
Massachusetts’ delegates—one of the three states voting to
approve the New York measure—followed immediately with
an alternative viewed as a compromise.86 Congress approved
these fateful words:
Resolved that in the opinion of Congress it is expedient that
on the second Monday in May next a convention of dele-
gates who shall have been appointed by the several states be
held at Philadelphia for the sole and express purpose of re-
vising the Articles of Confederation and reporting to Con-
gress and the several legislatures such alterations and provi-
sions therein as shall when agreed to in Congress and
confirmed by the states render the federal constitution ade-
quate to the exigencies of government and the preservation
of the Union.87
While the language of this resolution has been oft-quoted, schol-
ars have generally failed to look at the resolution and its context to
determine whether this was in fact the formal call for the Phila-
80. Commentaries on the Constitution, reprinted in 13 DHRC, supra note 4, at
37.
81. 32 JOURNALS OF CONGRESS, supra note 70, at 71–72.
82. Id. at 72.
83. Id.
84. Id. at 73.
85. Id.
86. Id. at 73–74.
87. Confederation Congress Calls the Constitutional Convention (Feb. 21, 1787)
reprinted in 1 DHRC, supra note 4, at 185, 187.
74
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[Vol. 40
dress to the States, by the United States in Congress Assembled
to accompany the act of April 18, 1783.”72
The Impost measure was eventually adopted by twelve
states.73 However, New York’s Senate defeated the Impost by a
vote of 11-7 on April 14th, 1785.74 With no other solutions on
the horizon, on February 15th, 1786, Congress urged the New
York legislature to reconsider.75 Repeated requests from Con-
gress and rebuffs from New York left the dangerously divisive
matter unsettled when the state’s legislature convened in Janu-
ary 1787.76 On February 15th, the legislature rejected an impas-
sioned plea by Alexander Hamilton to approve the Impost, vot-
ing 38 to 19 to send yet another deliberately unacceptable
proposal back to Congress.77
Rather than complying with the request of Congress to approve
the Impost, the New York House voted on February 17th to in-
struct the state’s delegates in Congress to make a motion to call
for a convention of states under very specific terms.78 After an ac-
rimonious attack from Senator Abraham Yates, Jr., the Senate ap-
proved the measure by a vote of 10-9 on February 20th.79 The con-
text strongly suggests that the New York legislature believed that
this motion was an effort to not only respond to the ongoing dis-
pute about the Impost, but to attempt to control the upcoming
convention of states to be held in Philadelphia on terms accepta-
ble to this most recalcitrant state.
3. Congress Responds to the Annapolis Convention Report
While the conflict with New York remained in a hostile
stalemate, on February 19th, a committee in Congress voted
by a one-vote margin to approve a resolution responding to
72. 1 ELLIOT’S DEBATES, supra note 23, at 96–100. Scholars of the era understood
the importance of this document in the process of adopting the Constitution. The
Impost of 1783 is cited in Elliot’s Debates in the chapter entitled: “Proceedings
which led to the Adoption of the Constitution of the United States.” Id. at 92.
73. CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEAN-
ING OF THE
FOUNDERS’ CONSTITUTION 224 (2005).
74. 19 DHRC, supra note 4, at xxxvi.
75. Id.
76. Id. at xxxvi–xxxix.
77. Id. at xl.
78. 31 JOURNALS OF CONGRESS, supra note 70, at 72.
79. 19 DHRC, supra note 4, at 507.
80
76
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[Vol. 40
delphia Convention. There are two attributes that would be found
in a formal call that are completely absent here. First, the language
of the resolution would be addressed to the states. Second, Con-
gress would follow its normal formal protocol for submitting
measures for the consideration of the states. For example, when
Congress asked the states to ratify the amendment to the Articles
in the Impost of 1783, the language was directed to the states and
there was formal communication to the chief executives of each
state.88 There is no such language of invitation contained in the
February 21st resolution of Congress and there is no record of any
formal instruments of communication to the states inviting them
to send delegates to Philadelphia. When Virginia called the Phila-
delphia Convention, it had sent such communications.89 Congress
never did in this instance.
The absence of the formalities is strong evidence that Congress
was merely issuing its blessing on the convention planning al-
ready in progress at the initiative of Virginia and five other
states. Congress expressed its “opinion” that “it is expedient”
that a convention of delegates “be held.” On its face, it reads
more like an endorsement than a formal request to the states to
send delegates. Moreover, the question of the power of Congress
to issue such a formal call cannot be overlooked. There is noth-
ing in the text of the Articles of Confederation (particularly Arti-
cle XIII) that suggests that Congress had any power to actually
call a convention of states.90
However, the historical record demonstrates that the states
clearly believed that they could call conventions of states to dis-
cuss common problems. Natelson has catalogued ten such con-
ventions after the Declaration of Independence but prior to the
Annapolis Convention.91 Congress was basically a bystander in
this process. Virginia did not seek the approval of Congress when
it invited the other states to the conventions held in Annapolis
and Philadelphia. It is clear that the states believed, as the text of
the Annapolis report makes plain, that notifying Congress arose
88. 24 JOURNALS OF CONGRESS, supra note 70, at 258.
89. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
90. See supra note 22 and accompanying text.
91. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitu-
tion’s “Convention for Proposing Amendments”, 65 FLA. L. REV. 615 (2013).
No. 1]
Defying Conventional Wisdom 77
“from motives of respect”92 rather than from any sense that it was
necessary to seek congressional approval.
Calling a convention is a formal invitation to participate in
an official gathering. A call to the states to take action at the
request of Congress would have said so directly and would
have been sent to the states with appropriate formalities. All
such indicia of a formal call are missing from the February 21st
resolution but are clearly present in the measure enacted the
previous fall by the Virginia legislature.
4. The Six Remaining States Appoint Delegates
A February 22nd resolution by the Massachusetts legislature
was enacted without knowledge that Congress had acted the
prior day.93 It was repealed and replaced with another enact-
ment on March 7th.94 This resolution adopted the operative
paragraph from the congressional resolution.95 Thus, Massa-
chusetts delegates were instructed to “solely” amend the Arti-
cles of Confederation to “render the federal constitution ade-
quate to the exigencies of government and the preservation of
the union.”96 Without specifically citing the Congressional reso-
lution, on March 6th, New York’s legislature appointed dele-
gates with the verbatim language used in the resolution.97 Con-
sequently, the Empire State’s delegates were under the same
instructions as those from Massachusetts.
South Carolina’s legislature ignored the language proffered
by Congress. It essentially returned to the Virginia model with
an enactment entitled “for the purpose of revising the foederal
constitution.”98 On March 8th, its delegates were given the au-
thority “to join” with other delegates “in devising and discuss-
ing all such alterations, clauses, articles and provisions as may
92. 1 ELLIOT’S DEBATES, supra note 23, at 118.
93. Resolution Authorizing the Appointment of Delegates and Providing In-
structions for Them (Feb. 22, 1787), reprinted in 1 DHRC, supra note 4, at 205, 205.
94. House Substitute of 7 March for the Resolution of 22 February (Mar. 7, 1787),
reprinted in 1 DHRC, supra note 4, at 207, 207.
95. Id.
96. Id.
97. Assembly and Senate Authorize Election of Delegates (Feb. 26, 1787), reprint-
ed in 1 DHRC, supra note 4, at 209, 209.
98. Act Authorizing the Election of Delegates (Mar. 8, 1787), reprinted in 1
DHRC, supra note 4, at 213, 214.
76
Harvard Journal of Law & Public Policy
[Vol. 40
delphia Convention. There are two attributes that would be found
in a formal call that are completely absent here. First, the language
of the resolution would be addressed to the states. Second, Con-
gress would follow its normal formal protocol for submitting
measures for the consideration of the states. For example, when
Congress asked the states to ratify the amendment to the Articles
in the Impost of 1783, the language was directed to the states and
there was formal communication to the chief executives of each
state.88 There is no such language of invitation contained in the
February 21st resolution of Congress and there is no record of any
formal instruments of communication to the states inviting them
to send delegates to Philadelphia. When Virginia called the Phila-
delphia Convention, it had sent such communications.89 Congress
never did in this instance.
The absence of the formalities is strong evidence that Congress
was merely issuing its blessing on the convention planning al-
ready in progress at the initiative of Virginia and five other
states. Congress expressed its “opinion” that “it is expedient”
that a convention of delegates “be held.” On its face, it reads
more like an endorsement than a formal request to the states to
send delegates. Moreover, the question of the power of Congress
to issue such a formal call cannot be overlooked. There is noth-
ing in the text of the Articles of Confederation (particularly Arti-
cle XIII) that suggests that Congress had any power to actually
call a convention of states.90
However, the historical record demonstrates that the states
clearly believed that they could call conventions of states to dis-
cuss common problems. Natelson has catalogued ten such con-
ventions after the Declaration of Independence but prior to the
Annapolis Convention.91 Congress was basically a bystander in
this process. Virginia did not seek the approval of Congress when
it invited the other states to the conventions held in Annapolis
and Philadelphia. It is clear that the states believed, as the text of
the Annapolis report makes plain, that notifying Congress arose
88. 24 JOURNALS OF CONGRESS, supra note 70, at 258.
89. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
90. See supra note 22 and accompanying text.
91. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitu-
tion’s “Convention for Proposing Amendments”, 65 FLA. L. REV. 615 (2013).
No. 1]
Defying Conventional Wisdom
“from motives of respect”92 rather than from any sense that it w
necessary to seek congressional approval.
Calling a convention is a formal invitation to participate i
an official gathering. A call to the states to take action at t
request of Congress would have said so directly and would
have been sent to the states with appropriate formalities. A
such indicia of a formal call are missing from the February 21st
resolution but are clearly present in the measure enacted t
previous fall by the Virginia legislature.
4. The Six Remaining States Appoint Delegates
A February 22nd resolution by the Massachusetts legislature
was enacted without knowledge that Congress had acted t
prior day.93 It was repealed and replaced with another ena
ment on March 7th.94 This resolution adopted the operative
paragraph from the congressional resolution.95 Thus, Massa-
chusetts delegates were instructed to “solely” amend the Arti-
cles of Confederation to “render the federal constitution ade-
quate to the exigencies of government and the preservation of
the union.”96 Without specifically citing the Congressional reso-
lution, on March 6th, New York’s legislature appointed dele-
gates with the verbatim language used in the resolution.97 Con-
sequently, the Empire State’s delegates were under the same
instructions as those from Massachusetts.
South Carolina’s legislature ignored the language proffered
by Congress. It essentially returned to the Virginia model with
an enactment entitled “for the purpose of revising the foederal
constitution.”98 On March 8th, its delegates were given the au-
thority “to join” with other delegates “in devising and discuss-
ing all such alterations, clauses, articles and provisions as m
92. 1 ELLIOT’S DEBATES, supra note 23, at 118.
93. Resolution Authorizing the Appointment of Delegates and Providing In-
structions for Them (Feb. 22, 1787), reprinted in 1 DHRC, supra note 4, at 205, 205.
94. House Substitute of 7 March for the Resolution of 22 February (Mar. 7, 1787)
reprinted in 1 DHRC, supra note 4, at 207, 207.
95. Id.
96. Id.
97. Assembly and Senate Authorize Election of Delegates (Feb. 26, 1787), reprint-
ed in 1 DHRC, supra note 4, at 209, 209.
98. Act Authorizing the Election of Delegates (Mar. 8, 1787), reprinted in
DHRC, supra note 4, at 213, 214.
81
76
Harvard Journal of Law & Public Policy
[Vol. 40
delphia Convention. There are two attributes that would be found
in a formal call that are completely absent here. First, the language
of the resolution would be addressed to the states. Second, Con-
gress would follow its normal formal protocol for submitting
measures for the consideration of the states. For example, when
Congress asked the states to ratify the amendment to the Articles
in the Impost of 1783, the language was directed to the states and
there was formal communication to the chief executives of each
state.88 There is no such language of invitation contained in the
February 21st resolution of Congress and there is no record of any
formal instruments of communication to the states inviting them
to send delegates to Philadelphia. When Virginia called the Phila-
delphia Convention, it had sent such communications.89 Congress
never did in this instance.
The absence of the formalities is strong evidence that Congress
was merely issuing its blessing on the convention planning al-
ready in progress at the initiative of Virginia and five other
states. Congress expressed its “opinion” that “it is expedient”
that a convention of delegates “be held.” On its face, it reads
more like an endorsement than a formal request to the states to
send delegates. Moreover, the question of the power of Congress
to issue such a formal call cannot be overlooked. There is noth-
ing in the text of the Articles of Confederation (particularly Arti-
cle XIII) that suggests that Congress had any power to actually
call a convention of states.90
However, the historical record demonstrates that the states
clearly believed that they could call conventions of states to dis-
cuss common problems. Natelson has catalogued ten such con-
ventions after the Declaration of Independence but prior to the
Annapolis Convention.91 Congress was basically a bystander in
this process. Virginia did not seek the approval of Congress when
it invited the other states to the conventions held in Annapolis
and Philadelphia. It is clear that the states believed, as the text of
the Annapolis report makes plain, that notifying Congress arose
88. 24 JOURNALS OF CONGRESS, supra note 70, at 258.
89. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
90. See supra note 22 and accompanying text.
91. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitu-
tion’s “Convention for Proposing Amendments”, 65 FLA. L. REV. 615 (2013).
No. 1]
Defying Conventional Wisdom 77
“from motives of respect”92 rather than from any sense that it was
necessary to seek congressional approval.
Calling a convention is a formal invitation to participate in
an official gathering. A call to the states to take action at the
request of Congress would have said so directly and would
have been sent to the states with appropriate formalities. All
such indicia of a formal call are missing from the February 21st
resolution but are clearly present in the measure enacted the
previous fall by the Virginia legislature.
4. The Six Remaining States Appoint Delegates
A February 22nd resolution by the Massachusetts legislature
was enacted without knowledge that Congress had acted the
prior day.93 It was repealed and replaced with another enact-
ment on March 7th.94 This resolution adopted the operative
paragraph from the congressional resolution.95 Thus, Massa-
chusetts delegates were instructed to “solely” amend the Arti-
cles of Confederation to “render the federal constitution ade-
quate to the exigencies of government and the preservation of
the union.”96 Without specifically citing the Congressional reso-
lution, on March 6th, New York’s legislature appointed dele-
gates with the verbatim language used in the resolution.97 Con-
sequently, the Empire State’s delegates were under the same
instructions as those from Massachusetts.
South Carolina’s legislature ignored the language proffered
by Congress. It essentially returned to the Virginia model with
an enactment entitled “for the purpose of revising the foederal
constitution.”98 On March 8th, its delegates were given the au-
thority “to join” with other delegates “in devising and discuss-
ing all such alterations, clauses, articles and provisions as may
92. 1 ELLIOT’S DEBATES, supra note 23, at 118.
93. Resolution Authorizing the Appointment of Delegates and Providing In-
structions for Them (Feb. 22, 1787), reprinted in 1 DHRC, supra note 4, at 205, 205.
94. House Substitute of 7 March for the Resolution of 22 February (Mar. 7, 1787),
reprinted in 1 DHRC, supra note 4, at 207, 207.
95. Id.
96. Id.
97. Assembly and Senate Authorize Election of Delegates (Feb. 26, 1787), reprint-
ed in 1 DHRC, supra note 4, at 209, 209.
98. Act Authorizing the Election of Delegates (Mar. 8, 1787), reprinted in 1
DHRC, supra note 4, at 213, 214.
76
Harvard Journal of Law & Public Policy
[Vol. 40
delphia Convention. There are two attributes that would be found
in a formal call that are completely absent here. First, the language
of the resolution would be addressed to the states. Second, Con-
gress would follow its normal formal protocol for submitting
measures for the consideration of the states. For example, when
Congress asked the states to ratify the amendment to the Articles
in the Impost of 1783, the language was directed to the states and
there was formal communication to the chief executives of each
state.88 There is no such language of invitation contained in the
February 21st resolution of Congress and there is no record of any
formal instruments of communication to the states inviting them
to send delegates to Philadelphia. When Virginia called the Phila-
delphia Convention, it had sent such communications.89 Congress
never did in this instance.
The absence of the formalities is strong evidence that Congress
was merely issuing its blessing on the convention planning al-
ready in progress at the initiative of Virginia and five other
states. Congress expressed its “opinion” that “it is expedient”
that a convention of delegates “be held.” On its face, it reads
more like an endorsement than a formal request to the states to
send delegates. Moreover, the question of the power of Congress
to issue such a formal call cannot be overlooked. There is noth-
ing in the text of the Articles of Confederation (particularly Arti-
cle XIII) that suggests that Congress had any power to actually
call a convention of states.90
However, the historical record demonstrates that the states
clearly believed that they could call conventions of states to dis-
cuss common problems. Natelson has catalogued ten such con-
ventions after the Declaration of Independence but prior to the
Annapolis Convention.91 Congress was basically a bystander in
this process. Virginia did not seek the approval of Congress when
it invited the other states to the conventions held in Annapolis
and Philadelphia. It is clear that the states believed, as the text of
the Annapolis report makes plain, that notifying Congress arose
88. 24 JOURNALS OF CONGRESS, supra note 70, at 258.
89. Virginia’s Appointment of Delegates to the Constitutional Convention (Nov.
23, 1786), reprinted in 8 DHRC, supra note 4, at 540, 540.
90. See supra note 22 and accompanying text.
91. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitu-
tion’s “Convention for Proposing Amendments”, 65 FLA. L. REV. 615 (2013).
No. 1]
Defying Conventional Wisdom
“from motives of respect”92 rather than from any sense that it w
necessary to seek congressional approval.
Calling a convention is a formal invitation to participate i
an official gathering. A call to the states to take action at t
request of Congress would have said so directly and would
have been sent to the states with appropriate formalities. A
such indicia of a formal call are missing from the February 21st
resolution but are clearly present in the measure enacted t
previous fall by the Virginia legislature.
4. The Six Remaining States Appoint Delegates
A February 22nd resolution by the Massachusetts legislature
was enacted without knowledge that Congress had acted t
prior day.93 It was repealed and replaced with another ena
ment on March 7th.94 This resolution adopted the operative
paragraph from the congressional resolution.95 Thus, Massa-
chusetts delegates were instructed to “solely” amend the Arti-
cles of Confederation to “render the federal constitution ade-
quate to the exigencies of government and the preservation of
the union.”96 Without specifically citing the Congressional reso-
lution, on March 6th, New York’s legislature appointed dele-
gates with the verbatim language used in the resolution.97 Con-
sequently, the Empire State’s delegates were under the same
instructions as those from Massachusetts.
South Carolina’s legislature ignored the language proffered
by Congress. It essentially returned to the Virginia model with
an enactment entitled “for the purpose of revising the foederal
constitution.”98 On March 8th, its delegates were given the au-
thority “to join” with other delegates “in devising and discuss-
ing all such alterations, clauses, articles and provisions as m
92. 1 ELLIOT’S DEBATES, supra note 23, at 118.
93. Resolution Authorizing the Appointment of Delegates and Providing In-
structions for Them (Feb. 22, 1787), reprinted in 1 DHRC, supra note 4, at 205, 205.
94. House Substitute of 7 March for the Resolution of 22 February (Mar. 7, 1787)
reprinted in 1 DHRC, supra note 4, at 207, 207.
95. Id.
96. Id.
97. Assembly and Senate Authorize Election of Delegates (Feb. 26, 1787), reprint-
ed in 1 DHRC, supra note 4, at 209, 209.
98. Act Authorizing the Election of Delegates (Mar. 8, 1787), reprinted in
DHRC, supra note 4, at 213, 214.
82
78
Harvard Journal of Law & Public Policy
[Vol. 40
be thought necessary to render the foederal constitution entire-
ly adequate to the actual situation and future good government
of the confederated states.”99
Connecticut was the second state to formally acknowledge
the Congressional measure in its appointment of delegates. Its
enactment recited that the act of Congress was a recommenda-
tion.100 The measure specified that the delegates were “author-
ized and impowered . . . to confer with [other delegates] for the
Purposes mentioned in the sd [sic] Act of Congress.”101 Howev-
er, it granted further authority under a different formula. Its
delegates were “duly empowered” to discuss and report “such
Alterations and Provisions, agreeable to the general Principles
of Republican Government, as they shall think proper, to ren-
der the foederal Constitution adequate to the Exigencies of
Government, and the Preservation of the Union.”102 Thus, the
final phrasing is essentially the same as the Virginia formula.
Connecticut appears to have been covering both alternatives
when it finally acted on May 17th—two days after the sched-
uled start of the Convention.
After prolonged discord between the House and Senate, on
May 26th, Maryland appointed delegates authorized to meet
and negotiate “for the purpose of revising the federal sys-
tem.”103 Working with other states, the delegates were sanc-
tioned to join in “considering such alterations, and further pro-
visions, as may be necessary to render the federal constitution
adequate for the exigencies of the union.”104 Following the Vir-
ginia model, New Hampshire was the twelfth and final state to
authorize delegates on June 27th—a month after the Convention
was in full operation.105 Its delegates were to join with other states
“in devising and discussing all such alterations and further provi-
99. Id.
100. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 215.
101. Id. at 216.
102. Id.
103. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 222.
104. Id.
105. Act Electing and Empowering Delegates (June 27, 1787), reprinted in 1
DHRC, supra note 4, at 223, 223.
No. 1]
Defying Conventional Wisdom 79
sions as to render the federal constitution adequate to the exigen-
cies of the Union.”106
Like the first six states, each of the final six states imposed an in-
ternal quorum rule that was strictly observed by the Convention.
Massachusetts and South Carolina required the presence of at
least three delegates.107 New Hampshire permitted two delegates
to represent the state.108 Connecticut and Maryland allowed one
delegate to suffice.109 New York, in its ongoing obstinate ap-
proach, appointed three delegates but made no provision for any
lesser number to suffice to cast the state’s vote.110 Every other state
appointed more delegates than the minimum number required by
that state’s quorum rule.
Only two states, Massachusetts and Connecticut, actually cit-
ed the Congressional resolution in their formal appointment of
delegates.111 Connecticut described the Congressional resolu-
tion as a “recommend[ation]” but did not limit its delegates to
the merely amending the Articles of Confederation.112 New
York and Massachusetts appointed delegates employing the
verbatim language of the Congressional resolution.113 From the
context, however, it was clear to all that these delegates were to
“solely amend the Articles” as specified by their states—not
because of the language from Congress.
On the other hand, both Pennsylvania and Delaware spe-
cifically cite the Virginia resolution as the impetus for their
106. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
107. 3 RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787, 584 (Max Far-
rand ed., 1st ed. 1911) [hereinafter FARRAND’S RECORDS].
108.
Id. at 572–73.
109.
Id. at 585–86.
110.
Id. at 579–81.
111. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Act Electing and Empowering
Delegates (May 17, 1787), reprinted in 1 DHRC, supra note 4, at 215, 215.
112. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 215.
113. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Assembly and Senate Author-
ize Election of Delegates (Feb. 26, 1787), reprinted in 1 DHRC, supra note 4, at 209,
209.
78
Harvard Journal of Law & Public Policy
[Vol. 40
be thought necessary to render the foederal constitution entire-
ly adequate to the actual situation and future good government
of the confederated states.”99
Connecticut was the second state to formally acknowledge
the Congressional measure in its appointment of delegates. Its
enactment recited that the act of Congress was a recommenda-
tion.100 The measure specified that the delegates were “author-
ized and impowered . . . to confer with [other delegates] for the
Purposes mentioned in the sd [sic] Act of Congress.”101 Howev-
er, it granted further authority under a different formula. Its
delegates were “duly empowered” to discuss and report “such
Alterations and Provisions, agreeable to the general Principles
of Republican Government, as they shall think proper, to ren-
der the foederal Constitution adequate to the Exigencies of
Government, and the Preservation of the Union.”102 Thus, the
final phrasing is essentially the same as the Virginia formula.
Connecticut appears to have been covering both alternatives
when it finally acted on May 17th—two days after the sched-
uled start of the Convention.
After prolonged discord between the House and Senate, on
May 26th, Maryland appointed delegates authorized to meet
and negotiate “for the purpose of revising the federal sys-
tem.”103 Working with other states, the delegates were sanc-
tioned to join in “considering such alterations, and further pro-
visions, as may be necessary to render the federal constitution
adequate for the exigencies of the union.”104 Following the Vir-
ginia model, New Hampshire was the twelfth and final state to
authorize delegates on June 27th—a month after the Convention
was in full operation.105 Its delegates were to join with other states
“in devising and discussing all such alterations and further provi-
99. Id.
100. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 215.
101. Id. at 216.
102. Id.
103. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 222.
104. Id.
105. Act Electing and Empowering Delegates (June 27, 1787), reprinted in 1
DHRC, supra note 4, at 223, 223.
No. 1]
Defying Conventional Wisdom
sions as to render the federal constitution adequate to the exige
cies of the Union.”106
Like the first six states, each of the final six states imposed an i
ternal quorum rule that was strictly observed by the Conventi
Massachusetts and South Carolina required the presence of at
least three delegates.107 New Hampshire permitted two delega
to represent the state.108 Connecticut and Maryland allowed o
delegate to suffice.109 New York, in its ongoing obstinate ap
proach, appointed three delegates but made no provision for any
lesser number to suffice to cast the state’s vote.110 Every other state
appointed more delegates than the minimum number required by
that state’s quorum rule.
Only two states, Massachusetts and Connecticut, actually cit-
ed the Congressional resolution in their formal appointment of
delegates.111 Connecticut described the Congressional resolu-
tion as a “recommend[ation]” but did not limit its delegates to
the merely amending the Articles of Confederation.112 New
York and Massachusetts appointed delegates employing the
verbatim language of the Congressional resolution.113 From the
context, however, it was clear to all that these delegates were
“solely amend the Articles” as specified by their states—n
because of the language from Congress.
On the other hand, both Pennsylvania and Delaware sp
cifically cite the Virginia resolution as the impetus for th
106. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
107. 3 RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787, 584 (Max Far-
rand ed., 1st ed. 1911) [hereinafter FARRAND’S RECORDS].
108.
Id. at 572–73.
109.
Id. at 585–86.
110.
Id. at 579–81.
111. House Substitute of 7 March for the Resolution of 22 February (Mar.
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Act Electing and Empoweri
Delegates (May 17, 1787), reprinted in 1 DHRC, supra note 4, at 215, 215.
112. Act Electing and Empowering Delegates (May 17, 1787), reprinted in
DHRC, supra note 4, at 215, 215.
113. House Substitute of 7 March for the Resolution of 22 February (Mar.
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Assembly and Senate Aut
ize Election of Delegates (Feb. 26, 1787), reprinted in 1 DHRC, supra note 4, at
209.
83
78
Harvard Journal of Law & Public Policy
[Vol. 40
be thought necessary to render the foederal constitution entire-
ly adequate to the actual situation and future good government
of the confederated states.”99
Connecticut was the second state to formally acknowledge
the Congressional measure in its appointment of delegates. Its
enactment recited that the act of Congress was a recommenda-
tion.100 The measure specified that the delegates were “author-
ized and impowered . . . to confer with [other delegates] for the
Purposes mentioned in the sd [sic] Act of Congress.”101 Howev-
er, it granted further authority under a different formula. Its
delegates were “duly empowered” to discuss and report “such
Alterations and Provisions, agreeable to the general Principles
of Republican Government, as they shall think proper, to ren-
der the foederal Constitution adequate to the Exigencies of
Government, and the Preservation of the Union.”102 Thus, the
final phrasing is essentially the same as the Virginia formula.
Connecticut appears to have been covering both alternatives
when it finally acted on May 17th—two days after the sched-
uled start of the Convention.
After prolonged discord between the House and Senate, on
May 26th, Maryland appointed delegates authorized to meet
and negotiate “for the purpose of revising the federal sys-
tem.”103 Working with other states, the delegates were sanc-
tioned to join in “considering such alterations, and further pro-
visions, as may be necessary to render the federal constitution
adequate for the exigencies of the union.”104 Following the Vir-
ginia model, New Hampshire was the twelfth and final state to
authorize delegates on June 27th—a month after the Convention
was in full operation.105 Its delegates were to join with other states
“in devising and discussing all such alterations and further provi-
99. Id.
100. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 215.
101. Id. at 216.
102. Id.
103. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 222.
104. Id.
105. Act Electing and Empowering Delegates (June 27, 1787), reprinted in 1
DHRC, supra note 4, at 223, 223.
No. 1]
Defying Conventional Wisdom 79
sions as to render the federal constitution adequate to the exigen-
cies of the Union.”106
Like the first six states, each of the final six states imposed an in-
ternal quorum rule that was strictly observed by the Convention.
Massachusetts and South Carolina required the presence of at
least three delegates.107 New Hampshire permitted two delegates
to represent the state.108 Connecticut and Maryland allowed one
delegate to suffice.109 New York, in its ongoing obstinate ap-
proach, appointed three delegates but made no provision for any
lesser number to suffice to cast the state’s vote.110 Every other state
appointed more delegates than the minimum number required by
that state’s quorum rule.
Only two states, Massachusetts and Connecticut, actually cit-
ed the Congressional resolution in their formal appointment of
delegates.111 Connecticut described the Congressional resolu-
tion as a “recommend[ation]” but did not limit its delegates to
the merely amending the Articles of Confederation.112 New
York and Massachusetts appointed delegates employing the
verbatim language of the Congressional resolution.113 From the
context, however, it was clear to all that these delegates were to
“solely amend the Articles” as specified by their states—not
because of the language from Congress.
On the other hand, both Pennsylvania and Delaware spe-
cifically cite the Virginia resolution as the impetus for their
106. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
107. 3 RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787, 584 (Max Far-
rand ed., 1st ed. 1911) [hereinafter FARRAND’S RECORDS].
108.
Id. at 572–73.
109.
Id. at 585–86.
110.
Id. at 579–81.
111. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Act Electing and Empowering
Delegates (May 17, 1787), reprinted in 1 DHRC, supra note 4, at 215, 215.
112. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 215.
113. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Assembly and Senate Author-
ize Election of Delegates (Feb. 26, 1787), reprinted in 1 DHRC, supra note 4, at 209,
209.
78
Harvard Journal of Law & Public Policy
[Vol. 40
be thought necessary to render the foederal constitution entire-
ly adequate to the actual situation and future good government
of the confederated states.”99
Connecticut was the second state to formally acknowledge
the Congressional measure in its appointment of delegates. Its
enactment recited that the act of Congress was a recommenda-
tion.100 The measure specified that the delegates were “author-
ized and impowered . . . to confer with [other delegates] for the
Purposes mentioned in the sd [sic] Act of Congress.”101 Howev-
er, it granted further authority under a different formula. Its
delegates were “duly empowered” to discuss and report “such
Alterations and Provisions, agreeable to the general Principles
of Republican Government, as they shall think proper, to ren-
der the foederal Constitution adequate to the Exigencies of
Government, and the Preservation of the Union.”102 Thus, the
final phrasing is essentially the same as the Virginia formula.
Connecticut appears to have been covering both alternatives
when it finally acted on May 17th—two days after the sched-
uled start of the Convention.
After prolonged discord between the House and Senate, on
May 26th, Maryland appointed delegates authorized to meet
and negotiate “for the purpose of revising the federal sys-
tem.”103 Working with other states, the delegates were sanc-
tioned to join in “considering such alterations, and further pro-
visions, as may be necessary to render the federal constitution
adequate for the exigencies of the union.”104 Following the Vir-
ginia model, New Hampshire was the twelfth and final state to
authorize delegates on June 27th—a month after the Convention
was in full operation.105 Its delegates were to join with other states
“in devising and discussing all such alterations and further provi-
99. Id.
100. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 215.
101. Id. at 216.
102. Id.
103. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 222.
104. Id.
105. Act Electing and Empowering Delegates (June 27, 1787), reprinted in 1
DHRC, supra note 4, at 223, 223.
No. 1]
Defying Conventional Wisdom
sions as to render the federal constitution adequate to the exige
cies of the Union.”106
Like the first six states, each of the final six states imposed an i
ternal quorum rule that was strictly observed by the Conventi
Massachusetts and South Carolina required the presence of at
least three delegates.107 New Hampshire permitted two delega
to represent the state.108 Connecticut and Maryland allowed o
delegate to suffice.109 New York, in its ongoing obstinate ap
proach, appointed three delegates but made no provision for any
lesser number to suffice to cast the state’s vote.110 Every other state
appointed more delegates than the minimum number required by
that state’s quorum rule.
Only two states, Massachusetts and Connecticut, actually cit-
ed the Congressional resolution in their formal appointment of
delegates.111 Connecticut described the Congressional resolu-
tion as a “recommend[ation]” but did not limit its delegates to
the merely amending the Articles of Confederation.112 New
York and Massachusetts appointed delegates employing the
verbatim language of the Congressional resolution.113 From the
context, however, it was clear to all that these delegates were
“solely amend the Articles” as specified by their states—n
because of the language from Congress.
On the other hand, both Pennsylvania and Delaware sp
cifically cite the Virginia resolution as the impetus for th
106. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted
1 DHRC, supra note 4, at 223, 223.
107. 3 RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787, 584 (Max Far-
rand ed., 1st ed. 1911) [hereinafter FARRAND’S RECORDS].
108.
Id. at 572–73.
109.
Id. at 585–86.
110.
Id. at 579–81.
111. House Substitute of 7 March for the Resolution of 22 February (Mar.
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Act Electing and Empoweri
Delegates (May 17, 1787), reprinted in 1 DHRC, supra note 4, at 215, 215.
112. Act Electing and Empowering Delegates (May 17, 1787), reprinted in
DHRC, supra note 4, at 215, 215.
113. House Substitute of 7 March for the Resolution of 22 February (Mar.
1787), reprinted in 1 DHRC, supra note 4, at 207, 207; Assembly and Senate Aut
ize Election of Delegates (Feb. 26, 1787), reprinted in 1 DHRC, supra note 4, at
209.
84
80
Harvard Journal of Law & Public Policy
[Vol. 40
action.114 Moreover, in the official communications between
the Maryland House and Senate, the Senate cited the Virgin-
ia resolution as the basis for action by the Maryland legisla-
ture.115 Nine states essentially followed the Virginia language
in the grant of authority to their delegates. Connecticut
adopted broad language of its own creation. One thing is
clear about all twelve states: every legislature acted on the
premise that it was the body that would decide what author-
ity it would give its own delegates.
B. Arguments about Delegates’ Authority at the Constitutional
Convention
On the second Monday in May, in the eleventh year of the
independence of the United States of America, “in virtue of ap-
pointments from their respective States, sundry Deputies to the
foederal-Convention appeared.”116 No quorum of states mate-
rialized until May 25th.117 On that day, the first order of busi-
ness was the election of George Washington as President of the
Convention followed by the election of a secretary.118 The next
order of business was for each state to produce its creden-
tials.119 The credentials of the seven states in attendance were
read.120 We know this from the following entry:
On reading the Credentials of the deputies it was noticed
that those from Delaware were prohibited from changing
the Article in the Confederation establishing an equality of
votes among the states.121
Through the remainder of the Convention, upon the arrival
of a new state, or a new delegate, the record repeatedly reflects
that the credentials were produced and read.122 The Delaware
114. Act Electing and Empowering Delegates (Dec. 30, 1787), reprinted in 1
DHRC, supra note 4, 199, 199; Act Electing and Empowering Delegates (Feb. 3,
1787), reprinted in 1 DHRC, supra note 4, at 203, 203.
115. Senate Message to House Objecting to Adjournment (Jan. 20, 1787), reprint-
ed in 1 DHRC, supra note 4, at 217, 217–18.
116. 1 FARRAND’S RECORDS, supra note 107, at 1.
117. Id.
118. Id. at 2.
119. Id.
120. Id.
121. Id. at 4.
122. See id. at 7, 45, 62, 76, 115, 334, 353.
No. 1]
Defying Conventional Wisdom 81
example indicates clearly that the Convention understood that
these deputies were agents of their state and subject to the in-
structions contained in their credentials.
On May 29th, 1789, Edmund Randolph introduced his plan
for a truly national government.123 It was met with immediate
resistance on various grounds. General Charles Cotesworth
Pinckney, a delegate from South Carolina, “expressed a doubt
whether the act of Congs. recommending the Convention, or
the Commissions of the deputies to it, could authorize a dis-
cussion of a System founded on different principles from the
federal Constitution.”124 Elbridge Gerry, from Massachusetts,
expressed the same doubt. “The commission from Massachu-
setts empowers the deputies to proceed agreeably to the rec-
ommendation of Congress. This [sic] the foundation of the
convention. If we have a right to pass this resolution we have a
right to annihilate the confederation.”125 Both objectors—who
became leading Anti-Federalists after the Convention—
described the act of Congress as a “recommendation.”126 Both
cited their state commissions as the formal source of their au-
thority.127 There was no motion made and no vote taken in re-
sponse to these arguments. On June 7th, George Mason, who
ultimately refused to sign the Constitution and became a lead-
ing Anti-Federalist,128 described the authority of the convention
somewhat more broadly. The delegates were “appointed for
the special purpose of revising and amending the federal con-
stitution, so as to obtain and preserve the important objects for
which it was instituted.”129
William Paterson rose on June 9th in opposition to the pro-
posal to adopt a system of proportional representation for the
legislative chamber. He contended that the Convention “was
formed in pursuance of an Act of Congs. that this act was recit-
ed in several of the Commissions, particularly that of Massts.
123. Id. at 20.
124. Id. at 34.
125. Id. at 43.
126. Id. at 41, 43.
127. Id. at 34, 43.
128. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 811–813.
129. 1 FARRAND’S RECORDS, supra note 107, at 160–61.
80
Harvard Journal of Law & Public Policy
[Vol. 40
action.114 Moreover, in the official communications between
the Maryland House and Senate, the Senate cited the Virgin-
ia resolution as the basis for action by the Maryland legisla-
ture.115 Nine states essentially followed the Virginia language
in the grant of authority to their delegates. Connecticut
adopted broad language of its own creation. One thing is
clear about all twelve states: every legislature acted on the
premise that it was the body that would decide what author-
ity it would give its own delegates.
B. Arguments about Delegates’ Authority at the Constitutional
Convention
On the second Monday in May, in the eleventh year of the
independence of the United States of America, “in virtue of ap-
pointments from their respective States, sundry Deputies to the
foederal-Convention appeared.”116 No quorum of states mate-
rialized until May 25th.117 On that day, the first order of busi-
ness was the election of George Washington as President of the
Convention followed by the election of a secretary.118 The next
order of business was for each state to produce its creden-
tials.119 The credentials of the seven states in attendance were
read.120 We know this from the following entry:
On reading the Credentials of the deputies it was noticed
that those from Delaware were prohibited from changing
the Article in the Confederation establishing an equality of
votes among the states.121
Through the remainder of the Convention, upon the arrival
of a new state, or a new delegate, the record repeatedly reflects
that the credentials were produced and read.122 The Delaware
114. Act Electing and Empowering Delegates (Dec. 30, 1787), reprinted in 1
DHRC, supra note 4, 199, 199; Act Electing and Empowering Delegates (Feb. 3,
1787), reprinted in 1 DHRC, supra note 4, at 203, 203.
115. Senate Message to House Objecting to Adjournment (Jan. 20, 1787), reprint-
ed in 1 DHRC, supra note 4, at 217, 217–18.
116. 1 FARRAND’S RECORDS, supra note 107, at 1.
117. Id.
118. Id. at 2.
119. Id.
120. Id.
121. Id. at 4.
122. See id. at 7, 45, 62, 76, 115, 334, 353.
No. 1]
Defying Conventional Wisdom
example indicates clearly that the Convention understood that
these deputies were agents of their state and subject to the
structions contained in their credentials.
On May 29th, 1789, Edmund Randolph introduced his pla
for a truly national government.123 It was met with immedia
resistance on various grounds. General Charles Coteswo
Pinckney, a delegate from South Carolina, “expressed a doubt
whether the act of Congs. recommending the Convention, or
the Commissions of the deputies to it, could authorize a dis-
cussion of a System founded on different principles from t
federal Constitution.”124 Elbridge Gerry, from Massachusetts,
expressed the same doubt. “The commission from Massachu-
setts empowers the deputies to proceed agreeably to the rec-
ommendation of Congress. This [sic] the foundation of the
convention. If we have a right to pass this resolution we hav
right to annihilate the confederation.”125 Both objectors—who
became leading Anti-Federalists after the Convention—
described the act of Congress as a “recommendation.”126 Both
cited their state commissions as the formal source of their au-
thority.127 There was no motion made and no vote taken in r
sponse to these arguments. On June 7th, George Mason, who
ultimately refused to sign the Constitution and became a lea
ing Anti-Federalist,128 described the authority of the convention
somewhat more broadly. The delegates were “appointed
the special purpose of revising and amending the federal con-
stitution, so as to obtain and preserve the important objects f
which it was instituted.”129
William Paterson rose on June 9th in opposition to the pro-
posal to adopt a system of proportional representation for the
legislative chamber. He contended that the Convention “w
formed in pursuance of an Act of Congs. that this act was recit-
ed in several of the Commissions, particularly that of Mass
123. Id. at 20.
124. Id. at 34.
125. Id. at 43.
126. Id. at 41, 43.
127. Id. at 34, 43.
128. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 811–813.
129. 1 FARRAND’S RECORDS, supra note 107, at 160–61.
85
80
Harvard Journal of Law & Public Policy
[Vol. 40
action.114 Moreover, in the official communications between
the Maryland House and Senate, the Senate cited the Virgin-
ia resolution as the basis for action by the Maryland legisla-
ture.115 Nine states essentially followed the Virginia language
in the grant of authority to their delegates. Connecticut
adopted broad language of its own creation. One thing is
clear about all twelve states: every legislature acted on the
premise that it was the body that would decide what author-
ity it would give its own delegates.
B. Arguments about Delegates’ Authority at the Constitutional
Convention
On the second Monday in May, in the eleventh year of the
independence of the United States of America, “in virtue of ap-
pointments from their respective States, sundry Deputies to the
foederal-Convention appeared.”116 No quorum of states mate-
rialized until May 25th.117 On that day, the first order of busi-
ness was the election of George Washington as President of the
Convention followed by the election of a secretary.118 The next
order of business was for each state to produce its creden-
tials.119 The credentials of the seven states in attendance were
read.120 We know this from the following entry:
On reading the Credentials of the deputies it was noticed
that those from Delaware were prohibited from changing
the Article in the Confederation establishing an equality of
votes among the states.121
Through the remainder of the Convention, upon the arrival
of a new state, or a new delegate, the record repeatedly reflects
that the credentials were produced and read.122 The Delaware
114. Act Electing and Empowering Delegates (Dec. 30, 1787), reprinted in 1
DHRC, supra note 4, 199, 199; Act Electing and Empowering Delegates (Feb. 3,
1787), reprinted in 1 DHRC, supra note 4, at 203, 203.
115. Senate Message to House Objecting to Adjournment (Jan. 20, 1787), reprint-
ed in 1 DHRC, supra note 4, at 217, 217–18.
116. 1 FARRAND’S RECORDS, supra note 107, at 1.
117. Id.
118. Id. at 2.
119. Id.
120. Id.
121. Id. at 4.
122. See id. at 7, 45, 62, 76, 115, 334, 353.
No. 1]
Defying Conventional Wisdom 81
example indicates clearly that the Convention understood that
these deputies were agents of their state and subject to the in-
structions contained in their credentials.
On May 29th, 1789, Edmund Randolph introduced his plan
for a truly national government.123 It was met with immediate
resistance on various grounds. General Charles Cotesworth
Pinckney, a delegate from South Carolina, “expressed a doubt
whether the act of Congs. recommending the Convention, or
the Commissions of the deputies to it, could authorize a dis-
cussion of a System founded on different principles from the
federal Constitution.”124 Elbridge Gerry, from Massachusetts,
expressed the same doubt. “The commission from Massachu-
setts empowers the deputies to proceed agreeably to the rec-
ommendation of Congress. This [sic] the foundation of the
convention. If we have a right to pass this resolution we have a
right to annihilate the confederation.”125 Both objectors—who
became leading Anti-Federalists after the Convention—
described the act of Congress as a “recommendation.”126 Both
cited their state commissions as the formal source of their au-
thority.127 There was no motion made and no vote taken in re-
sponse to these arguments. On June 7th, George Mason, who
ultimately refused to sign the Constitution and became a lead-
ing Anti-Federalist,128 described the authority of the convention
somewhat more broadly. The delegates were “appointed for
the special purpose of revising and amending the federal con-
stitution, so as to obtain and preserve the important objects for
which it was instituted.”129
William Paterson rose on June 9th in opposition to the pro-
posal to adopt a system of proportional representation for the
legislative chamber. He contended that the Convention “was
formed in pursuance of an Act of Congs. that this act was recit-
ed in several of the Commissions, particularly that of Massts.
123. Id. at 20.
124. Id. at 34.
125. Id. at 43.
126. Id. at 41, 43.
127. Id. at 34, 43.
128. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 811–813.
129. 1 FARRAND’S RECORDS, supra note 107, at 160–61.
80
Harvard Journal of Law & Public Policy
[Vol. 40
action.114 Moreover, in the official communications between
the Maryland House and Senate, the Senate cited the Virgin-
ia resolution as the basis for action by the Maryland legisla-
ture.115 Nine states essentially followed the Virginia language
in the grant of authority to their delegates. Connecticut
adopted broad language of its own creation. One thing is
clear about all twelve states: every legislature acted on the
premise that it was the body that would decide what author-
ity it would give its own delegates.
B. Arguments about Delegates’ Authority at the Constitutional
Convention
On the second Monday in May, in the eleventh year of the
independence of the United States of America, “in virtue of ap-
pointments from their respective States, sundry Deputies to the
foederal-Convention appeared.”116 No quorum of states mate-
rialized until May 25th.117 On that day, the first order of busi-
ness was the election of George Washington as President of the
Convention followed by the election of a secretary.118 The next
order of business was for each state to produce its creden-
tials.119 The credentials of the seven states in attendance were
read.120 We know this from the following entry:
On reading the Credentials of the deputies it was noticed
that those from Delaware were prohibited from changing
the Article in the Confederation establishing an equality of
votes among the states.121
Through the remainder of the Convention, upon the arrival
of a new state, or a new delegate, the record repeatedly reflects
that the credentials were produced and read.122 The Delaware
114. Act Electing and Empowering Delegates (Dec. 30, 1787), reprinted in 1
DHRC, supra note 4, 199, 199; Act Electing and Empowering Delegates (Feb. 3,
1787), reprinted in 1 DHRC, supra note 4, at 203, 203.
115. Senate Message to House Objecting to Adjournment (Jan. 20, 1787), reprint-
ed in 1 DHRC, supra note 4, at 217, 217–18.
116. 1 FARRAND’S RECORDS, supra note 107, at 1.
117. Id.
118. Id. at 2.
119. Id.
120. Id.
121. Id. at 4.
122. See id. at 7, 45, 62, 76, 115, 334, 353.
No. 1]
Defying Conventional Wisdom
example indicates clearly that the Convention understood that
these deputies were agents of their state and subject to the
structions contained in their credentials.
On May 29th, 1789, Edmund Randolph introduced his pla
for a truly national government.123 It was met with immedia
resistance on various grounds. General Charles Coteswo
Pinckney, a delegate from South Carolina, “expressed a doubt
whether the act of Congs. recommending the Convention, or
the Commissions of the deputies to it, could authorize a dis-
cussion of a System founded on different principles from t
federal Constitution.”124 Elbridge Gerry, from Massachusetts,
expressed the same doubt. “The commission from Massachu-
setts empowers the deputies to proceed agreeably to the rec-
ommendation of Congress. This [sic] the foundation of the
convention. If we have a right to pass this resolution we hav
right to annihilate the confederation.”125 Both objectors—who
became leading Anti-Federalists after the Convention—
described the act of Congress as a “recommendation.”126 Both
cited their state commissions as the formal source of their au-
thority.127 There was no motion made and no vote taken in r
sponse to these arguments. On June 7th, George Mason, who
ultimately refused to sign the Constitution and became a lea
ing Anti-Federalist,128 described the authority of the convention
somewhat more broadly. The delegates were “appointed
the special purpose of revising and amending the federal con-
stitution, so as to obtain and preserve the important objects f
which it was instituted.”129
William Paterson rose on June 9th in opposition to the pro-
posal to adopt a system of proportional representation for the
legislative chamber. He contended that the Convention “w
formed in pursuance of an Act of Congs. that this act was recit-
ed in several of the Commissions, particularly that of Mass
123. Id. at 20.
124. Id. at 34.
125. Id. at 43.
126. Id. at 41, 43.
127. Id. at 34, 43.
128. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 811–813.
129. 1 FARRAND’S RECORDS, supra note 107, at 160–61.
86
82
Harvard Journal of Law & Public Policy
[Vol. 40
which he required to be read.”130 Of course, the formula created
by Congress was only followed precisely by New York and
Massachusetts. Paterson cleverly avoided asking for a reading
of his own New Jersey credentials, which contained a much
broader statement of authority.131 He was attempting to defeat
proportional representation, and he carefully selected the cre-
dentials he thought would bolster his political argument. Pat-
erson elaborated on his view of the delegates’ authority:
Our powers do not extend to the abolition of the State Gov-
ernments, and the Erection of a national Govt. —They only au-
thorise amendments in the present System, and have for yr. Ba-
sis the present Confederation which establishes the principle
that each State has an equal vote in Congress . . . .132
Six days later, Paterson introduced his well-known New Jer-
sey plan which contained nine points: (1) federal powers were
to be enlarged; (2) Congress should be given the power to tax;
(3) enforcement powers should be given to collect delinquen-
cies from the states; (4) Congress would appoint an executive;
(5) a federal judiciary would be created; (6) a supremacy clause
was included; (7) a process was created for admission of new
states; (8) a uniform rule of naturalization should be adopted in
each state; and (9) full faith and credit observed between the
states with regard to criminal convictions.133
The New Jersey Plan was no minor revision of the Articles of
Confederation. It contained a radical expansion of power com-
pared with the existing system. Paterson did not include any
change in the system of voting in Congress. However, Congress
would remain one-state, one-vote. And, he did not propose the
direct election of any branch of government by the people. If the
New Jersey Plan had formed the ultimate framework from the
Convention, it would have almost certainly required a compre-
hensive rewrite of the Articles of Confederation—a “whole new
document”—rather than discrete amendments. Paterson and the
other Anti-Federalists did not object to massive changes or a new
document; rather they contended that the delegates were unau-
130. Id. at 177.
131. See Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786),
reprinted in 1 DHRC, supra note 4, at 196, 196.
132. 1 FARRAND’S RECORDS, supra note 107, at 184.
133. Id. at 242–45.
No. 1]
Defying Conventional Wisdom 83
thorized to adopt a different theory of government. When the ad-
vocates of the New Jersey Plan raised arguments about the scope
of the delegates’ authority, they were not making technical legal
arguments. Their contention was one of political philosophy. Any
plan that they deemed insufficiently “federalist” in character was
beyond the scope of their view of the delegates’ authority.
This is clearly shown by debates on the following day, Sat-
urday, June 16th. John Lansing, Jr., an ardent Anti-Federalist
from New York, asked for a reading of the first resolutions of
both Paterson’s plan and Randolph’s Virginia Plan.134 Lansing
contended that Paterson’s plan sustained the sovereignty of the
states, while Randolph’s destroyed state sovereignty.135 He
picked up Paterson’s earlier contention that the Convention
had the authority to adopt the New Jersey Plan but not the Vir-
ginia Plan.136 “He was decidedly of opinion that the power of
the Convention was restrained to amendments of a federal na-
ture, and having for their basis the Confederacy in being.”137
Then he asserted, “The Act of Congress[, t]he tenor of the Acts
of the States, the commissions produced by the several deputa-
tions all proved this.”138
While Lansing’s own New York credentials followed the lim-
ited formula of Congress, he was playing fast and loose with the
facts to assert that this was a fair description of the authority of
any other state except Massachusetts. However, one component
of his argument was more than disingenuous political spin. He
emphasized the concept that the Convention must propose a
federal, not national government.139 Every state’s credentials had
explicit language embracing the view that the revised govern-
ment should be federal in character since they were to deliver an
adequate “federal constitution.” Like Randolph’s plan, the Anti-
Federalists’ plan would have required a substantial rewrite of
the Articles of Confederation. Their continued objection was not
to the writing of a “whole new document” but to a form of gov-
ernment that they personally deemed to be insufficiently “feder-
al” in character. James Wilson took the floor immediately follow-
134. Id. at 249.
135. Id.
136. Id.
137. Id.
138. Id.
139. Id. at 246.
82
Harvard Journal of Law & Public Policy
[Vol. 40
which he required to be read.”130 Of course, the formula created
by Congress was only followed precisely by New York and
Massachusetts. Paterson cleverly avoided asking for a reading
of his own New Jersey credentials, which contained a much
broader statement of authority.131 He was attempting to defeat
proportional representation, and he carefully selected the cre-
dentials he thought would bolster his political argument. Pat-
erson elaborated on his view of the delegates’ authority:
Our powers do not extend to the abolition of the State Gov-
ernments, and the Erection of a national Govt. —They only au-
thorise amendments in the present System, and have for yr. Ba-
sis the present Confederation which establishes the principle
that each State has an equal vote in Congress . . . .132
Six days later, Paterson introduced his well-known New Jer-
sey plan which contained nine points: (1) federal powers were
to be enlarged; (2) Congress should be given the power to tax;
(3) enforcement powers should be given to collect delinquen-
cies from the states; (4) Congress would appoint an executive;
(5) a federal judiciary would be created; (6) a supremacy clause
was included; (7) a process was created for admission of new
states; (8) a uniform rule of naturalization should be adopted in
each state; and (9) full faith and credit observed between the
states with regard to criminal convictions.133
The New Jersey Plan was no minor revision of the Articles of
Confederation. It contained a radical expansion of power com-
pared with the existing system. Paterson did not include any
change in the system of voting in Congress. However, Congress
would remain one-state, one-vote. And, he did not propose the
direct election of any branch of government by the people. If the
New Jersey Plan had formed the ultimate framework from the
Convention, it would have almost certainly required a compre-
hensive rewrite of the Articles of Confederation—a “whole new
document”—rather than discrete amendments. Paterson and the
other Anti-Federalists did not object to massive changes or a new
document; rather they contended that the delegates were unau-
130. Id. at 177.
131. See Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786),
reprinted in 1 DHRC, supra note 4, at 196, 196.
132. 1 FARRAND’S RECORDS, supra note 107, at 184.
133. Id. at 242–45.
No. 1]
Defying Conventional Wisdom
thorized to adopt a different theory of government. When the ad-
vocates of the New Jersey Plan raised arguments about the scop
of the delegates’ authority, they were not making technical le
arguments. Their contention was one of political philosophy. Any
plan that they deemed insufficiently “federalist” in character w
beyond the scope of their view of the delegates’ authority.
This is clearly shown by debates on the following day, Sat
urday, June 16th. John Lansing, Jr., an ardent Anti-Federalist
from New York, asked for a reading of the first resolutions of
both Paterson’s plan and Randolph’s Virginia Plan.134 Lansi
contended that Paterson’s plan sustained the sovereignty of t
states, while Randolph’s destroyed state sovereignty.135 He
picked up Paterson’s earlier contention that the Conventi
had the authority to adopt the New Jersey Plan but not the Vir-
ginia Plan.136 “He was decidedly of opinion that the power o
the Convention was restrained to amendments of a federal na-
ture, and having for their basis the Confederacy in being.”137
Then he asserted, “The Act of Congress[, t]he tenor of the Acts
of the States, the commissions produced by the several deputa-
tions all proved this.”138
While Lansing’s own New York credentials followed the li
ited formula of Congress, he was playing fast and loose with the
facts to assert that this was a fair description of the authority of
any other state except Massachusetts. However, one component
of his argument was more than disingenuous political spin. He
emphasized the concept that the Convention must propose
federal, not national government.139 Every state’s credentials ha
explicit language embracing the view that the revised gove
ment should be federal in character since they were to deliver
adequate “federal constitution.” Like Randolph’s plan, the Ant
Federalists’ plan would have required a substantial rewrite
the Articles of Confederation. Their continued objection was
to the writing of a “whole new document” but to a form of
ernment that they personally deemed to be insufficiently “fe
al” in character. James Wilson took the floor immediately foll
134. Id. at 249.
135. Id.
136. Id.
137. Id.
138. Id.
139. Id. at 246.
87
82
Harvard Journal of Law & Public Policy
[Vol. 40
which he required to be read.”130 Of course, the formula created
by Congress was only followed precisely by New York and
Massachusetts. Paterson cleverly avoided asking for a reading
of his own New Jersey credentials, which contained a much
broader statement of authority.131 He was attempting to defeat
proportional representation, and he carefully selected the cre-
dentials he thought would bolster his political argument. Pat-
erson elaborated on his view of the delegates’ authority:
Our powers do not extend to the abolition of the State Gov-
ernments, and the Erection of a national Govt. —They only au-
thorise amendments in the present System, and have for yr. Ba-
sis the present Confederation which establishes the principle
that each State has an equal vote in Congress . . . .132
Six days later, Paterson introduced his well-known New Jer-
sey plan which contained nine points: (1) federal powers were
to be enlarged; (2) Congress should be given the power to tax;
(3) enforcement powers should be given to collect delinquen-
cies from the states; (4) Congress would appoint an executive;
(5) a federal judiciary would be created; (6) a supremacy clause
was included; (7) a process was created for admission of new
states; (8) a uniform rule of naturalization should be adopted in
each state; and (9) full faith and credit observed between the
states with regard to criminal convictions.133
The New Jersey Plan was no minor revision of the Articles of
Confederation. It contained a radical expansion of power com-
pared with the existing system. Paterson did not include any
change in the system of voting in Congress. However, Congress
would remain one-state, one-vote. And, he did not propose the
direct election of any branch of government by the people. If the
New Jersey Plan had formed the ultimate framework from the
Convention, it would have almost certainly required a compre-
hensive rewrite of the Articles of Confederation—a “whole new
document”—rather than discrete amendments. Paterson and the
other Anti-Federalists did not object to massive changes or a new
document; rather they contended that the delegates were unau-
130. Id. at 177.
131. See Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786),
reprinted in 1 DHRC, supra note 4, at 196, 196.
132. 1 FARRAND’S RECORDS, supra note 107, at 184.
133. Id. at 242–45.
No. 1]
Defying Conventional Wisdom 83
thorized to adopt a different theory of government. When the ad-
vocates of the New Jersey Plan raised arguments about the scope
of the delegates’ authority, they were not making technical legal
arguments. Their contention was one of political philosophy. Any
plan that they deemed insufficiently “federalist” in character was
beyond the scope of their view of the delegates’ authority.
This is clearly shown by debates on the following day, Sat-
urday, June 16th. John Lansing, Jr., an ardent Anti-Federalist
from New York, asked for a reading of the first resolutions of
both Paterson’s plan and Randolph’s Virginia Plan.134 Lansing
contended that Paterson’s plan sustained the sovereignty of the
states, while Randolph’s destroyed state sovereignty.135 He
picked up Paterson’s earlier contention that the Convention
had the authority to adopt the New Jersey Plan but not the Vir-
ginia Plan.136 “He was decidedly of opinion that the power of
the Convention was restrained to amendments of a federal na-
ture, and having for their basis the Confederacy in being.”137
Then he asserted, “The Act of Congress[, t]he tenor of the Acts
of the States, the commissions produced by the several deputa-
tions all proved this.”138
While Lansing’s own New York credentials followed the lim-
ited formula of Congress, he was playing fast and loose with the
facts to assert that this was a fair description of the authority of
any other state except Massachusetts. However, one component
of his argument was more than disingenuous political spin. He
emphasized the concept that the Convention must propose a
federal, not national government.139 Every state’s credentials had
explicit language embracing the view that the revised govern-
ment should be federal in character since they were to deliver an
adequate “federal constitution.” Like Randolph’s plan, the Anti-
Federalists’ plan would have required a substantial rewrite of
the Articles of Confederation. Their continued objection was not
to the writing of a “whole new document” but to a form of gov-
ernment that they personally deemed to be insufficiently “feder-
al” in character. James Wilson took the floor immediately follow-
134. Id. at 249.
135. Id.
136. Id.
137. Id.
138. Id.
139. Id. at 246.
82
Harvard Journal of Law & Public Policy
[Vol. 40
which he required to be read.”130 Of course, the formula created
by Congress was only followed precisely by New York and
Massachusetts. Paterson cleverly avoided asking for a reading
of his own New Jersey credentials, which contained a much
broader statement of authority.131 He was attempting to defeat
proportional representation, and he carefully selected the cre-
dentials he thought would bolster his political argument. Pat-
erson elaborated on his view of the delegates’ authority:
Our powers do not extend to the abolition of the State Gov-
ernments, and the Erection of a national Govt. —They only au-
thorise amendments in the present System, and have for yr. Ba-
sis the present Confederation which establishes the principle
that each State has an equal vote in Congress . . . .132
Six days later, Paterson introduced his well-known New Jer-
sey plan which contained nine points: (1) federal powers were
to be enlarged; (2) Congress should be given the power to tax;
(3) enforcement powers should be given to collect delinquen-
cies from the states; (4) Congress would appoint an executive;
(5) a federal judiciary would be created; (6) a supremacy clause
was included; (7) a process was created for admission of new
states; (8) a uniform rule of naturalization should be adopted in
each state; and (9) full faith and credit observed between the
states with regard to criminal convictions.133
The New Jersey Plan was no minor revision of the Articles of
Confederation. It contained a radical expansion of power com-
pared with the existing system. Paterson did not include any
change in the system of voting in Congress. However, Congress
would remain one-state, one-vote. And, he did not propose the
direct election of any branch of government by the people. If the
New Jersey Plan had formed the ultimate framework from the
Convention, it would have almost certainly required a compre-
hensive rewrite of the Articles of Confederation—a “whole new
document”—rather than discrete amendments. Paterson and the
other Anti-Federalists did not object to massive changes or a new
document; rather they contended that the delegates were unau-
130. Id. at 177.
131. See Resolution Authorizing and Empowering the Delegates (Nov. 24, 1786),
reprinted in 1 DHRC, supra note 4, at 196, 196.
132. 1 FARRAND’S RECORDS, supra note 107, at 184.
133. Id. at 242–45.
No. 1]
Defying Conventional Wisdom
thorized to adopt a different theory of government. When the ad-
vocates of the New Jersey Plan raised arguments about the scop
of the delegates’ authority, they were not making technical le
arguments. Their contention was one of political philosophy. Any
plan that they deemed insufficiently “federalist” in character w
beyond the scope of their view of the delegates’ authority.
This is clearly shown by debates on the following day, Sat
urday, June 16th. John Lansing, Jr., an ardent Anti-Federalist
from New York, asked for a reading of the first resolutions of
both Paterson’s plan and Randolph’s Virginia Plan.134 Lansi
contended that Paterson’s plan sustained the sovereignty of t
states, while Randolph’s destroyed state sovereignty.135 He
picked up Paterson’s earlier contention that the Conventi
had the authority to adopt the New Jersey Plan but not the Vir-
ginia Plan.136 “He was decidedly of opinion that the power o
the Convention was restrained to amendments of a federal na-
ture, and having for their basis the Confederacy in being.”137
Then he asserted, “The Act of Congress[, t]he tenor of the Acts
of the States, the commissions produced by the several deputa-
tions all proved this.”138
While Lansing’s own New York credentials followed the li
ited formula of Congress, he was playing fast and loose with the
facts to assert that this was a fair description of the authority of
any other state except Massachusetts. However, one component
of his argument was more than disingenuous political spin. He
emphasized the concept that the Convention must propose
federal, not national government.139 Every state’s credentials ha
explicit language embracing the view that the revised gove
ment should be federal in character since they were to deliver
adequate “federal constitution.” Like Randolph’s plan, the Ant
Federalists’ plan would have required a substantial rewrite
the Articles of Confederation. Their continued objection was
to the writing of a “whole new document” but to a form of
ernment that they personally deemed to be insufficiently “fe
al” in character. James Wilson took the floor immediately foll
134. Id. at 249.
135. Id.
136. Id.
137. Id.
138. Id.
139. Id. at 246.
88
84
Harvard Journal of Law & Public Policy
[Vol. 40
ing Lansing and Paterson on this Saturday session. He began
with a side-by-side comparison of the two comprehensive plans.
He contended that his powers allowed him to “agree to either
plan or none.”140
On the following Monday, June 18th, Madison picked up the
argument. He contended that the New Jersey Plan itself varied
from some delegates’ views of a federal system “since it is to
operate eventually on individuals.”141 Madison contended that
the States “sent us here to provide for the exigences [sic] of the
Union. To rely on & propose any plan not adequate to these
exigences [sic], merely because it was not clearly within our
powers, would be to sacrifice the means to the end.”142 Here,
and in other speeches and writings, Madison embraced the no-
tion that the delegates would be justified in exceeding their
strict instructions if necessary. But his moral argument was not
a concession by him that, in fact, their proposed actions were a
legal violation of their credentials. His argument was clearly in
the alternative. He bolstered his argument based on the lan-
guage adopted by ten states. This recitation makes it clear that
he believed that their actions were justified under the language
of their credentials.
Hamilton followed Madison in defense of the delegates’
authority to consider the Virginia Plan. They had been “ap-
pointed for the sole and express purpose of revising the con-
federation, and to alter or amend it, so as to render it effectual
for the purposes of a good government.”143 He concluded
with a reminder that the Convention could only “propose
and recommend.”144 The power of ratifying or rejecting lay
solely with the states.145
On the following day, June 19th, Madison again defended
the Virginia Plan against the charge that it was not sufficiently
“federal” in character.146 Madison focused on the claimed dif-
ferences between a federal system and a national system to
demonstrate that the Virginia Plan was indeed federal in char-
140. Id. at 261.
141. Id. at 283.
142. Id.
143. Id. at 294.
144. Id. at 295.
145. Id.
146. Id. at 313–22.
No. 1]
Defying Conventional Wisdom 85
acter.147 The Anti-Federalists claimed that a federal government
could not operate directly on individuals.148 Madison demon-
strated that in certain instances both the existing Articles and
the New Jersey Plan would permit direct governance of indi-
viduals.149 Second, it was contended that to qualify as a federal
plan the delegates to Congress had to be chosen by the state
legislatures.150 But, as Madison pointed out, Connecticut and
Rhode Island currently selected their members in the Confed-
eration Congress by a vote of the people rather than by the leg-
islature.151 Thus, Madison convincingly argued that if the New
Jersey Plan was “federal” in character and fell within the dele-
gates’ credentials, the Virginia Plan was likewise a federal pro-
posal and could be properly considered.
About two weeks later, when the contentious issue of the
method of voting in the two houses of Congress hit a stalemate,
on July 2nd, Robert Yates, an Anti-Federalist from New York,
was appointed to the committee to discuss a proposal from Ol-
iver Ellsworth that has come to be known as the Connecticut
Compromise.152 That committee, headed by Elbridge Gerry,
reported its recommendations on July 5th. Two days later, Ger-
ry explained that the “new Govern[ment] would be partly na-
tional, partly federal.”153
The Convention approved equal representation for each state in
the Senate on July 7th.154 And on July 10th, as they were hammer-
ing out the details for popular representation in the House of Rep-
resentatives, Lansing and Yates left the Convention for good.155
This left New York without a vote from that point on in the Con-
vention. Hamilton remained and participated in the debates, but
New York never cast another vote.
During the Convention, every allegation that delegates were
exceeding their credentials was directed at the Virginia Plan
and not the final product. Thus, it is simply not true to suggest
147. Id. at 314.
148. Id.
149. Id.
150. Id.
151. Id.
152. Id. at 509.
153. Id. at 551 (statement of Gouverneur Morris quoting Gerry).
154. Id. at 548–49.
155. Id. at 536.
84
Harvard Journal of Law & Public Policy
[Vol. 40
ing Lansing and Paterson on this Saturday session. He began
with a side-by-side comparison of the two comprehensive plans.
He contended that his powers allowed him to “agree to either
plan or none.”140
On the following Monday, June 18th, Madison picked up the
argument. He contended that the New Jersey Plan itself varied
from some delegates’ views of a federal system “since it is to
operate eventually on individuals.”141 Madison contended that
the States “sent us here to provide for the exigences [sic] of the
Union. To rely on & propose any plan not adequate to these
exigences [sic], merely because it was not clearly within our
powers, would be to sacrifice the means to the end.”142 Here,
and in other speeches and writings, Madison embraced the no-
tion that the delegates would be justified in exceeding their
strict instructions if necessary. But his moral argument was not
a concession by him that, in fact, their proposed actions were a
legal violation of their credentials. His argument was clearly in
the alternative. He bolstered his argument based on the lan-
guage adopted by ten states. This recitation makes it clear that
he believed that their actions were justified under the language
of their credentials.
Hamilton followed Madison in defense of the delegates’
authority to consider the Virginia Plan. They had been “ap-
pointed for the sole and express purpose of revising the con-
federation, and to alter or amend it, so as to render it effectual
for the purposes of a good government.”143 He concluded
with a reminder that the Convention could only “propose
and recommend.”144 The power of ratifying or rejecting lay
solely with the states.145
On the following day, June 19th, Madison again defended
the Virginia Plan against the charge that it was not sufficiently
“federal” in character.146 Madison focused on the claimed dif-
ferences between a federal system and a national system to
demonstrate that the Virginia Plan was indeed federal in char-
140. Id. at 261.
141. Id. at 283.
142. Id.
143. Id. at 294.
144. Id. at 295.
145. Id.
146. Id. at 313–22.
No. 1]
Defying Conventional Wisdom
acter.147 The Anti-Federalists claimed that a federal governmen
could not operate directly on individuals.148 Madison demon-
strated that in certain instances both the existing Articles and
the New Jersey Plan would permit direct governance of indi-
viduals.149 Second, it was contended that to qualify as a feder
plan the delegates to Congress had to be chosen by the st
legislatures.150 But, as Madison pointed out, Connecticut and
Rhode Island currently selected their members in the Confe
eration Congress by a vote of the people rather than by the leg-
islature.151 Thus, Madison convincingly argued that if the Ne
Jersey Plan was “federal” in character and fell within the de
gates’ credentials, the Virginia Plan was likewise a federal pro-
posal and could be properly considered.
About two weeks later, when the contentious issue of th
method of voting in the two houses of Congress hit a stalemate,
on July 2nd, Robert Yates, an Anti-Federalist from New Yo
was appointed to the committee to discuss a proposal from Ol-
iver Ellsworth that has come to be known as the Connectic
Compromise.152 That committee, headed by Elbridge Gerry,
reported its recommendations on July 5th. Two days later, Ger-
ry explained that the “new Govern[ment] would be partly na-
tional, partly federal.”153
The Convention approved equal representation for each state i
the Senate on July 7th.154 And on July 10th, as they were hamm
ing out the details for popular representation in the House of Rep-
resentatives, Lansing and Yates left the Convention for good 155
This left New York without a vote from that point on in the Co
vention. Hamilton remained and participated in the debates, but
New York never cast another vote.
During the Convention, every allegation that delegates wer
exceeding their credentials was directed at the Virginia Plan
and not the final product. Thus, it is simply not true to suggest
147. Id. at 314.
148. Id.
149. Id.
150. Id.
151. Id.
152. Id. at 509.
153. Id. at 551 (statement of Gouverneur Morris quoting Gerry).
154. Id. at 548–49.
155. Id. at 536.
89
84
Harvard Journal of Law & Public Policy
[Vol. 40
ing Lansing and Paterson on this Saturday session. He began
with a side-by-side comparison of the two comprehensive plans.
He contended that his powers allowed him to “agree to either
plan or none.”140
On the following Monday, June 18th, Madison picked up the
argument. He contended that the New Jersey Plan itself varied
from some delegates’ views of a federal system “since it is to
operate eventually on individuals.”141 Madison contended that
the States “sent us here to provide for the exigences [sic] of the
Union. To rely on & propose any plan not adequate to these
exigences [sic], merely because it was not clearly within our
powers, would be to sacrifice the means to the end.”142 Here,
and in other speeches and writings, Madison embraced the no-
tion that the delegates would be justified in exceeding their
strict instructions if necessary. But his moral argument was not
a concession by him that, in fact, their proposed actions were a
legal violation of their credentials. His argument was clearly in
the alternative. He bolstered his argument based on the lan-
guage adopted by ten states. This recitation makes it clear that
he believed that their actions were justified under the language
of their credentials.
Hamilton followed Madison in defense of the delegates’
authority to consider the Virginia Plan. They had been “ap-
pointed for the sole and express purpose of revising the con-
federation, and to alter or amend it, so as to render it effectual
for the purposes of a good government.”143 He concluded
with a reminder that the Convention could only “propose
and recommend.”144 The power of ratifying or rejecting lay
solely with the states.145
On the following day, June 19th, Madison again defended
the Virginia Plan against the charge that it was not sufficiently
“federal” in character.146 Madison focused on the claimed dif-
ferences between a federal system and a national system to
demonstrate that the Virginia Plan was indeed federal in char-
140. Id. at 261.
141. Id. at 283.
142. Id.
143. Id. at 294.
144. Id. at 295.
145. Id.
146. Id. at 313–22.
No. 1]
Defying Conventional Wisdom 85
acter.147 The Anti-Federalists claimed that a federal government
could not operate directly on individuals.148 Madison demon-
strated that in certain instances both the existing Articles and
the New Jersey Plan would permit direct governance of indi-
viduals.149 Second, it was contended that to qualify as a federal
plan the delegates to Congress had to be chosen by the state
legislatures.150 But, as Madison pointed out, Connecticut and
Rhode Island currently selected their members in the Confed-
eration Congress by a vote of the people rather than by the leg-
islature.151 Thus, Madison convincingly argued that if the New
Jersey Plan was “federal” in character and fell within the dele-
gates’ credentials, the Virginia Plan was likewise a federal pro-
posal and could be properly considered.
About two weeks later, when the contentious issue of the
method of voting in the two houses of Congress hit a stalemate,
on July 2nd, Robert Yates, an Anti-Federalist from New York,
was appointed to the committee to discuss a proposal from Ol-
iver Ellsworth that has come to be known as the Connecticut
Compromise.152 That committee, headed by Elbridge Gerry,
reported its recommendations on July 5th. Two days later, Ger-
ry explained that the “new Govern[ment] would be partly na-
tional, partly federal.”153
The Convention approved equal representation for each state in
the Senate on July 7th.154 And on July 10th, as they were hammer-
ing out the details for popular representation in the House of Rep-
resentatives, Lansing and Yates left the Convention for good.155
This left New York without a vote from that point on in the Con-
vention. Hamilton remained and participated in the debates, but
New York never cast another vote.
During the Convention, every allegation that delegates were
exceeding their credentials was directed at the Virginia Plan
and not the final product. Thus, it is simply not true to suggest
147. Id. at 314.
148. Id.
149. Id.
150. Id.
151. Id.
152. Id. at 509.
153. Id. at 551 (statement of Gouverneur Morris quoting Gerry).
154. Id. at 548–49.
155. Id. at 536.
84
Harvard Journal of Law & Public Policy
[Vol. 40
ing Lansing and Paterson on this Saturday session. He began
with a side-by-side comparison of the two comprehensive plans.
He contended that his powers allowed him to “agree to either
plan or none.”140
On the following Monday, June 18th, Madison picked up the
argument. He contended that the New Jersey Plan itself varied
from some delegates’ views of a federal system “since it is to
operate eventually on individuals.”141 Madison contended that
the States “sent us here to provide for the exigences [sic] of the
Union. To rely on & propose any plan not adequate to these
exigences [sic], merely because it was not clearly within our
powers, would be to sacrifice the means to the end.”142 Here,
and in other speeches and writings, Madison embraced the no-
tion that the delegates would be justified in exceeding their
strict instructions if necessary. But his moral argument was not
a concession by him that, in fact, their proposed actions were a
legal violation of their credentials. His argument was clearly in
the alternative. He bolstered his argument based on the lan-
guage adopted by ten states. This recitation makes it clear that
he believed that their actions were justified under the language
of their credentials.
Hamilton followed Madison in defense of the delegates’
authority to consider the Virginia Plan. They had been “ap-
pointed for the sole and express purpose of revising the con-
federation, and to alter or amend it, so as to render it effectual
for the purposes of a good government.”143 He concluded
with a reminder that the Convention could only “propose
and recommend.”144 The power of ratifying or rejecting lay
solely with the states.145
On the following day, June 19th, Madison again defended
the Virginia Plan against the charge that it was not sufficiently
“federal” in character.146 Madison focused on the claimed dif-
ferences between a federal system and a national system to
demonstrate that the Virginia Plan was indeed federal in char-
140. Id. at 261.
141. Id. at 283.
142. Id.
143. Id. at 294.
144. Id. at 295.
145. Id.
146. Id. at 313–22.
No. 1]
Defying Conventional Wisdom
acter.147 The Anti-Federalists claimed that a federal governmen
could not operate directly on individuals.148 Madison demon-
strated that in certain instances both the existing Articles and
the New Jersey Plan would permit direct governance of indi-
viduals.149 Second, it was contended that to qualify as a feder
plan the delegates to Congress had to be chosen by the st
legislatures.150 But, as Madison pointed out, Connecticut and
Rhode Island currently selected their members in the Confe
eration Congress by a vote of the people rather than by the leg-
islature.151 Thus, Madison convincingly argued that if the Ne
Jersey Plan was “federal” in character and fell within the de
gates’ credentials, the Virginia Plan was likewise a federal pro-
posal and could be properly considered.
About two weeks later, when the contentious issue of th
method of voting in the two houses of Congress hit a stalemate,
on July 2nd, Robert Yates, an Anti-Federalist from New Yo
was appointed to the committee to discuss a proposal from Ol-
iver Ellsworth that has come to be known as the Connectic
Compromise.152 That committee, headed by Elbridge Gerry,
reported its recommendations on July 5th. Two days later, Ger-
ry explained that the “new Govern[ment] would be partly na-
tional, partly federal.”153
The Convention approved equal representation for each state i
the Senate on July 7th.154 And on July 10th, as they were hamm
ing out the details for popular representation in the House of Rep-
resentatives, Lansing and Yates left the Convention for good 155
This left New York without a vote from that point on in the Co
vention. Hamilton remained and participated in the debates, but
New York never cast another vote.
During the Convention, every allegation that delegates wer
exceeding their credentials was directed at the Virginia Plan
and not the final product. Thus, it is simply not true to suggest
147. Id. at 314.
148. Id.
149. Id.
150. Id.
151. Id.
152. Id. at 509.
153. Id. at 551 (statement of Gouverneur Morris quoting Gerry).
154. Id. at 548–49.
155. Id. at 536.
90
86
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[Vol. 40
that the Convention believed it was intentionally violating its
credentials when voting to adopt the Constitution. Even during
the earlier stages of the Convention, the Federalists defended
the Virginia Plan as being within the scope of their authority.
The final product—the actual Constitution—was more bal-
anced toward true federalism than the Virginia Plan. Thus, at
no stage of the Convention was there a consensus that the del-
egates were acting in an ultra vires manner.
C. Debates in the Confederation Congress
The Constitution was carried by William Jackson, secretary
of the Convention, to New York where he delivered it to Con-
gress on September 19th.156 The debates over the Constitution
began the following week on September 26th.157
On the first day of debate, Nathan Dane made a motion con-
tending that it was beyond the power of Congress to recom-
mend approval of the new Constitution.158 Congress was lim-
ited to proposing amendments to the Articles of Confederation
rather than recommending a new system of government.159
Dane’s motion acknowledges that the delegates’ powers were
found in their state credentials.160 Dane referred to the February
21st action of Congress as having “resolved that it was expedi-
ent that a Convention of the States should be held for the Sole
and express purpose of revising the articles of Confedera-
tion.”161 A fair reading of Dane’s motion suggests that he was
surprised by the outcome. Nothing he said implied that the
delegates had violated their credentials from the states. Dane
contended that Congress should simply forward the Constitu-
tion to the state legislatures for their consideration.162 He ar-
gued that this was neutral toward the Constitution, though he
clearly opposed the document.163
Richard Henry Lee vigorously contended that the Constitu-
tion could be amended by the Confederation Congress before it
156. 13 DHRC, supra note 4, at 229.
157. Id. at 231.
158. Id.
159. Id.
160. Id.
161. Id.
162. Id. at 232.
163. Id.
No. 1]
Defying Conventional Wisdom 87
was sent to the states.164 He ultimately proposed a series of
amendments outlining many provisions in the nature of a bill
of rights and various changes in the structure of government.165
He also sought to establish the Senate on the basis of propor-
tional representation rather than the equality of the states.166
Rufus King of Massachusetts argued that Congress could not
“constitutionally make alterations” and that “[t]he idea of [the]
Convention originated in the states.”167 Madison followed this
argument almost immediately contending that “[t]he Conven-
tion was not appointed by Congress, but by the people from
whom Congress derive their power.”168
It must be noted there were substantial conflicts in Congress
over the mode of ratification (which will be considered in section
II) and it is was fair to conclude that some members of Congress
were surprised with the outcome of the Convention. Nonetheless,
there was no serious contention that the delegates had violated
their instructions from the states. Notably absent from the record
is any claim that Congress had called the Convention and given
the delegates their instructions and authority. This silence is pow-
erful evidence that Congress did not believe that it had called the
Convention or had issued binding instructions.
Every attempt to propose amendments or to express a sub-
stantive opinion on the merits of the Constitution was unsuc-
cessful. On September 28th, Congress (voting by states) unan-
imously approved the following resolution:
Resolved unanimously, That the said report with the resolu-
tions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.169
The only recommendation coming from Congress was that the
state legislatures should send the matter to state conventions. This
164. Id. at 237–38.
165. Id. at 238–240.
166. Id. at 240.
167. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note 4,
at 335, 335–36.
168. Id. at 336.
169. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4, at
340, 340.
86
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[Vol. 40
that the Convention believed it was intentionally violating its
credentials when voting to adopt the Constitution. Even during
the earlier stages of the Convention, the Federalists defended
the Virginia Plan as being within the scope of their authority.
The final product—the actual Constitution—was more bal-
anced toward true federalism than the Virginia Plan. Thus, at
no stage of the Convention was there a consensus that the del-
egates were acting in an ultra vires manner.
C. Debates in the Confederation Congress
The Constitution was carried by William Jackson, secretary
of the Convention, to New York where he delivered it to Con-
gress on September 19th.156 The debates over the Constitution
began the following week on September 26th.157
On the first day of debate, Nathan Dane made a motion con-
tending that it was beyond the power of Congress to recom-
mend approval of the new Constitution.158 Congress was lim-
ited to proposing amendments to the Articles of Confederation
rather than recommending a new system of government.159
Dane’s motion acknowledges that the delegates’ powers were
found in their state credentials.160 Dane referred to the February
21st action of Congress as having “resolved that it was expedi-
ent that a Convention of the States should be held for the Sole
and express purpose of revising the articles of Confedera-
tion.”161 A fair reading of Dane’s motion suggests that he was
surprised by the outcome. Nothing he said implied that the
delegates had violated their credentials from the states. Dane
contended that Congress should simply forward the Constitu-
tion to the state legislatures for their consideration.162 He ar-
gued that this was neutral toward the Constitution, though he
clearly opposed the document.163
Richard Henry Lee vigorously contended that the Constitu-
tion could be amended by the Confederation Congress before it
156. 13 DHRC, supra note 4, at 229.
157. Id. at 231.
158. Id.
159. Id.
160. Id.
161. Id.
162. Id. at 232.
163. Id.
No. 1]
Defying Conventional Wisdom
was sent to the states.164 He ultimately proposed a series o
amendments outlining many provisions in the nature of a bill
of rights and various changes in the structure of government.165
He also sought to establish the Senate on the basis of propor-
tional representation rather than the equality of the states 166
Rufus King of Massachusetts argued that Congress could not
“constitutionally make alterations” and that “[t]he idea of [the]
Convention originated in the states.”167 Madison followed this
argument almost immediately contending that “[t]he Conven-
tion was not appointed by Congress, but by the people from
whom Congress derive their power.”168
It must be noted there were substantial conflicts in Congr
over the mode of ratification (which will be considered in section
II) and it is was fair to conclude that some members of Congres
were surprised with the outcome of the Convention. Nonetheless,
there was no serious contention that the delegates had violat
their instructions from the states. Notably absent from the reco
is any claim that Congress had called the Convention and giv
the delegates their instructions and authority. This silence is pow-
erful evidence that Congress did not believe that it had called the
Convention or had issued binding instructions.
Every attempt to propose amendments or to express a sub-
stantive opinion on the merits of the Constitution was unsuc-
cessful. On September 28th, Congress (voting by states) unan-
imously approved the following resolution:
Resolved unanimously, That the said report with the resolu-
tions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.169
The only recommendation coming from Congress was that t
state legislatures should send the matter to state conventions. This
164. Id. at 237–38.
165. Id. at 238–240.
166. Id. at 240.
167. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note
at 335, 335–36.
168. Id. at 336.
169. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
340, 340.
91
86
Harvard Journal of Law & Public Policy
[Vol. 40
that the Convention believed it was intentionally violating its
credentials when voting to adopt the Constitution. Even during
the earlier stages of the Convention, the Federalists defended
the Virginia Plan as being within the scope of their authority.
The final product—the actual Constitution—was more bal-
anced toward true federalism than the Virginia Plan. Thus, at
no stage of the Convention was there a consensus that the del-
egates were acting in an ultra vires manner.
C. Debates in the Confederation Congress
The Constitution was carried by William Jackson, secretary
of the Convention, to New York where he delivered it to Con-
gress on September 19th.156 The debates over the Constitution
began the following week on September 26th.157
On the first day of debate, Nathan Dane made a motion con-
tending that it was beyond the power of Congress to recom-
mend approval of the new Constitution.158 Congress was lim-
ited to proposing amendments to the Articles of Confederation
rather than recommending a new system of government.159
Dane’s motion acknowledges that the delegates’ powers were
found in their state credentials.160 Dane referred to the February
21st action of Congress as having “resolved that it was expedi-
ent that a Convention of the States should be held for the Sole
and express purpose of revising the articles of Confedera-
tion.”161 A fair reading of Dane’s motion suggests that he was
surprised by the outcome. Nothing he said implied that the
delegates had violated their credentials from the states. Dane
contended that Congress should simply forward the Constitu-
tion to the state legislatures for their consideration.162 He ar-
gued that this was neutral toward the Constitution, though he
clearly opposed the document.163
Richard Henry Lee vigorously contended that the Constitu-
tion could be amended by the Confederation Congress before it
156. 13 DHRC, supra note 4, at 229.
157. Id. at 231.
158. Id.
159. Id.
160. Id.
161. Id.
162. Id. at 232.
163. Id.
No. 1]
Defying Conventional Wisdom 87
was sent to the states.164 He ultimately proposed a series of
amendments outlining many provisions in the nature of a bill
of rights and various changes in the structure of government.165
He also sought to establish the Senate on the basis of propor-
tional representation rather than the equality of the states.166
Rufus King of Massachusetts argued that Congress could not
“constitutionally make alterations” and that “[t]he idea of [the]
Convention originated in the states.”167 Madison followed this
argument almost immediately contending that “[t]he Conven-
tion was not appointed by Congress, but by the people from
whom Congress derive their power.”168
It must be noted there were substantial conflicts in Congress
over the mode of ratification (which will be considered in section
II) and it is was fair to conclude that some members of Congress
were surprised with the outcome of the Convention. Nonetheless,
there was no serious contention that the delegates had violated
their instructions from the states. Notably absent from the record
is any claim that Congress had called the Convention and given
the delegates their instructions and authority. This silence is pow-
erful evidence that Congress did not believe that it had called the
Convention or had issued binding instructions.
Every attempt to propose amendments or to express a sub-
stantive opinion on the merits of the Constitution was unsuc-
cessful. On September 28th, Congress (voting by states) unan-
imously approved the following resolution:
Resolved unanimously, That the said report with the resolu-
tions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.169
The only recommendation coming from Congress was that the
state legislatures should send the matter to state conventions. This
164. Id. at 237–38.
165. Id. at 238–240.
166. Id. at 240.
167. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note 4,
at 335, 335–36.
168. Id. at 336.
169. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4, at
340, 340.
86
Harvard Journal of Law & Public Policy
[Vol. 40
that the Convention believed it was intentionally violating its
credentials when voting to adopt the Constitution. Even during
the earlier stages of the Convention, the Federalists defended
the Virginia Plan as being within the scope of their authority.
The final product—the actual Constitution—was more bal-
anced toward true federalism than the Virginia Plan. Thus, at
no stage of the Convention was there a consensus that the del-
egates were acting in an ultra vires manner.
C. Debates in the Confederation Congress
The Constitution was carried by William Jackson, secretary
of the Convention, to New York where he delivered it to Con-
gress on September 19th.156 The debates over the Constitution
began the following week on September 26th.157
On the first day of debate, Nathan Dane made a motion con-
tending that it was beyond the power of Congress to recom-
mend approval of the new Constitution.158 Congress was lim-
ited to proposing amendments to the Articles of Confederation
rather than recommending a new system of government.159
Dane’s motion acknowledges that the delegates’ powers were
found in their state credentials.160 Dane referred to the February
21st action of Congress as having “resolved that it was expedi-
ent that a Convention of the States should be held for the Sole
and express purpose of revising the articles of Confedera-
tion.”161 A fair reading of Dane’s motion suggests that he was
surprised by the outcome. Nothing he said implied that the
delegates had violated their credentials from the states. Dane
contended that Congress should simply forward the Constitu-
tion to the state legislatures for their consideration.162 He ar-
gued that this was neutral toward the Constitution, though he
clearly opposed the document.163
Richard Henry Lee vigorously contended that the Constitu-
tion could be amended by the Confederation Congress before it
156. 13 DHRC, supra note 4, at 229.
157. Id. at 231.
158. Id.
159. Id.
160. Id.
161. Id.
162. Id. at 232.
163. Id.
No. 1]
Defying Conventional Wisdom
was sent to the states.164 He ultimately proposed a series o
amendments outlining many provisions in the nature of a bill
of rights and various changes in the structure of government.165
He also sought to establish the Senate on the basis of propor-
tional representation rather than the equality of the states 166
Rufus King of Massachusetts argued that Congress could not
“constitutionally make alterations” and that “[t]he idea of [the]
Convention originated in the states.”167 Madison followed this
argument almost immediately contending that “[t]he Conven-
tion was not appointed by Congress, but by the people from
whom Congress derive their power.”168
It must be noted there were substantial conflicts in Congr
over the mode of ratification (which will be considered in section
II) and it is was fair to conclude that some members of Congres
were surprised with the outcome of the Convention. Nonetheless,
there was no serious contention that the delegates had violat
their instructions from the states. Notably absent from the reco
is any claim that Congress had called the Convention and giv
the delegates their instructions and authority. This silence is pow-
erful evidence that Congress did not believe that it had called the
Convention or had issued binding instructions.
Every attempt to propose amendments or to express a sub-
stantive opinion on the merits of the Constitution was unsuc-
cessful. On September 28th, Congress (voting by states) unan-
imously approved the following resolution:
Resolved unanimously, That the said report with the resolu-
tions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.169
The only recommendation coming from Congress was that t
state legislatures should send the matter to state conventions. This
164. Id. at 237–38.
165. Id. at 238–240.
166. Id. at 240.
167. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note
at 335, 335–36.
168. Id. at 336.
169. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
340, 340.
92
88
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[Vol. 40
was an approval of the new ratification process only, and not an
approval of the merits of the Constitution.
D. Debates in the State Ratification Convention Process
Many people—even some scholars—contend that the Consti-
tution was sent straight from the Constitutional Convention in
Philadelphia to the ratification conventions in the several
states.170 Such “history” obviously misses two important steps.
First, Congress dealt with the issue as we have just seen. Sec-
ond, Congress sent the Constitution together with its recom-
mendation for following the new process to the state legisla-
tures—not the state ratification conventions. Each legislature
had to decide whether it would follow this new process by call-
ing a ratification convention within the state. Some of the most
important discussions of the propriety of the actions of the
Constitutional Convention are found in these state legislative
debates. In some states, the issue spilled over into the ratifica-
tion conventions and public debates as well. We consider the
evidence from all such sources below.
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.171 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 fol-
lowed her in the appointment of delegates, wait the recom-
mendation 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
170. 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 pro-
posed Constitution to Congress for approval, or to the legislatures of the states,
but called for ratification by ‘specially elected conventions’ in the states.’”).
171.
See supra notes 88–92 and accompanying text.
No. 1]
Defying Conventional Wisdom 89
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.172
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 Conven-
tion of the States to revise, and correct the defects of the
federal System. Congress have also recognized, & recom-
mended the measure.173
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.174 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 repeat-
edly 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).”175 An Anti-
Federalist writer—who took the unpopular tack of attacking
George Washington—admitted this point as well. “[T]he mo-
tion made by Virginia for a General Convention, was so readily
172. Assembly Debates, A.M. (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4,
at XX, 79–80.
173. 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).
174. Letter from James Madison to George Washington, New York (Sept. 30,
1787), reprinted in 1 DHRC, supra note 4, at 343, 343–44.
175. Convention Debates (Nov. 28, 1787), reprinted in 2 DHRC, supra note 4, at
382, 394.
88
Harvard Journal of Law & Public Policy
[Vol. 40
was an approval of the new ratification process only, and not an
approval of the merits of the Constitution.
D. Debates in the State Ratification Convention Process
Many people—even some scholars—contend that the Consti-
tution was sent straight from the Constitutional Convention in
Philadelphia to the ratification conventions in the several
states.170 Such “history” obviously misses two important steps.
First, Congress dealt with the issue as we have just seen. Sec-
ond, Congress sent the Constitution together with its recom-
mendation for following the new process to the state legisla-
tures—not the state ratification conventions. Each legislature
had to decide whether it would follow this new process by call-
ing a ratification convention within the state. Some of the most
important discussions of the propriety of the actions of the
Constitutional Convention are found in these state legislative
debates. In some states, the issue spilled over into the ratifica-
tion conventions and public debates as well. We consider the
evidence from all such sources below.
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.171 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 fol-
lowed her in the appointment of delegates, wait the recom-
mendation 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
170. 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 pro-
posed Constitution to Congress for approval, or to the legislatures of the states,
but called for ratification by ‘specially elected conventions’ in the states.’”).
171.
See supra notes 88–92 and accompanying text.
No. 1]
Defying Conventional Wisdom
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.172
George Washington described the origins of the Conventi
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 Conven-
tion of the States to revise, and correct the defects of the
federal System. Congress have also recognized, & recom-
mended the measure.173
Madison echoed this theme in a letter to Washington sent
September 30th, 1787. “[E]very circumstance indicated that t
introduction of Congress as a party to the reform was intend
by the states merely as a matter of form and respect,” h
wrote.174 Federalists, as may be expected, consistently adhere
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 Conventi
had violated its instructions, leading Anti-Federalists repea
edly 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 stat
delegates to the Constitutional Convention, followed by the
contention that “no other power was given to the delega
from this state (and I believe the power given by the other
states was of the same nature and extent).”175 An An
Federalist writer—who took the unpopular tack of attacking
George Washington—admitted this point as well. “[T]he mo-
tion made by Virginia for a General Convention, was so readily
172. Assembly Debates, A.M. (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4
at XX, 79–80.
173. Letter from George Washington to Marquis de Lafayette (Mar. 25, 178
reprinted in THE PAPERS OF GEORGE WASHINGTON DIGITAL EDITION 106 (Theodore
J. Crackel ed., 2008).
174. Letter from James Madison to George Washington, New York (Sept. 30,
1787), reprinted in 1 DHRC, supra note 4, at 343, 343–44.
175. Convention Debates (Nov. 28, 1787), reprinted in 2 DHRC, supra note 4,
382, 394.
93
88
Harvard Journal of Law & Public Policy
[Vol. 40
was an approval of the new ratification process only, and not an
approval of the merits of the Constitution.
D. Debates in the State Ratification Convention Process
Many people—even some scholars—contend that the Consti-
tution was sent straight from the Constitutional Convention in
Philadelphia to the ratification conventions in the several
states.170 Such “history” obviously misses two important steps.
First, Congress dealt with the issue as we have just seen. Sec-
ond, Congress sent the Constitution together with its recom-
mendation for following the new process to the state legisla-
tures—not the state ratification conventions. Each legislature
had to decide whether it would follow this new process by call-
ing a ratification convention within the state. Some of the most
important discussions of the propriety of the actions of the
Constitutional Convention are found in these state legislative
debates. In some states, the issue spilled over into the ratifica-
tion conventions and public debates as well. We consider the
evidence from all such sources below.
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.171 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 fol-
lowed her in the appointment of delegates, wait the recom-
mendation 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
170. 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 pro-
posed Constitution to Congress for approval, or to the legislatures of the states,
but called for ratification by ‘specially elected conventions’ in the states.’”).
171.
See supra notes 88–92 and accompanying text.
No. 1]
Defying Conventional Wisdom 89
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.172
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 Conven-
tion of the States to revise, and correct the defects of the
federal System. Congress have also recognized, & recom-
mended the measure.173
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.174 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 repeat-
edly 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).”175 An Anti-
Federalist writer—who took the unpopular tack of attacking
George Washington—admitted this point as well. “[T]he mo-
tion made by Virginia for a General Convention, was so readily
172. Assembly Debates, A.M. (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4,
at XX, 79–80.
173. 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).
174. Letter from James Madison to George Washington, New York (Sept. 30,
1787), reprinted in 1 DHRC, supra note 4, at 343, 343–44.
175. Convention Debates (Nov. 28, 1787), reprinted in 2 DHRC, supra note 4, at
382, 394.
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was an approval of the new ratification process only, and not an
approval of the merits of the Constitution.
D. Debates in the State Ratification Convention Process
Many people—even some scholars—contend that the Consti-
tution was sent straight from the Constitutional Convention in
Philadelphia to the ratification conventions in the several
states.170 Such “history” obviously misses two important steps.
First, Congress dealt with the issue as we have just seen. Sec-
ond, Congress sent the Constitution together with its recom-
mendation for following the new process to the state legisla-
tures—not the state ratification conventions. Each legislature
had to decide whether it would follow this new process by call-
ing a ratification convention within the state. Some of the most
important discussions of the propriety of the actions of the
Constitutional Convention are found in these state legislative
debates. In some states, the issue spilled over into the ratifica-
tion conventions and public debates as well. We consider the
evidence from all such sources below.
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.171 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 fol-
lowed her in the appointment of delegates, wait the recom-
mendation 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
170. 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 pro-
posed Constitution to Congress for approval, or to the legislatures of the states,
but called for ratification by ‘specially elected conventions’ in the states.’”).
171.
See supra notes 88–92 and accompanying text.
No. 1]
Defying Conventional Wisdom
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.172
George Washington described the origins of the Conventi
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 Conven-
tion of the States to revise, and correct the defects of the
federal System. Congress have also recognized, & recom-
mended the measure.173
Madison echoed this theme in a letter to Washington sent
September 30th, 1787. “[E]very circumstance indicated that t
introduction of Congress as a party to the reform was intend
by the states merely as a matter of form and respect,” h
wrote.174 Federalists, as may be expected, consistently adhere
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 Conventi
had violated its instructions, leading Anti-Federalists repea
edly 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 stat
delegates to the Constitutional Convention, followed by the
contention that “no other power was given to the delega
from this state (and I believe the power given by the other
states was of the same nature and extent).”175 An An
Federalist writer—who took the unpopular tack of attacking
George Washington—admitted this point as well. “[T]he mo-
tion made by Virginia for a General Convention, was so readily
172. Assembly Debates, A.M. (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4
at XX, 79–80.
173. Letter from George Washington to Marquis de Lafayette (Mar. 25, 178
reprinted in THE PAPERS OF GEORGE WASHINGTON DIGITAL EDITION 106 (Theodore
J. Crackel ed., 2008).
174. Letter from James Madison to George Washington, New York (Sept. 30,
1787), reprinted in 1 DHRC, supra note 4, at 343, 343–44.
175. Convention Debates (Nov. 28, 1787), reprinted in 2 DHRC, supra note 4,
382, 394.
94
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agreed to by all the States; and that as the people were so very
zealous for a good Federal Government . . . .”176 A series of An-
ti-Federalist articles appeared in the Massachusetts Centinel
from December 29th, 1787 through February 6th, 1788.177 In the
first installment, this writer admitted that the Constitutional
Convention originated in the Virginia legislature:
The Federal Convention was first proposed by the legisla-
ture 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 usurpa-
tion and tyranny of Great-Britain, and has now proclaimed
the necessity of more power and energy in our federal gov-
ernment . . . .
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 . . . .178
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.
2. Who gave the delegates their instructions?
An article in the New York Daily Advertiser on May 24,
1787, may provide us the most objective view on the source of
the delegates’ authority since it was published the day before
the Convention began its work. No one yet had a reason to
claim that the delegates had violated their instructions.
[W]e are informed, that the authority granted to their dele-
gates, by some states, are very extensive; by others even
general, and by all much enlarged. Upon the whole we may
176.
An American, AM. HERALD, Jan. 28, 1788, reprinted in 5 DHRC, supra note 4,
at 792, 792.
177. See 5 DHRC, supra note 4, at 549, 589, 661, 698, 833, 843, 869.
178.
The Republican Federalist I, MASS. CENTINEL, Dec. 29, 1787, reprinted in 5
DHRC, supra note 4, at 549, 551–52.
No. 1]
Defying Conventional Wisdom 91
conclude that they will find their authority equal to the im-
portant work that will lay before them . . . .179
This writer—opining before sides were formed—agreed with
both the Federalists and the Anti-Federalists after the Conven-
tion that the relevant instructions to the delegates were issued
by their respective states.
a. Anti-Federalist Views
Perhaps the most famous Anti-Federalist was Virginia’s Pat-
rick Henry. He led a nearly successful effort to defeat the ratifi-
cation of the Constitution in that state’s convention.180 But, ear-
ly 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 Depu-
ties to meet at Annapolis, to consult with those from some oth-
er 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.181
Henry’s maneuver demonstrates that he believed that the con-
trolling instructions were to be found, not in a congressional
measure, but in the two Virginia acts which appointed dele-
gates 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.182 The core of their argument was that the Conven-
tion 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,”183 their letter
identifies what they believed to be the controlling source of those
179.
To the Political Freethinkers of America, N.Y. DAILY ADVERTISER, May 24, 1787,
reprinted in 13 DHRC, supra note 4, at 113, 114.
180. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 897–900.
181. Virginia Convention Debates (June 4, 1788), reprinted in 9 DHRC, supra note
4, at 915, 917.
182.
The Report of New York’s Delegates to the Constitutional Convention, N.Y. DAI-
LY
ADVERTISER, Jan. 14, 1788, reprinted in 15 DHRC, supra note 4, at 366.
183. Id. at 369.
90
Harvard Journal of Law & Public Policy
[Vol. 40
agreed to by all the States; and that as the people were so very
zealous for a good Federal Government . . . .”176 A series of An-
ti-Federalist articles appeared in the Massachusetts Centinel
from December 29th, 1787 through February 6th, 1788.177 In the
first installment, this writer admitted that the Constitutional
Convention originated in the Virginia legislature:
The Federal Convention was first proposed by the legisla-
ture 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 usurpa-
tion and tyranny of Great-Britain, and has now proclaimed
the necessity of more power and energy in our federal gov-
ernment . . . .
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 . . . .178
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.
2. Who gave the delegates their instructions?
An article in the New York Daily Advertiser on May 24,
1787, may provide us the most objective view on the source of
the delegates’ authority since it was published the day before
the Convention began its work. No one yet had a reason to
claim that the delegates had violated their instructions.
[W]e are informed, that the authority granted to their dele-
gates, by some states, are very extensive; by others even
general, and by all much enlarged. Upon the whole we may
176.
An American, AM. HERALD, Jan. 28, 1788, reprinted in 5 DHRC, supra note 4,
at 792, 792.
177. See 5 DHRC, supra note 4, at 549, 589, 661, 698, 833, 843, 869.
178.
The Republican Federalist I, MASS. CENTINEL, Dec. 29, 1787, reprinted in 5
DHRC, supra note 4, at 549, 551–52.
No. 1]
Defying Conventional Wisdom
conclude that they will find their authority equal to the im-
portant work that will lay before them . . . .179
This writer—opining before sides were formed—agreed with
both the Federalists and the Anti-Federalists after the Conven-
tion that the relevant instructions to the delegates were issued
by their respective states.
a. Anti-Federalist Views
Perhaps the most famous Anti-Federalist was Virginia’s P
rick Henry. He led a nearly successful effort to defeat the rat
cation of the Constitution in that state’s convention.180 But, e
ly 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 Depu-
ties to meet at Annapolis, to consult with those from some oth-
er 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.181
Henry’s maneuver demonstrates that he believed that the con-
trolling instructions were to be found, not in a congressional
measure, but in the two Virginia acts which appointed dele-
gates to Annapolis and Philadelphia.
One of the most widely circulated Anti-Federalist attacks
against the legitimacy of the Convention was a letter from Rober
Yates and John Lansing, Jr. explaining their early exit from
Convention.182 The core of their argument was that the Conve
tion had violated its restricted purpose. After reciting the famil
language that the convention had been confined to the “sole and
express purpose of revising the articles of Confederation,”183 their lett
identifies what they believed to be the controlling source of tho
179.
To the Political Freethinkers of America, N.Y. DAILY ADVERTISER, May 24, 1787
reprinted in 13 DHRC, supra note 4, at 113, 114.
180. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 897–900.
181. Virginia Convention Debates (June 4, 1788), reprinted in 9 DHRC, supra no
4, at 915, 917.
182.
The Report of New York’s Delegates to the Constitutional Convention, N.Y
LY
ADVERTISER, Jan. 14, 1788, reprinted in 15 DHRC, supra note 4, at 366.
183. Id. at 369.
95
90
Harvard Journal of Law & Public Policy
[Vol. 40
agreed to by all the States; and that as the people were so very
zealous for a good Federal Government . . . .”176 A series of An-
ti-Federalist articles appeared in the Massachusetts Centinel
from December 29th, 1787 through February 6th, 1788.177 In the
first installment, this writer admitted that the Constitutional
Convention originated in the Virginia legislature:
The Federal Convention was first proposed by the legisla-
ture 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 usurpa-
tion and tyranny of Great-Britain, and has now proclaimed
the necessity of more power and energy in our federal gov-
ernment . . . .
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 . . . .178
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.
2. Who gave the delegates their instructions?
An article in the New York Daily Advertiser on May 24,
1787, may provide us the most objective view on the source of
the delegates’ authority since it was published the day before
the Convention began its work. No one yet had a reason to
claim that the delegates had violated their instructions.
[W]e are informed, that the authority granted to their dele-
gates, by some states, are very extensive; by others even
general, and by all much enlarged. Upon the whole we may
176.
An American, AM. HERALD, Jan. 28, 1788, reprinted in 5 DHRC, supra note 4,
at 792, 792.
177. See 5 DHRC, supra note 4, at 549, 589, 661, 698, 833, 843, 869.
178.
The Republican Federalist I, MASS. CENTINEL, Dec. 29, 1787, reprinted in 5
DHRC, supra note 4, at 549, 551–52.
No. 1]
Defying Conventional Wisdom 91
conclude that they will find their authority equal to the im-
portant work that will lay before them . . . .179
This writer—opining before sides were formed—agreed with
both the Federalists and the Anti-Federalists after the Conven-
tion that the relevant instructions to the delegates were issued
by their respective states.
a. Anti-Federalist Views
Perhaps the most famous Anti-Federalist was Virginia’s Pat-
rick Henry. He led a nearly successful effort to defeat the ratifi-
cation of the Constitution in that state’s convention.180 But, ear-
ly 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 Depu-
ties to meet at Annapolis, to consult with those from some oth-
er 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.181
Henry’s maneuver demonstrates that he believed that the con-
trolling instructions were to be found, not in a congressional
measure, but in the two Virginia acts which appointed dele-
gates 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.182 The core of their argument was that the Conven-
tion 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,”183 their letter
identifies what they believed to be the controlling source of those
179.
To the Political Freethinkers of America, N.Y. DAILY ADVERTISER, May 24, 1787,
reprinted in 13 DHRC, supra note 4, at 113, 114.
180. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 897–900.
181. Virginia Convention Debates (June 4, 1788), reprinted in 9 DHRC, supra note
4, at 915, 917.
182.
The Report of New York’s Delegates to the Constitutional Convention, N.Y. DAI-
LY
ADVERTISER, Jan. 14, 1788, reprinted in 15 DHRC, supra note 4, at 366.
183. Id. at 369.
90
Harvard Journal of Law & Public Policy
[Vol. 40
agreed to by all the States; and that as the people were so very
zealous for a good Federal Government . . . .”176 A series of An-
ti-Federalist articles appeared in the Massachusetts Centinel
from December 29th, 1787 through February 6th, 1788.177 In the
first installment, this writer admitted that the Constitutional
Convention originated in the Virginia legislature:
The Federal Convention was first proposed by the legisla-
ture 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 usurpa-
tion and tyranny of Great-Britain, and has now proclaimed
the necessity of more power and energy in our federal gov-
ernment . . . .
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 . . . .178
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.
2. Who gave the delegates their instructions?
An article in the New York Daily Advertiser on May 24,
1787, may provide us the most objective view on the source of
the delegates’ authority since it was published the day before
the Convention began its work. No one yet had a reason to
claim that the delegates had violated their instructions.
[W]e are informed, that the authority granted to their dele-
gates, by some states, are very extensive; by others even
general, and by all much enlarged. Upon the whole we may
176.
An American, AM. HERALD, Jan. 28, 1788, reprinted in 5 DHRC, supra note 4,
at 792, 792.
177. See 5 DHRC, supra note 4, at 549, 589, 661, 698, 833, 843, 869.
178.
The Republican Federalist I, MASS. CENTINEL, Dec. 29, 1787, reprinted in 5
DHRC, supra note 4, at 549, 551–52.
No. 1]
Defying Conventional Wisdom
conclude that they will find their authority equal to the im-
portant work that will lay before them . . . .179
This writer—opining before sides were formed—agreed with
both the Federalists and the Anti-Federalists after the Conven-
tion that the relevant instructions to the delegates were issued
by their respective states.
a. Anti-Federalist Views
Perhaps the most famous Anti-Federalist was Virginia’s P
rick Henry. He led a nearly successful effort to defeat the rat
cation of the Constitution in that state’s convention.180 But, e
ly 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 Depu-
ties to meet at Annapolis, to consult with those from some oth-
er 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.181
Henry’s maneuver demonstrates that he believed that the con-
trolling instructions were to be found, not in a congressional
measure, but in the two Virginia acts which appointed dele-
gates to Annapolis and Philadelphia.
One of the most widely circulated Anti-Federalist attacks
against the legitimacy of the Convention was a letter from Rober
Yates and John Lansing, Jr. explaining their early exit from
Convention.182 The core of their argument was that the Conve
tion had violated its restricted purpose. After reciting the famil
language that the convention had been confined to the “sole and
express purpose of revising the articles of Confederation,”183 their lett
identifies what they believed to be the controlling source of tho
179.
To the Political Freethinkers of America, N.Y. DAILY ADVERTISER, May 24, 1787
reprinted in 13 DHRC, supra note 4, at 113, 114.
180. Virginia Convention Debates (June 10, 1788), reprinted in 9 DHRC, supra
note 4, at 897–900.
181. Virginia Convention Debates (June 4, 1788), reprinted in 9 DHRC, supra no
4, at 915, 917.
182.
The Report of New York’s Delegates to the Constitutional Convention, N.Y
LY
ADVERTISER, Jan. 14, 1788, reprinted in 15 DHRC, supra note 4, at 366.
183. Id. at 369.
96
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Harvard Journal of Law & Public Policy
[Vol. 40
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.”184 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 ar-
ticles penned by Hugh Hughes under the pen name of “A Coun-
tryman.”185 He decries what seemed to be “a Predetermination of
a Majority of the Members to reject their Instructions, and all au-
thority under which they acted.”186 But earlier in the same para-
graph he recites “the Resolutions of several of the States, for call-
ing a Convention to amend the Confederation”187 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 Con-
gress, 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] provi-
sions as may be necessary to render the articles of the con-
federation adequate to the exigencies of the Union.”188
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.189 He begins
184. Id.
185. See 19 DHRC, supra note 4, at 271, 291, 347, 424.
186. Hugh Hughes, A Countryman I, N.Y.J., Nov. 21, 1787, reprinted in 19 DHRC,
supra note 4, at 271, 273.
187. Id.
188.
A Georgian, GAZETTE ST. GA., Nov. 15, 1787, reprinted in 3 DHRC, supra note
4, at 236, 237.
189. The operative language from the Georgia legislature instructed the dele-
gates: “to join with [other delegates] in devising and discussing all such altera-
tions and farther [sic] provisions, as may be necessary to render the federal consti-
tution 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.
No. 1]
Defying Conventional Wisdom 93
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.”190 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 conven-
tion, for the sole and express purpose of revising and amend-
ing the confederation.”191 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 em-
ployed 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 Arti-
cles of Confederation that could be fixed in a convention of
states.192 He contends that Congress was the initiator and that the
states were in the role of responders.193 All citizens were entitled
to their own opinions, but several Anti-Federalists seemed to be-
lieve 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.
190. Federal Farmer, Letters to the Republican, Nov. 8, 1787, reprinted in 19 DHRC,
supra note 4, at 203, 211.
191. Id.
192. Cato II, N.Y.J., Oct. 11, 1787, reprinted in 19 DHRC, supra note 4, at 79, 81.
193. Id. at 79–82.
92
Harvard Journal of Law & Public Policy
[Vol. 40
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.”184 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 ar-
ticles penned by Hugh Hughes under the pen name of “A Coun-
tryman.”185 He decries what seemed to be “a Predetermination of
a Majority of the Members to reject their Instructions, and all au-
thority under which they acted.”186 But earlier in the same para-
graph he recites “the Resolutions of several of the States, for call-
ing a Convention to amend the Confederation”187 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 Con-
gress, 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] provi-
sions as may be necessary to render the articles of the con-
federation adequate to the exigencies of the Union.”188
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.189 He begins
184. Id.
185. See 19 DHRC, supra note 4, at 271, 291, 347, 424.
186. Hugh Hughes, A Countryman I, N.Y.J., Nov. 21, 1787, reprinted in 19 DHRC,
supra note 4, at 271, 273.
187. Id.
188.
A Georgian, GAZETTE ST. GA., Nov. 15, 1787, reprinted in 3 DHRC, supra note
4, at 236, 237.
189. The operative language from the Georgia legislature instructed the dele-
gates: “to join with [other delegates] in devising and discussing all such altera-
tions and farther [sic] provisions, as may be necessary to render the federal consti-
tution 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.
No. 1]
Defying Conventional Wisdom
by accurately citing the states as the source of the instructions a
then, as was commonly the case, went from fact to fantasy whe
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
launching a plan aimed at “destroying the old constitution, and
making a new one.”190 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 conven-
tion, for the sole and express purpose of revising and amen
ing the confederation.”191 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 the
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 t
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 em-
ployed was improper. However, in a classic straw man argume
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 Art
cles of Confederation that could be fixed in a convention of
states.192 He contends that Congress was the initiator and that th
states were in the role of responders.193 All citizens were entitl
to their own opinions, but several Anti-Federalists seemed to be-
lieve they were also entitled to their own facts.
As we can see, while Anti-Federalists had serious doubts abou
the propriety of the actions of the Convention’s delegates, the
was an overriding acknowledgement within their ranks of o
key legal issue: the sources of the authority for the delegates
the enactments of each of the several state legislatures.
190. Federal Farmer, Letters to the Republican, Nov. 8, 1787, reprinted in 19 DHRC,
supra note 4, at 203, 211.
191. Id.
192. Cato II, N.Y.J., Oct. 11, 1787, reprinted in 19 DHRC, supra note 4, at 79,
193. Id. at 79–82.
97
92
Harvard Journal of Law & Public Policy
[Vol. 40
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.”184 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 ar-
ticles penned by Hugh Hughes under the pen name of “A Coun-
tryman.”185 He decries what seemed to be “a Predetermination of
a Majority of the Members to reject their Instructions, and all au-
thority under which they acted.”186 But earlier in the same para-
graph he recites “the Resolutions of several of the States, for call-
ing a Convention to amend the Confederation”187 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 Con-
gress, 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] provi-
sions as may be necessary to render the articles of the con-
federation adequate to the exigencies of the Union.”188
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.189 He begins
184. Id.
185. See 19 DHRC, supra note 4, at 271, 291, 347, 424.
186. Hugh Hughes, A Countryman I, N.Y.J., Nov. 21, 1787, reprinted in 19 DHRC,
supra note 4, at 271, 273.
187. Id.
188.
A Georgian, GAZETTE ST. GA., Nov. 15, 1787, reprinted in 3 DHRC, supra note
4, at 236, 237.
189. The operative language from the Georgia legislature instructed the dele-
gates: “to join with [other delegates] in devising and discussing all such altera-
tions and farther [sic] provisions, as may be necessary to render the federal consti-
tution 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.
No. 1]
Defying Conventional Wisdom 93
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.”190 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 conven-
tion, for the sole and express purpose of revising and amend-
ing the confederation.”191 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 em-
ployed 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 Arti-
cles of Confederation that could be fixed in a convention of
states.192 He contends that Congress was the initiator and that the
states were in the role of responders.193 All citizens were entitled
to their own opinions, but several Anti-Federalists seemed to be-
lieve 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.
190. Federal Farmer, Letters to the Republican, Nov. 8, 1787, reprinted in 19 DHRC,
supra note 4, at 203, 211.
191. Id.
192. Cato II, N.Y.J., Oct. 11, 1787, reprinted in 19 DHRC, supra note 4, at 79, 81.
193. Id. at 79–82.
92
Harvard Journal of Law & Public Policy
[Vol. 40
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.”184 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 ar-
ticles penned by Hugh Hughes under the pen name of “A Coun-
tryman.”185 He decries what seemed to be “a Predetermination of
a Majority of the Members to reject their Instructions, and all au-
thority under which they acted.”186 But earlier in the same para-
graph he recites “the Resolutions of several of the States, for call-
ing a Convention to amend the Confederation”187 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 Con-
gress, 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] provi-
sions as may be necessary to render the articles of the con-
federation adequate to the exigencies of the Union.”188
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.189 He begins
184. Id.
185. See 19 DHRC, supra note 4, at 271, 291, 347, 424.
186. Hugh Hughes, A Countryman I, N.Y.J., Nov. 21, 1787, reprinted in 19 DHRC,
supra note 4, at 271, 273.
187. Id.
188.
A Georgian, GAZETTE ST. GA., Nov. 15, 1787, reprinted in 3 DHRC, supra note
4, at 236, 237.
189. The operative language from the Georgia legislature instructed the dele-
gates: “to join with [other delegates] in devising and discussing all such altera-
tions and farther [sic] provisions, as may be necessary to render the federal consti-
tution 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.
No. 1]
Defying Conventional Wisdom
by accurately citing the states as the source of the instructions a
then, as was commonly the case, went from fact to fantasy whe
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
launching a plan aimed at “destroying the old constitution, and
making a new one.”190 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 conven-
tion, for the sole and express purpose of revising and amen
ing the confederation.”191 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 the
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 t
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 em-
ployed was improper. However, in a classic straw man argume
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 Art
cles of Confederation that could be fixed in a convention of
states.192 He contends that Congress was the initiator and that th
states were in the role of responders.193 All citizens were entitl
to their own opinions, but several Anti-Federalists seemed to be-
lieve they were also entitled to their own facts.
As we can see, while Anti-Federalists had serious doubts abou
the propriety of the actions of the Convention’s delegates, the
was an overriding acknowledgement within their ranks of o
key legal issue: the sources of the authority for the delegates
the enactments of each of the several state legislatures.
190. Federal Farmer, Letters to the Republican, Nov. 8, 1787, reprinted in 19 DHRC,
supra note 4, at 203, 211.
191. Id.
192. Cato II, N.Y.J., Oct. 11, 1787, reprinted in 19 DHRC, supra note 4, at 79,
193. Id. at 79–82.
98
94
Harvard Journal of Law & Public Policy
[Vol. 40
b. Federalist Views
In Federalist No. 40, Madison posed the question “whether the
convention [was] authorized to frame and propose this mixed
Constitution[?]”194 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.”195 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.196
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 purpos-
es of the union.”197 The states gave the instructions, and the lan-
guage he cites is the most common element of all state appoint-
ments.198 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 Govern-
ment 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
194. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
195. Id.
196. Id. at 254.
197.
House Proceedings and Debates of 24 October, MASS. CENTINEL, Oct. 27, 1787,
reprinted in 4 DHRC, supra note 4, at 135, 136.
198. 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 em-
powered by the letter of the authority under which they acted . . . .”); Oliver Ells-
worth 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).
No. 1]
Defying Conventional Wisdom 95
not several Gentlemen already demonstrated, that the Con-
vention did not exceed their powers?199
Federalist authors defended the charge that the delegates ex-
ceeded their authority in several publications. Curtius II
mocked Cato for making the allegation.200 “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.201 “A Friend to Good Govern-
ment,” in the Poughkeepsie Country Journal, defended the le-
gitimacy of the convention with an accurate review of the
events and documents.202
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 at-
tacked 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 there-
in, as will render the federal Government (not Confedera-
tion) adequate to the exigencies of the Government and the
preservation of the Union[.] In the discharge of this im-
portant trust, I am bold to say, that the Convention have not
199. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
200.
Curtius II, N.Y. DAILY ADVERTISER, Oct. 18, 1787, reprinted in 19 DHRC,
supra note 4, at 97, 97–102.
201.
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 objec-
tions 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.”).
202.
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 in-
struction, 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 ob-
jects.”).
94
Harvard Journal of Law & Public Policy
[Vol. 40
b. Federalist Views
In Federalist No. 40, Madison posed the question “whether the
convention [was] authorized to frame and propose this mixed
Constitution[?]”194 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.”195 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.196
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 purpos-
es of the union.”197 The states gave the instructions, and the lan-
guage he cites is the most common element of all state appoint-
ments.198 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 Govern-
ment 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
194. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
195. Id.
196. Id. at 254.
197.
House Proceedings and Debates of 24 October, MASS. CENTINEL, Oct. 27, 1787,
reprinted in 4 DHRC, supra note 4, at 135, 136.
198. 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 em-
powered by the letter of the authority under which they acted . . . .”); Oliver Ells-
worth 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).
No. 1]
Defying Conventional Wisdom
not several Gentlemen already demonstrated, that the Con-
vention did not exceed their powers?199
Federalist authors defended the charge that the delegates
ceeded their authority in several publications. Curtius I
mocked Cato for making the allegation.200 “One of the People,
writing in the Pennsylvania Gazette, recited that the delega
had been authorized by their states to make alterations—
inherent right of the people.201 “A Friend to Good Gove
ment,” in the Poughkeepsie Country Journal, defended the le-
gitimacy of the convention with an accurate review of the
events and documents.202
The most stinging defenses of the legitimacy of the actions of
the Convention were aimed at New York’s Robert Yates and Jo
Lansing, who had left the convention early and had widely at-
tacked 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 there-
in, as will render the federal Government (not Confedera-
tion) adequate to the exigencies of the Government and the
preservation of the Union[.] In the discharge of this im-
portant trust, I am bold to say, that the Convention have not
199. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
200.
Curtius II, N.Y. DAILY ADVERTISER, Oct. 18, 1787, reprinted in 19 DHRC,
supra note 4, at 97, 97–102.
201.
See One of the People, PENN. GAZETTE, Oct. 17, 1787, reprinted in 2 DHR
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
render the federal government fully adequate to the exigencies of the Union. Had objec-
tions such as these prevailed, America never would have had a Congress, nor ha
America been independent. Alterations in government are always made by the
people.”).
202.
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 woul
render the federal government adequate to the exigencies of government and
preservation of the Union—you will here perceive that the latitude given in the i
struction, 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
jects.”).
99
94
Harvard Journal of Law & Public Policy
[Vol. 40
b. Federalist Views
In Federalist No. 40, Madison posed the question “whether the
convention [was] authorized to frame and propose this mixed
Constitution[?]”194 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.”195 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.196
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 purpos-
es of the union.”197 The states gave the instructions, and the lan-
guage he cites is the most common element of all state appoint-
ments.198 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 Govern-
ment 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
194. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
195. Id.
196. Id. at 254.
197.
House Proceedings and Debates of 24 October, MASS. CENTINEL, Oct. 27, 1787,
reprinted in 4 DHRC, supra note 4, at 135, 136.
198. 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 em-
powered by the letter of the authority under which they acted . . . .”); Oliver Ells-
worth 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).
No. 1]
Defying Conventional Wisdom 95
not several Gentlemen already demonstrated, that the Con-
vention did not exceed their powers?199
Federalist authors defended the charge that the delegates ex-
ceeded their authority in several publications. Curtius II
mocked Cato for making the allegation.200 “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.201 “A Friend to Good Govern-
ment,” in the Poughkeepsie Country Journal, defended the le-
gitimacy of the convention with an accurate review of the
events and documents.202
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 at-
tacked 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 there-
in, as will render the federal Government (not Confedera-
tion) adequate to the exigencies of the Government and the
preservation of the Union[.] In the discharge of this im-
portant trust, I am bold to say, that the Convention have not
199. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
200.
Curtius II, N.Y. DAILY ADVERTISER, Oct. 18, 1787, reprinted in 19 DHRC,
supra note 4, at 97, 97–102.
201.
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 objec-
tions 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.”).
202.
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 in-
struction, 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 ob-
jects.”).
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[Vol. 40
b. Federalist Views
In Federalist No. 40, Madison posed the question “whether the
convention [was] authorized to frame and propose this mixed
Constitution[?]”194 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.”195 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.196
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 purpos-
es of the union.”197 The states gave the instructions, and the lan-
guage he cites is the most common element of all state appoint-
ments.198 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 Govern-
ment 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
194. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
195. Id.
196. Id. at 254.
197.
House Proceedings and Debates of 24 October, MASS. CENTINEL, Oct. 27, 1787,
reprinted in 4 DHRC, supra note 4, at 135, 136.
198. 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 em-
powered by the letter of the authority under which they acted . . . .”); Oliver Ells-
worth 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).
No. 1]
Defying Conventional Wisdom
not several Gentlemen already demonstrated, that the Con-
vention did not exceed their powers?199
Federalist authors defended the charge that the delegates
ceeded their authority in several publications. Curtius I
mocked Cato for making the allegation.200 “One of the People,
writing in the Pennsylvania Gazette, recited that the delega
had been authorized by their states to make alterations—
inherent right of the people.201 “A Friend to Good Gove
ment,” in the Poughkeepsie Country Journal, defended the le-
gitimacy of the convention with an accurate review of the
events and documents.202
The most stinging defenses of the legitimacy of the actions of
the Convention were aimed at New York’s Robert Yates and Jo
Lansing, who had left the convention early and had widely at-
tacked 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 there-
in, as will render the federal Government (not Confedera-
tion) adequate to the exigencies of the Government and the
preservation of the Union[.] In the discharge of this im-
portant trust, I am bold to say, that the Convention have not
199. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
200.
Curtius II, N.Y. DAILY ADVERTISER, Oct. 18, 1787, reprinted in 19 DHRC,
supra note 4, at 97, 97–102.
201.
See One of the People, PENN. GAZETTE, Oct. 17, 1787, reprinted in 2 DHR
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
render the federal government fully adequate to the exigencies of the Union. Had objec-
tions such as these prevailed, America never would have had a Congress, nor ha
America been independent. Alterations in government are always made by the
people.”).
202.
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 woul
render the federal government adequate to the exigencies of government and
preservation of the Union—you will here perceive that the latitude given in the i
struction, 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
jects.”).
100
96
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[Vol. 40
gone beyond the spirit and letter of the authority under
which they acted . . . .203
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 establish-
ing 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?204
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 con-
ceive, 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 pow-
ers 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.205
“The Citizen” turned out to be a lawyer from Albany named
George Metcalf.206 Lansing and Yates were so incensed at his
effective attacks on their actions and character that they
commenced a legal action against him.207 They also sought,
203.
A Dutchess County Farmer, POUGHKEEPSIE COUNTRY J., Feb. 26, 1788, reprint-
ed in 20 DHRC, supra note 4, at 815, 816.
204. Id. at 817.
205.
A Citizen, LANSINGBURGH NORTHERN CENTINEL, Jan. 29, 1788, reprinted in
20 DHRC, supra note 4, at 674, 676–77.
206. See id. at 674.
207.
George Metcalf Defends Himself, ALBANY J., Mar. 1, 1788, reprinted in 20
DHRC, supra note 4, at 832, 832–33.
No. 1]
Defying Conventional Wisdom 97
apparently unsuccessfully, to determine the identity of the
Duchess County Farmer.208
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 ven-
ues, the Federalists responded to the charges with timely
and effective arguments. The overwhelming evidence is that
the Federalists believed that they had repeatedly and suc-
cessfully defeated these claims. As John Marshall said:
“Have not several Gentlemen already demonstrated, that the
Convention did not exceed their powers?”209
3. Was the Convention unlawful from the beginning?
The most extreme Anti-Federalist argument was proffered by
Abraham Yates, Jr., of New York. He argued that every stage of
the process was illegal. The New York legislature violated the
state constitution, when on February 19th, 1787, it voted to in-
struct the state’s delegates in Congress to recommend a conven-
tion to propose amendments to the articles.210 Congress violated
Article XIII of the Articles of Confederation when it voted on Feb-
ruary 21st “to recommend a convention to the several legisla-
tures.”211 The New York Senate and Assembly violated the state
constitution yet again, he contended, by voting on March 27th to
appoint delegates to the convention in Philadelphia.212
Yates continued the list of alleged violations to include the Sep-
tember 17th vote of the Convention to approve the Constitution,
the refusal of Congress to defeat the Constitution on September
28th, and the action of the New York legislature in February 1788
to call the ratification convention.213 Yates’ argument was not
based on the parsing of the language of state instructions and
congressional resolutions. He contended that “to attempt a con-
solidation of the union and utterly destroy the confederation, and
208. See Letter from Abraham G. Lansing to Abraham Yates, Jr. (Mar. 2, 1788),
reprinted in 20 DHRC, supra note 4, at 835.
209. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
210.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1156.
211. Id.
212. Id. at 1156–57.
213. Id. at 1157.
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[Vol. 40
gone beyond the spirit and letter of the authority under
which they acted . . . .203
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 establish-
ing 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?204
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 con-
ceive, 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 pow-
ers 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.205
“The Citizen” turned out to be a lawyer from Albany named
George Metcalf.206 Lansing and Yates were so incensed at his
effective attacks on their actions and character that they
commenced a legal action against him.207 They also sought,
203.
A Dutchess County Farmer, POUGHKEEPSIE COUNTRY J., Feb. 26, 1788, reprint-
ed in 20 DHRC, supra note 4, at 815, 816.
204. Id. at 817.
205.
A Citizen, LANSINGBURGH NORTHERN CENTINEL, Jan. 29, 1788, reprinted in
20 DHRC, supra note 4, at 674, 676–77.
206. See id. at 674.
207.
George Metcalf Defends Himself, ALBANY J., Mar. 1, 1788, reprinted in 20
DHRC, supra note 4, at 832, 832–33.
No. 1]
Defying Conventional Wisdom
apparently unsuccessfully, to determine the identity of t
Duchess County Farmer.208
The charge that the Convention exceeded its authority wa
leveled in state legislatures, ratification conventions, and
the public debates in the papers. In every one of those ve
ues, the Federalists responded to the charges with time
and effective arguments. The overwhelming evidence is that
the Federalists believed that they had repeatedly and su
cessfully defeated these claims. As John Marshall sa
“Have not several Gentlemen already demonstrated, that t
Convention did not exceed their powers?”209
3. Was the Convention unlawful from the beginning?
The most extreme Anti-Federalist argument was proffered
Abraham Yates, Jr., of New York. He argued that every stage
the process was illegal. The New York legislature violated the
state constitution, when on February 19th, 1787, it voted to i
struct the state’s delegates in Congress to recommend a conve
tion to propose amendments to the articles.210 Congress violated
Article XIII of the Articles of Confederation when it voted on F
ruary 21st “to recommend a convention to the several legisla-
tures.”211 The New York Senate and Assembly violated the st
constitution yet again, he contended, by voting on March 27th
appoint delegates to the convention in Philadelphia.212
Yates continued the list of alleged violations to include the Se
tember 17th vote of the Convention to approve the Constitution,
the refusal of Congress to defeat the Constitution on September
28th, and the action of the New York legislature in February 1788
to call the ratification convention.213 Yates’ argument was n
based on the parsing of the language of state instructions an
congressional resolutions. He contended that “to attempt a co
solidation of the union and utterly destroy the confederation, a
208. See Letter from Abraham G. Lansing to Abraham Yates, Jr. (Mar. 2, 1788)
reprinted in 20 DHRC, supra note 4, at 835.
209. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
210.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153
1156.
211. Id.
212. Id. at 1156–57.
213. Id. at 1157.
101
96
Harvard Journal of Law & Public Policy
[Vol. 40
gone beyond the spirit and letter of the authority under
which they acted . . . .203
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 establish-
ing 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?204
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 con-
ceive, 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 pow-
ers 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.205
“The Citizen” turned out to be a lawyer from Albany named
George Metcalf.206 Lansing and Yates were so incensed at his
effective attacks on their actions and character that they
commenced a legal action against him.207 They also sought,
203.
A Dutchess County Farmer, POUGHKEEPSIE COUNTRY J., Feb. 26, 1788, reprint-
ed in 20 DHRC, supra note 4, at 815, 816.
204. Id. at 817.
205.
A Citizen, LANSINGBURGH NORTHERN CENTINEL, Jan. 29, 1788, reprinted in
20 DHRC, supra note 4, at 674, 676–77.
206. See id. at 674.
207.
George Metcalf Defends Himself, ALBANY J., Mar. 1, 1788, reprinted in 20
DHRC, supra note 4, at 832, 832–33.
No. 1]
Defying Conventional Wisdom 97
apparently unsuccessfully, to determine the identity of the
Duchess County Farmer.208
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 ven-
ues, the Federalists responded to the charges with timely
and effective arguments. The overwhelming evidence is that
the Federalists believed that they had repeatedly and suc-
cessfully defeated these claims. As John Marshall said:
“Have not several Gentlemen already demonstrated, that the
Convention did not exceed their powers?”209
3. Was the Convention unlawful from the beginning?
The most extreme Anti-Federalist argument was proffered by
Abraham Yates, Jr., of New York. He argued that every stage of
the process was illegal. The New York legislature violated the
state constitution, when on February 19th, 1787, it voted to in-
struct the state’s delegates in Congress to recommend a conven-
tion to propose amendments to the articles.210 Congress violated
Article XIII of the Articles of Confederation when it voted on Feb-
ruary 21st “to recommend a convention to the several legisla-
tures.”211 The New York Senate and Assembly violated the state
constitution yet again, he contended, by voting on March 27th to
appoint delegates to the convention in Philadelphia.212
Yates continued the list of alleged violations to include the Sep-
tember 17th vote of the Convention to approve the Constitution,
the refusal of Congress to defeat the Constitution on September
28th, and the action of the New York legislature in February 1788
to call the ratification convention.213 Yates’ argument was not
based on the parsing of the language of state instructions and
congressional resolutions. He contended that “to attempt a con-
solidation of the union and utterly destroy the confederation, and
208. See Letter from Abraham G. Lansing to Abraham Yates, Jr. (Mar. 2, 1788),
reprinted in 20 DHRC, supra note 4, at 835.
209. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
210.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1156.
211. Id.
212. Id. at 1156–57.
213. Id. at 1157.
96
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[Vol. 40
gone beyond the spirit and letter of the authority under
which they acted . . . .203
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 establish-
ing 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?204
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 con-
ceive, 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 pow-
ers 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.205
“The Citizen” turned out to be a lawyer from Albany named
George Metcalf.206 Lansing and Yates were so incensed at his
effective attacks on their actions and character that they
commenced a legal action against him.207 They also sought,
203.
A Dutchess County Farmer, POUGHKEEPSIE COUNTRY J., Feb. 26, 1788, reprint-
ed in 20 DHRC, supra note 4, at 815, 816.
204. Id. at 817.
205.
A Citizen, LANSINGBURGH NORTHERN CENTINEL, Jan. 29, 1788, reprinted in
20 DHRC, supra note 4, at 674, 676–77.
206. See id. at 674.
207.
George Metcalf Defends Himself, ALBANY J., Mar. 1, 1788, reprinted in 20
DHRC, supra note 4, at 832, 832–33.
No. 1]
Defying Conventional Wisdom
apparently unsuccessfully, to determine the identity of t
Duchess County Farmer.208
The charge that the Convention exceeded its authority wa
leveled in state legislatures, ratification conventions, and
the public debates in the papers. In every one of those ve
ues, the Federalists responded to the charges with time
and effective arguments. The overwhelming evidence is that
the Federalists believed that they had repeatedly and su
cessfully defeated these claims. As John Marshall sa
“Have not several Gentlemen already demonstrated, that t
Convention did not exceed their powers?”209
3. Was the Convention unlawful from the beginning?
The most extreme Anti-Federalist argument was proffered
Abraham Yates, Jr., of New York. He argued that every stage
the process was illegal. The New York legislature violated the
state constitution, when on February 19th, 1787, it voted to i
struct the state’s delegates in Congress to recommend a conve
tion to propose amendments to the articles.210 Congress violated
Article XIII of the Articles of Confederation when it voted on F
ruary 21st “to recommend a convention to the several legisla-
tures.”211 The New York Senate and Assembly violated the st
constitution yet again, he contended, by voting on March 27th
appoint delegates to the convention in Philadelphia.212
Yates continued the list of alleged violations to include the Se
tember 17th vote of the Convention to approve the Constitution,
the refusal of Congress to defeat the Constitution on September
28th, and the action of the New York legislature in February 1788
to call the ratification convention.213 Yates’ argument was n
based on the parsing of the language of state instructions an
congressional resolutions. He contended that “to attempt a co
solidation of the union and utterly destroy the confederation, a
208. See Letter from Abraham G. Lansing to Abraham Yates, Jr. (Mar. 2, 1788)
reprinted in 20 DHRC, supra note 4, at 835.
209. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
210.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153
1156.
211. Id.
212. Id. at 1156–57.
213. Id. at 1157.
102
98
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[Vol. 40
the sovereignty of particular states” was beyond the authority
granted to any state legislature in their respective constitutions
and beyond the power of Congress in the Articles of Confedera-
tion.214 To justify the kind of government created by the Constitu-
tion, Yates apparently believed that the people of every state
would first need to amend their state constitutions to give their
legislatures the power to enter into such a government. Then the
states would be authorized to direct their delegates in Congress to
propose amendments to the Articles of Confederation in accord
with the new state constitutional provisions. Finally, Congress
would be required to approve the new measure followed by the
unanimous consent of the legislatures of every state. This position
was echoed in delegate instructions drafted by the town of Great
Barrington, Massachusetts215—a community that was at the center
of Shay’s Rebellion.216
Yates does help us understand the true nature of the Anti-
Federalist argument. They were not contending that they ex-
pected a series of discrete amendments to the Articles of Con-
federation. The New Jersey Plan would have also required a
wholesale revision of that document. Anti-Federalists contend-
ed that no one was authorized at any point to adopt a govern-
ment that was national rather than federal in character.217 The
Convention was condemned not for creating a whole new doc-
ument, but for creating a government with a new nature. Anti-
Federalists conceded the key procedural points—the states
called the convention and the states gave their delegates their
instructions. To have contended otherwise would have turned
Anti-Federalist doctrine on its head. Advocates for state su-
premacy simply could not argue that Congress had an implied
power to call a convention and that the states’ delegates were
bound to follow the will of Congress. Contemporary practice
was exactly the opposite. State legislatures routinely instructed
their delegations in Congress.218 No one would have the audac-
214. Id.
215. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
216. Stephen T. Riley, Dr. William Whiting and Shays’ Rebellion, 66 PROC. OF THE
AM. ANTIQUARIAN SOC’Y 119, 120 (1957).
217. See, e.g., 1 FARRAND’S RECORDS, supra note 107, at 34, 42–43.
218.
See, e.g., 5 THE PAPERS OF JAMES MADISON 231–34 (William T. Hutchinson et
al. eds., 1962).
No. 1]
Defying Conventional Wisdom 99
ity to contend the reverse was true—especially not a self-
respecting Anti-Federalist.
4. The “Runaway Convention” theory was tested and rejected
The Anti-Federalists’ claim that the delegates to the Conven-
tion exceeded their authority was put to a vote in New York
and Massachusetts—the only two states that tracked the con-
gressional language in their delegates’ instructions.
The New York legislature was decidedly anti-reform—it
systematically rejected amendments to the Articles of Con-
federation and had done its best to derail the Philadelphia
Convention by proposing a limited alternative in Con-
gress.219 It is unsurprising, therefore, that there was a motion
in the New York legislature to condemn the work of the
Constitutional Convention as an ultra vires proposal. On
January 31st, 1788, Cornelius C. Schoonmaker and Samuel
Jones proposed a resolution which recited that “the Senate
and Assembly of this State” had “appointed Delegates” to
the Philadelphia convention “for the sole and express pur-
pose of revising the articles of confederation.”220 To this
point, the resolution was correct since it focused solely on
the language employed by the New York legislature. How-
ever, the resolution then claimed that the “Delegates from
several of the States” met in Philadelphia “for the purpose
aforesaid.”221 Based on this inaccurate recitation of the cre-
dentials from the other states, the resolution claimed that
“instead of revising and reporting alterations and provisions
in the Articles of Confederation” the delegates “have report-
ed a new Constitution for the United States” which “will ma-
terially alter the Constitution and Government of this
State.”222 A contentious debate ensued, but ultimately the
legislature of this Anti-Federalist-leaning state defeated the
motion by a vote of 27 to 25.223
219.
See supra notes 81–84 and accompanying text; 32 JOURNALS OF CONGRESS,
supra note 70, at 72–73.
220. Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note 4, at
703, 703.
221. Id.
222. Id. at 704.
223. Id.
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Harvard Journal of Law & Public Policy
[Vol. 40
the sovereignty of particular states” was beyond the authority
granted to any state legislature in their respective constitutions
and beyond the power of Congress in the Articles of Confedera-
tion.214 To justify the kind of government created by the Constitu-
tion, Yates apparently believed that the people of every state
would first need to amend their state constitutions to give their
legislatures the power to enter into such a government. Then the
states would be authorized to direct their delegates in Congress to
propose amendments to the Articles of Confederation in accord
with the new state constitutional provisions. Finally, Congress
would be required to approve the new measure followed by the
unanimous consent of the legislatures of every state. This position
was echoed in delegate instructions drafted by the town of Great
Barrington, Massachusetts215—a community that was at the center
of Shay’s Rebellion.216
Yates does help us understand the true nature of the Anti-
Federalist argument. They were not contending that they ex-
pected a series of discrete amendments to the Articles of Con-
federation. The New Jersey Plan would have also required a
wholesale revision of that document. Anti-Federalists contend-
ed that no one was authorized at any point to adopt a govern-
ment that was national rather than federal in character.217 The
Convention was condemned not for creating a whole new doc-
ument, but for creating a government with a new nature. Anti-
Federalists conceded the key procedural points—the states
called the convention and the states gave their delegates their
instructions. To have contended otherwise would have turned
Anti-Federalist doctrine on its head. Advocates for state su-
premacy simply could not argue that Congress had an implied
power to call a convention and that the states’ delegates were
bound to follow the will of Congress. Contemporary practice
was exactly the opposite. State legislatures routinely instructed
their delegations in Congress.218 No one would have the audac-
214. Id.
215. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
216. Stephen T. Riley, Dr. William Whiting and Shays’ Rebellion, 66 PROC. OF THE
AM. ANTIQUARIAN SOC’Y 119, 120 (1957).
217. See, e.g., 1 FARRAND’S RECORDS, supra note 107, at 34, 42–43.
218.
See, e.g., 5 THE PAPERS OF JAMES MADISON 231–34 (William T. Hutchinson et
al. eds., 1962).
No. 1]
Defying Conventional Wisdom
ity to contend the reverse was true—especially not a self-
respecting Anti-Federalist.
4. The “Runaway Convention” theory was tested and rejected
The Anti-Federalists’ claim that the delegates to the Conven-
tion exceeded their authority was put to a vote in New York
and Massachusetts—the only two states that tracked the con-
gressional language in their delegates’ instructions.
The New York legislature was decidedly anti-reform—it
systematically rejected amendments to the Articles of Con-
federation and had done its best to derail the Philadelphia
Convention by proposing a limited alternative in Con-
gress.219 It is unsurprising, therefore, that there was a motion
in the New York legislature to condemn the work of the
Constitutional Convention as an ultra vires proposal. On
January 31st, 1788, Cornelius C. Schoonmaker and Samu
Jones proposed a resolution which recited that “the Senat
and Assembly of this State” had “appointed Delegates” t
the Philadelphia convention “for the sole and express pur-
pose of revising the articles of confederation.”220 To th
point, the resolution was correct since it focused solely
the language employed by the New York legislature. Ho
ever, the resolution then claimed that the “Delegates from
several of the States” met in Philadelphia “for the purpos
aforesaid.”221 Based on this inaccurate recitation of the cre-
dentials from the other states, the resolution claimed that
“instead of revising and reporting alterations and provisio
in the Articles of Confederation” the delegates “have report-
ed a new Constitution for the United States” which “will ma-
terially alter the Constitution and Government of this
State.”222 A contentious debate ensued, but ultimately th
legislature of this Anti-Federalist-leaning state defeated the
motion by a vote of 27 to 25.223
219.
See supra notes 81–84 and accompanying text; 32 JOURNALS OF CONGRESS
supra note 70, at 72–73.
220. Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note
703, 703.
221. Id.
222. Id. at 704.
223. Id.
103
98
Harvard Journal of Law & Public Policy
[Vol. 40
the sovereignty of particular states” was beyond the authority
granted to any state legislature in their respective constitutions
and beyond the power of Congress in the Articles of Confedera-
tion.214 To justify the kind of government created by the Constitu-
tion, Yates apparently believed that the people of every state
would first need to amend their state constitutions to give their
legislatures the power to enter into such a government. Then the
states would be authorized to direct their delegates in Congress to
propose amendments to the Articles of Confederation in accord
with the new state constitutional provisions. Finally, Congress
would be required to approve the new measure followed by the
unanimous consent of the legislatures of every state. This position
was echoed in delegate instructions drafted by the town of Great
Barrington, Massachusetts215—a community that was at the center
of Shay’s Rebellion.216
Yates does help us understand the true nature of the Anti-
Federalist argument. They were not contending that they ex-
pected a series of discrete amendments to the Articles of Con-
federation. The New Jersey Plan would have also required a
wholesale revision of that document. Anti-Federalists contend-
ed that no one was authorized at any point to adopt a govern-
ment that was national rather than federal in character.217 The
Convention was condemned not for creating a whole new doc-
ument, but for creating a government with a new nature. Anti-
Federalists conceded the key procedural points—the states
called the convention and the states gave their delegates their
instructions. To have contended otherwise would have turned
Anti-Federalist doctrine on its head. Advocates for state su-
premacy simply could not argue that Congress had an implied
power to call a convention and that the states’ delegates were
bound to follow the will of Congress. Contemporary practice
was exactly the opposite. State legislatures routinely instructed
their delegations in Congress.218 No one would have the audac-
214. Id.
215. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
216. Stephen T. Riley, Dr. William Whiting and Shays’ Rebellion, 66 PROC. OF THE
AM. ANTIQUARIAN SOC’Y 119, 120 (1957).
217. See, e.g., 1 FARRAND’S RECORDS, supra note 107, at 34, 42–43.
218.
See, e.g., 5 THE PAPERS OF JAMES MADISON 231–34 (William T. Hutchinson et
al. eds., 1962).
No. 1]
Defying Conventional Wisdom 99
ity to contend the reverse was true—especially not a self-
respecting Anti-Federalist.
4. The “Runaway Convention” theory was tested and rejected
The Anti-Federalists’ claim that the delegates to the Conven-
tion exceeded their authority was put to a vote in New York
and Massachusetts—the only two states that tracked the con-
gressional language in their delegates’ instructions.
The New York legislature was decidedly anti-reform—it
systematically rejected amendments to the Articles of Con-
federation and had done its best to derail the Philadelphia
Convention by proposing a limited alternative in Con-
gress.219 It is unsurprising, therefore, that there was a motion
in the New York legislature to condemn the work of the
Constitutional Convention as an ultra vires proposal. On
January 31st, 1788, Cornelius C. Schoonmaker and Samuel
Jones proposed a resolution which recited that “the Senate
and Assembly of this State” had “appointed Delegates” to
the Philadelphia convention “for the sole and express pur-
pose of revising the articles of confederation.”220 To this
point, the resolution was correct since it focused solely on
the language employed by the New York legislature. How-
ever, the resolution then claimed that the “Delegates from
several of the States” met in Philadelphia “for the purpose
aforesaid.”221 Based on this inaccurate recitation of the cre-
dentials from the other states, the resolution claimed that
“instead of revising and reporting alterations and provisions
in the Articles of Confederation” the delegates “have report-
ed a new Constitution for the United States” which “will ma-
terially alter the Constitution and Government of this
State.”222 A contentious debate ensued, but ultimately the
legislature of this Anti-Federalist-leaning state defeated the
motion by a vote of 27 to 25.223
219.
See supra notes 81–84 and accompanying text; 32 JOURNALS OF CONGRESS,
supra note 70, at 72–73.
220. Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note 4, at
703, 703.
221. Id.
222. Id. at 704.
223. Id.
98
Harvard Journal of Law & Public Policy
[Vol. 40
the sovereignty of particular states” was beyond the authority
granted to any state legislature in their respective constitutions
and beyond the power of Congress in the Articles of Confedera-
tion.214 To justify the kind of government created by the Constitu-
tion, Yates apparently believed that the people of every state
would first need to amend their state constitutions to give their
legislatures the power to enter into such a government. Then the
states would be authorized to direct their delegates in Congress to
propose amendments to the Articles of Confederation in accord
with the new state constitutional provisions. Finally, Congress
would be required to approve the new measure followed by the
unanimous consent of the legislatures of every state. This position
was echoed in delegate instructions drafted by the town of Great
Barrington, Massachusetts215—a community that was at the center
of Shay’s Rebellion.216
Yates does help us understand the true nature of the Anti-
Federalist argument. They were not contending that they ex-
pected a series of discrete amendments to the Articles of Con-
federation. The New Jersey Plan would have also required a
wholesale revision of that document. Anti-Federalists contend-
ed that no one was authorized at any point to adopt a govern-
ment that was national rather than federal in character.217 The
Convention was condemned not for creating a whole new doc-
ument, but for creating a government with a new nature. Anti-
Federalists conceded the key procedural points—the states
called the convention and the states gave their delegates their
instructions. To have contended otherwise would have turned
Anti-Federalist doctrine on its head. Advocates for state su-
premacy simply could not argue that Congress had an implied
power to call a convention and that the states’ delegates were
bound to follow the will of Congress. Contemporary practice
was exactly the opposite. State legislatures routinely instructed
their delegations in Congress.218 No one would have the audac-
214. Id.
215. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
216. Stephen T. Riley, Dr. William Whiting and Shays’ Rebellion, 66 PROC. OF THE
AM. ANTIQUARIAN SOC’Y 119, 120 (1957).
217. See, e.g., 1 FARRAND’S RECORDS, supra note 107, at 34, 42–43.
218.
See, e.g., 5 THE PAPERS OF JAMES MADISON 231–34 (William T. Hutchinson et
al. eds., 1962).
No. 1]
Defying Conventional Wisdom
ity to contend the reverse was true—especially not a self-
respecting Anti-Federalist.
4. The “Runaway Convention” theory was tested and rejected
The Anti-Federalists’ claim that the delegates to the Conven-
tion exceeded their authority was put to a vote in New York
and Massachusetts—the only two states that tracked the con-
gressional language in their delegates’ instructions.
The New York legislature was decidedly anti-reform—it
systematically rejected amendments to the Articles of Con-
federation and had done its best to derail the Philadelphia
Convention by proposing a limited alternative in Con-
gress.219 It is unsurprising, therefore, that there was a motion
in the New York legislature to condemn the work of the
Constitutional Convention as an ultra vires proposal. On
January 31st, 1788, Cornelius C. Schoonmaker and Samu
Jones proposed a resolution which recited that “the Senat
and Assembly of this State” had “appointed Delegates” t
the Philadelphia convention “for the sole and express pur-
pose of revising the articles of confederation.”220 To th
point, the resolution was correct since it focused solely
the language employed by the New York legislature. Ho
ever, the resolution then claimed that the “Delegates from
several of the States” met in Philadelphia “for the purpos
aforesaid.”221 Based on this inaccurate recitation of the cre-
dentials from the other states, the resolution claimed that
“instead of revising and reporting alterations and provisio
in the Articles of Confederation” the delegates “have report-
ed a new Constitution for the United States” which “will ma-
terially alter the Constitution and Government of this
State.”222 A contentious debate ensued, but ultimately th
legislature of this Anti-Federalist-leaning state defeated the
motion by a vote of 27 to 25.223
219.
See supra notes 81–84 and accompanying text; 32 JOURNALS OF CONGRESS
supra note 70, at 72–73.
220. Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note
703, 703.
221. Id.
222. Id. at 704.
223. Id.
104
100
Harvard Journal of Law & Public Policy
[Vol. 40
A similar debate arose in the Massachusetts legislature. Dr.
Kilham argued that the Convention had “assum[ed] powers not
delegated to them by their commission.”224 Immediately thereaf-
ter the Massachusetts House voted to call the ratification con-
vention by a vote of 129 to 32.225 A more specific resolution was
made in the Massachusetts ratification convention. “Mr. Bishop”
from Rehoboth, moved to “strike out all that related to the Con-
stitution” and to “insert a clause” in which “the General Con-
vention was charged with exceeding their powers & recom-
mending measures which might involve the Country in
blood.”226 The motion was defeated by a vote of “90 & od to 50 &
od.”227 The final ratification by Massachusetts recites that the
people of the United States had the opportunity to enter into “an
explicit & solemn Compact” “without fraud or surprise.”228
In addition to these formal defeats in the very states that had
relied on the restrictive language from Congress, an Anti-
Federalist critic penned an article in the New York Daily Ad-
vertiser that demonstrated that the general public in that city
rejected these claims. “Curtiopolis” claimed that the “Conven-
tion were delegated to amend our political Constitution, instead
of which they altered it.”229 He accused the delegates of “detest-
able hypocricy” and claimed that “their deeds were evil.”230 Fo-
cusing in on Alexander Hamilton, Curtiopolis urged the read-
ers “to take good notice of that vile conspirator, the author of
Publius: I think he might be impeached for high treason: he
continues to do infinite mischief among readers: this whole city,
except about forty [or] fifty of us, are all bewitched with him,
and he is a playing the very devil elsewhere.”231 This Anti-
Federalist writer openly admitted that only forty or fifty people
in New York City agreed with his strident position—the rest of
the population were “bewitched.”
224. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at 135,
135.
225. Id. at 138.
226. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
227. Id.
228. 16 DHRC, supra note 4, at 68.
229.
Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 20 DHRC,
supra note 4, at 625, 625.
230. Id. at 625–26.
231. Id. at 628.
No. 1]
Defying Conventional Wisdom 101
While it is clear that the allegation of ultra vires action was
widely asserted, this view was decisively rejected in the two
states that had the only plausible basis for raising the conten-
tion. It was a minority view, often accompanied by inflamma-
tory charges against the delegates to the Convention.
II. WAS THE CONSTITUTION PROPERLY RATIFIED?
The most common modern attack against the legitimacy of
the Constitution has been addressed—the delegates did not
exceed the authority granted to them by their states. Neither
Federalists nor Anti-Federalists contended that the calling of
the Convention was premised on the language of Article XIII of
the Articles of Confederation. But, when critics of the Constitu-
tion’s adoption turn to the ratification process, they suddenly
shift gears. They claim the Constitution was not properly rati-
fied when it was adopted because the process found in Article
XIII was not followed. This Article specified that amendments
had to be ratified by all thirteen states—rather than being ap-
proved by specially called conventions in just nine states.
Logically, if the Convention was not called under the authority
of the Articles to begin with, as most concede, it makes little sense
to argue that the Convention needed to follow the ratification
process contained therein. This confusion is understandable be-
cause, prior to the Convention, the clear expectation was that the
work product from Philadelphia would be first sent to Congress
and then would be adopted only when ratified by all thirteen leg-
islatures. But, as we see below, the source of this rule was not Ar-
ticle XIII, but the resolutions from the states, which had called the
Convention and given instructions to their delegates.
However, we will also discover that most critics have over-
looked two important steps taken in the process of adopting
the Constitution. The Convention enacted two formal
measures. One was the Constitution itself. The second was a
formal proposal concerning a change in the ratification process.
Congress and all thirteen state legislatures approved this
change in process. The expected process was used to approve a
process designed to obtain the consent of the governed. This
two-stage endeavor was aimed to satisfy both the legal re-
quirements from the old system and the moral claim that the
Constitution should be approved by the people themselves.
100
Harvard Journal of Law & Public Policy
[Vol. 40
A similar debate arose in the Massachusetts legislature. Dr.
Kilham argued that the Convention had “assum[ed] powers not
delegated to them by their commission.”224 Immediately thereaf-
ter the Massachusetts House voted to call the ratification con-
vention by a vote of 129 to 32.225 A more specific resolution was
made in the Massachusetts ratification convention. “Mr. Bishop”
from Rehoboth, moved to “strike out all that related to the Con-
stitution” and to “insert a clause” in which “the General Con-
vention was charged with exceeding their powers & recom-
mending measures which might involve the Country in
blood.”226 The motion was defeated by a vote of “90 & od to 50 &
od.”227 The final ratification by Massachusetts recites that the
people of the United States had the opportunity to enter into “an
explicit & solemn Compact” “without fraud or surprise.”228
In addition to these formal defeats in the very states that had
relied on the restrictive language from Congress, an Anti-
Federalist critic penned an article in the New York Daily Ad-
vertiser that demonstrated that the general public in that city
rejected these claims. “Curtiopolis” claimed that the “Conven-
tion were delegated to amend our political Constitution, instead
of which they altered it.”229 He accused the delegates of “detest-
able hypocricy” and claimed that “their deeds were evil.”230 Fo-
cusing in on Alexander Hamilton, Curtiopolis urged the read-
ers “to take good notice of that vile conspirator, the author of
Publius: I think he might be impeached for high treason: he
continues to do infinite mischief among readers: this whole city,
except about forty [or] fifty of us, are all bewitched with him,
and he is a playing the very devil elsewhere.”231 This Anti-
Federalist writer openly admitted that only forty or fifty people
in New York City agreed with his strident position—the rest of
the population were “bewitched.”
224. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at 135,
135.
225. Id. at 138.
226. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
227. Id.
228. 16 DHRC, supra note 4, at 68.
229.
Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 20 DHRC,
supra note 4, at 625, 625.
230. Id. at 625–26.
231. Id. at 628.
No. 1]
Defying Conventional Wisdom 101
While it is clear that the allegation of ultra vires action was
widely asserted, this view was decisively rejected in the two
states that had the only plausible basis for raising the conten-
tion. It was a minority view, often accompanied by inflamma-
tory charges against the delegates to the Convention.
II. WAS THE CONSTITUTION PROPERLY RATIFIED?
The most common modern attack against the legitimacy of
the Constitution has been addressed—the delegates did not
exceed the authority granted to them by their states. Neither
Federalists nor Anti-Federalists contended that the calling
the Convention was premised on the language of Article XIII of
the Articles of Confederation. But, when critics of the Constitu-
tion’s adoption turn to the ratification process, they suddenly
shift gears. They claim the Constitution was not properly rati-
fied when it was adopted because the process found in Article
XIII was not followed. This Article specified that amendmen
had to be ratified by all thirteen states—rather than being ap-
proved by specially called conventions in just nine states.
Logically, if the Convention was not called under the authori
of the Articles to begin with, as most concede, it makes little sense
to argue that the Convention needed to follow the ratificatio
process contained therein. This confusion is understandable be-
cause, prior to the Convention, the clear expectation was that t
work product from Philadelphia would be first sent to Congr
and then would be adopted only when ratified by all thirteen le
islatures. But, as we see below, the source of this rule was not Ar-
ticle XIII, but the resolutions from the states, which had called the
Convention and given instructions to their delegates.
However, we will also discover that most critics have over-
looked two important steps taken in the process of adopting
the Constitution. The Convention enacted two form
measures. One was the Constitution itself. The second was a
formal proposal concerning a change in the ratification process.
Congress and all thirteen state legislatures approved this
change in process. The expected process was used to approve a
process designed to obtain the consent of the governed. This
two-stage endeavor was aimed to satisfy both the legal re-
quirements from the old system and the moral claim that the
Constitution should be approved by the people themselves.
105
100
Harvard Journal of Law & Public Policy
[Vol. 40
A similar debate arose in the Massachusetts legislature. Dr.
Kilham argued that the Convention had “assum[ed] powers not
delegated to them by their commission.”224 Immediately thereaf-
ter the Massachusetts House voted to call the ratification con-
vention by a vote of 129 to 32.225 A more specific resolution was
made in the Massachusetts ratification convention. “Mr. Bishop”
from Rehoboth, moved to “strike out all that related to the Con-
stitution” and to “insert a clause” in which “the General Con-
vention was charged with exceeding their powers & recom-
mending measures which might involve the Country in
blood.”226 The motion was defeated by a vote of “90 & od to 50 &
od.”227 The final ratification by Massachusetts recites that the
people of the United States had the opportunity to enter into “an
explicit & solemn Compact” “without fraud or surprise.”228
In addition to these formal defeats in the very states that had
relied on the restrictive language from Congress, an Anti-
Federalist critic penned an article in the New York Daily Ad-
vertiser that demonstrated that the general public in that city
rejected these claims. “Curtiopolis” claimed that the “Conven-
tion were delegated to amend our political Constitution, instead
of which they altered it.”229 He accused the delegates of “detest-
able hypocricy” and claimed that “their deeds were evil.”230 Fo-
cusing in on Alexander Hamilton, Curtiopolis urged the read-
ers “to take good notice of that vile conspirator, the author of
Publius: I think he might be impeached for high treason: he
continues to do infinite mischief among readers: this whole city,
except about forty [or] fifty of us, are all bewitched with him,
and he is a playing the very devil elsewhere.”231 This Anti-
Federalist writer openly admitted that only forty or fifty people
in New York City agreed with his strident position—the rest of
the population were “bewitched.”
224. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at 135,
135.
225. Id. at 138.
226. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
227. Id.
228. 16 DHRC, supra note 4, at 68.
229.
Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 20 DHRC,
supra note 4, at 625, 625.
230. Id. at 625–26.
231. Id. at 628.
No. 1]
Defying Conventional Wisdom 101
While it is clear that the allegation of ultra vires action was
widely asserted, this view was decisively rejected in the two
states that had the only plausible basis for raising the conten-
tion. It was a minority view, often accompanied by inflamma-
tory charges against the delegates to the Convention.
II. WAS THE CONSTITUTION PROPERLY RATIFIED?
The most common modern attack against the legitimacy of
the Constitution has been addressed—the delegates did not
exceed the authority granted to them by their states. Neither
Federalists nor Anti-Federalists contended that the calling of
the Convention was premised on the language of Article XIII of
the Articles of Confederation. But, when critics of the Constitu-
tion’s adoption turn to the ratification process, they suddenly
shift gears. They claim the Constitution was not properly rati-
fied when it was adopted because the process found in Article
XIII was not followed. This Article specified that amendments
had to be ratified by all thirteen states—rather than being ap-
proved by specially called conventions in just nine states.
Logically, if the Convention was not called under the authority
of the Articles to begin with, as most concede, it makes little sense
to argue that the Convention needed to follow the ratification
process contained therein. This confusion is understandable be-
cause, prior to the Convention, the clear expectation was that the
work product from Philadelphia would be first sent to Congress
and then would be adopted only when ratified by all thirteen leg-
islatures. But, as we see below, the source of this rule was not Ar-
ticle XIII, but the resolutions from the states, which had called the
Convention and given instructions to their delegates.
However, we will also discover that most critics have over-
looked two important steps taken in the process of adopting
the Constitution. The Convention enacted two formal
measures. One was the Constitution itself. The second was a
formal proposal concerning a change in the ratification process.
Congress and all thirteen state legislatures approved this
change in process. The expected process was used to approve a
process designed to obtain the consent of the governed. This
two-stage endeavor was aimed to satisfy both the legal re-
quirements from the old system and the moral claim that the
Constitution should be approved by the people themselves.
100
Harvard Journal of Law & Public Policy
[Vol. 40
A similar debate arose in the Massachusetts legislature. Dr.
Kilham argued that the Convention had “assum[ed] powers not
delegated to them by their commission.”224 Immediately thereaf-
ter the Massachusetts House voted to call the ratification con-
vention by a vote of 129 to 32.225 A more specific resolution was
made in the Massachusetts ratification convention. “Mr. Bishop”
from Rehoboth, moved to “strike out all that related to the Con-
stitution” and to “insert a clause” in which “the General Con-
vention was charged with exceeding their powers & recom-
mending measures which might involve the Country in
blood.”226 The motion was defeated by a vote of “90 & od to 50 &
od.”227 The final ratification by Massachusetts recites that the
people of the United States had the opportunity to enter into “an
explicit & solemn Compact” “without fraud or surprise.”228
In addition to these formal defeats in the very states that had
relied on the restrictive language from Congress, an Anti-
Federalist critic penned an article in the New York Daily Ad-
vertiser that demonstrated that the general public in that city
rejected these claims. “Curtiopolis” claimed that the “Conven-
tion were delegated to amend our political Constitution, instead
of which they altered it.”229 He accused the delegates of “detest-
able hypocricy” and claimed that “their deeds were evil.”230 Fo-
cusing in on Alexander Hamilton, Curtiopolis urged the read-
ers “to take good notice of that vile conspirator, the author of
Publius: I think he might be impeached for high treason: he
continues to do infinite mischief among readers: this whole city,
except about forty [or] fifty of us, are all bewitched with him,
and he is a playing the very devil elsewhere.”231 This Anti-
Federalist writer openly admitted that only forty or fifty people
in New York City agreed with his strident position—the rest of
the population were “bewitched.”
224. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at 135,
135.
225. Id. at 138.
226. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
227. Id.
228. 16 DHRC, supra note 4, at 68.
229.
Curtiopolis, N.Y. DAILY ADVERTISER, Jan. 18, 1788, reprinted in 20 DHRC,
supra note 4, at 625, 625.
230. Id. at 625–26.
231. Id. at 628.
No. 1]
Defying Conventional Wisdom 101
While it is clear that the allegation of ultra vires action was
widely asserted, this view was decisively rejected in the two
states that had the only plausible basis for raising the conten-
tion. It was a minority view, often accompanied by inflamma-
tory charges against the delegates to the Convention.
II. WAS THE CONSTITUTION PROPERLY RATIFIED?
The most common modern attack against the legitimacy of
the Constitution has been addressed—the delegates did not
exceed the authority granted to them by their states. Neither
Federalists nor Anti-Federalists contended that the calling
the Convention was premised on the language of Article XIII of
the Articles of Confederation. But, when critics of the Constitu-
tion’s adoption turn to the ratification process, they suddenly
shift gears. They claim the Constitution was not properly rati-
fied when it was adopted because the process found in Article
XIII was not followed. This Article specified that amendmen
had to be ratified by all thirteen states—rather than being ap-
proved by specially called conventions in just nine states.
Logically, if the Convention was not called under the authori
of the Articles to begin with, as most concede, it makes little sense
to argue that the Convention needed to follow the ratificatio
process contained therein. This confusion is understandable be-
cause, prior to the Convention, the clear expectation was that t
work product from Philadelphia would be first sent to Congr
and then would be adopted only when ratified by all thirteen le
islatures. But, as we see below, the source of this rule was not Ar-
ticle XIII, but the resolutions from the states, which had called the
Convention and given instructions to their delegates.
However, we will also discover that most critics have over-
looked two important steps taken in the process of adopting
the Constitution. The Convention enacted two form
measures. One was the Constitution itself. The second was a
formal proposal concerning a change in the ratification process.
Congress and all thirteen state legislatures approved this
change in process. The expected process was used to approve a
process designed to obtain the consent of the governed. This
two-stage endeavor was aimed to satisfy both the legal re-
quirements from the old system and the moral claim that the
Constitution should be approved by the people themselves.
106
102
Harvard Journal of Law & Public Policy
[Vol. 40
A. The Source of Law for Ratification Authority
Although not formally binding, both the Annapolis Convention
and the February 21st Congressional endorsement look to the
same method for ratification of the Constitutional Convention’s
work. The Annapolis report suggests that the Convention should
send its proposal “to the United States in Congress Assembled, as
when agreed to, by them, and afterwards confirmed by the Legis-
latures of every State, will effectually provide for the same.”232
The controlling documents—the delegates’ appointments by their
respective legislatures—were in general agreement as to the mode
of ratification. Virginia’s legislature specified the following: “re-
porting such an Act for that purpose, to the United States in Con-
gress, as, when agreed to by them, and duly confirmed by the
several States, will effectually provide for the same.”233 Georgia,234
South Carolina,235 Maryland,236 and New Hampshire237 employed
the exact same phrasing. Pennsylvania made only a minor change
allowing for the submission of “such act or acts.”238 This two-
word variance was repeated precisely by Delaware.239 Thus seven
states were in near unison on the point. New Jersey and North
Carolina were silent on the issue of the method of ratification.
Massachusetts quoted the ratification language of the February
21st endorsement by Congress.240 New York copied the Congres-
sional language precisely in the formal directives to their dele-
232. Proceedings and Report of the Commissioners at Annapolis, Maryland
(Sept. 11–14, 1786), reprinted in 1 DHRC, supra note 4, at 181, 184–185. The lan-
guage of the Congressional endorsement was nearly identical. See supra note 89
and accompanying text.
233. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in 1
DHRC, supra note 4, at 196, 197.
234. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1
DHRC, supra note 4, at 204, 204.
235. Act Authorizing the Election of Delegates, (Mar. 8, 1787), reprinted in 1
DHRC, supra note 4, at 213, 214.
236. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 223.
237. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
238. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199–200.
239. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
240. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted 1 in DHRC, supra note 4, at 207.
No. 1]
Defying Conventional Wisdom 103
gates.241 Connecticut used similar, but somewhat distinct lan-
guage: “[r]eport such Alterations and Provisions . . . to the Con-
gress of the United States, and to the General Assembly of this
State.”242 The variances are legally insignificant. Every state that
addressed the method of ratification contemplated that the Con-
vention would send its report first for approval by Congress and
then for final adoption by the legislatures of the several states.
B. The Constitutional Convention’s Development of the Plan for
Ratification
The very first mention of the plan for ratification was on May
29th in a speech by Edmund Randolph during the first substan-
tive discussion in the Convention. Randolph laid out a fifteen-
point outline that became known as the Virginia Plan.243 The
final item dealt with ratification:
15. Resd. that the amendments which shall be offered to the
Confederation, by the Convention ought at a proper time, or
times, after the approbation of Congress, to be submitted to
an assembly or assemblies of Representatives, recommended
by the several Legislatures to be expressly chosen by the
people, to consider & decide thereon.244
This obviously differed from the language of the delegates’ in-
structions. Randolph’s proposal, like the instructions from the
states, called for approval by Congress. But rather than ap-
proval by the legislatures themselves, Randolph called for rati-
fication conventions of specially elected delegates upon the
recommendation of each legislature.
What is clear, both from this language and from the ensuing
debates, is that there were two competing ideas concerning ratifi-
cation of the Constitution. The first theory, driven by traditional,
institutional, and legal concerns, was that Congress and all thir-
teen state legislatures should be the agencies that consent on be-
half of the people. Alternatively, others contended that the people
themselves should consent to the Constitution. Randolph’s ratifi-
cation method took elements of both. Congress—which had rep-
241. Assembly and Senate Elect Delegates (Mar. 6, 1787), reprinted in 1 DHRC,
supra note 4, at 211, 211.
242. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 216.
243. 1 FARRAND’S RECORDS, supra note 107, at 18–22.
244. Id. at 22.
102
Harvard Journal of Law & Public Policy
[Vol. 40
A. The Source of Law for Ratification Authority
Although not formally binding, both the Annapolis Convention
and the February 21st Congressional endorsement look to the
same method for ratification of the Constitutional Convention’s
work. The Annapolis report suggests that the Convention should
send its proposal “to the United States in Congress Assembled, as
when agreed to, by them, and afterwards confirmed by the Legis-
latures of every State, will effectually provide for the same.”232
The controlling documents—the delegates’ appointments by their
respective legislatures—were in general agreement as to the mode
of ratification. Virginia’s legislature specified the following: “re-
porting such an Act for that purpose, to the United States in Con-
gress, as, when agreed to by them, and duly confirmed by the
several States, will effectually provide for the same.”233 Georgia,234
South Carolina,235 Maryland,236 and New Hampshire237 employed
the exact same phrasing. Pennsylvania made only a minor change
allowing for the submission of “such act or acts.”238 This two-
word variance was repeated precisely by Delaware.239 Thus seven
states were in near unison on the point. New Jersey and North
Carolina were silent on the issue of the method of ratification.
Massachusetts quoted the ratification language of the February
21st endorsement by Congress.240 New York copied the Congres-
sional language precisely in the formal directives to their dele-
232. Proceedings and Report of the Commissioners at Annapolis, Maryland
(Sept. 11–14, 1786), reprinted in 1 DHRC, supra note 4, at 181, 184–185. The lan-
guage of the Congressional endorsement was nearly identical. See supra note 89
and accompanying text.
233. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in 1
DHRC, supra note 4, at 196, 197.
234. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1
DHRC, supra note 4, at 204, 204.
235. Act Authorizing the Election of Delegates, (Mar. 8, 1787), reprinted in 1
DHRC, supra note 4, at 213, 214.
236. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 223.
237. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
238. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199–200.
239. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
240. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted 1 in DHRC, supra note 4, at 207.
No. 1]
Defying Conventional Wisdom 103
gates.241 Connecticut used similar, but somewhat distinct lan-
guage: “[r]eport such Alterations and Provisions . . . to the Con
gress of the United States, and to the General Assembly of t
State.”242 The variances are legally insignificant. Every state th
addressed the method of ratification contemplated that the Con-
vention would send its report first for approval by Congress an
then for final adoption by the legislatures of the several states.
B. The Constitutional Convention’s Development of the Plan for
Ratification
The very first mention of the plan for ratification was on May
29th in a speech by Edmund Randolph during the first substan-
tive discussion in the Convention. Randolph laid out a fifteen-
point outline that became known as the Virginia Plan.243 The
final item dealt with ratification:
15. Resd. that the amendments which shall be offered to the
Confederation, by the Convention ought at a proper time, or
times, after the approbation of Congress, to be submitted to
an assembly or assemblies of Representatives, recommended
by the several Legislatures to be expressly chosen by the
people, to consider & decide thereon.244
This obviously differed from the language of the delegates’
structions. Randolph’s proposal, like the instructions from the
states, called for approval by Congress. But rather than ap-
proval by the legislatures themselves, Randolph called for ra
fication conventions of specially elected delegates upon t
recommendation of each legislature.
What is clear, both from this language and from the ensui
debates, is that there were two competing ideas concerning ratifi-
cation of the Constitution. The first theory, driven by traditional
institutional, and legal concerns, was that Congress and all thir-
teen state legislatures should be the agencies that consent on be-
half of the people. Alternatively, others contended that the peo
themselves should consent to the Constitution. Randolph’s ratifi-
cation method took elements of both. Congress—which had rep-
241. Assembly and Senate Elect Delegates (Mar. 6, 1787), reprinted in 1 DHR
supra note 4, at 211, 211.
242. Act Electing and Empowering Delegates (May 17, 1787), reprinted in
DHRC, supra note 4, at 215, 216.
243. 1 FARRAND’S RECORDS, supra note 107, at 18–22.
244. Id. at 22.
107
102
Harvard Journal of Law & Public Policy
[Vol. 40
A. The Source of Law for Ratification Authority
Although not formally binding, both the Annapolis Convention
and the February 21st Congressional endorsement look to the
same method for ratification of the Constitutional Convention’s
work. The Annapolis report suggests that the Convention should
send its proposal “to the United States in Congress Assembled, as
when agreed to, by them, and afterwards confirmed by the Legis-
latures of every State, will effectually provide for the same.”232
The controlling documents—the delegates’ appointments by their
respective legislatures—were in general agreement as to the mode
of ratification. Virginia’s legislature specified the following: “re-
porting such an Act for that purpose, to the United States in Con-
gress, as, when agreed to by them, and duly confirmed by the
several States, will effectually provide for the same.”233 Georgia,234
South Carolina,235 Maryland,236 and New Hampshire237 employed
the exact same phrasing. Pennsylvania made only a minor change
allowing for the submission of “such act or acts.”238 This two-
word variance was repeated precisely by Delaware.239 Thus seven
states were in near unison on the point. New Jersey and North
Carolina were silent on the issue of the method of ratification.
Massachusetts quoted the ratification language of the February
21st endorsement by Congress.240 New York copied the Congres-
sional language precisely in the formal directives to their dele-
232. Proceedings and Report of the Commissioners at Annapolis, Maryland
(Sept. 11–14, 1786), reprinted in 1 DHRC, supra note 4, at 181, 184–185. The lan-
guage of the Congressional endorsement was nearly identical. See supra note 89
and accompanying text.
233. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in 1
DHRC, supra note 4, at 196, 197.
234. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1
DHRC, supra note 4, at 204, 204.
235. Act Authorizing the Election of Delegates, (Mar. 8, 1787), reprinted in 1
DHRC, supra note 4, at 213, 214.
236. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 223.
237. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
238. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199–200.
239. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
240. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted 1 in DHRC, supra note 4, at 207.
No. 1]
Defying Conventional Wisdom 103
gates.241 Connecticut used similar, but somewhat distinct lan-
guage: “[r]eport such Alterations and Provisions . . . to the Con-
gress of the United States, and to the General Assembly of this
State.”242 The variances are legally insignificant. Every state that
addressed the method of ratification contemplated that the Con-
vention would send its report first for approval by Congress and
then for final adoption by the legislatures of the several states.
B. The Constitutional Convention’s Development of the Plan for
Ratification
The very first mention of the plan for ratification was on May
29th in a speech by Edmund Randolph during the first substan-
tive discussion in the Convention. Randolph laid out a fifteen-
point outline that became known as the Virginia Plan.243 The
final item dealt with ratification:
15. Resd. that the amendments which shall be offered to the
Confederation, by the Convention ought at a proper time, or
times, after the approbation of Congress, to be submitted to
an assembly or assemblies of Representatives, recommended
by the several Legislatures to be expressly chosen by the
people, to consider & decide thereon.244
This obviously differed from the language of the delegates’ in-
structions. Randolph’s proposal, like the instructions from the
states, called for approval by Congress. But rather than ap-
proval by the legislatures themselves, Randolph called for rati-
fication conventions of specially elected delegates upon the
recommendation of each legislature.
What is clear, both from this language and from the ensuing
debates, is that there were two competing ideas concerning ratifi-
cation of the Constitution. The first theory, driven by traditional,
institutional, and legal concerns, was that Congress and all thir-
teen state legislatures should be the agencies that consent on be-
half of the people. Alternatively, others contended that the people
themselves should consent to the Constitution. Randolph’s ratifi-
cation method took elements of both. Congress—which had rep-
241. Assembly and Senate Elect Delegates (Mar. 6, 1787), reprinted in 1 DHRC,
supra note 4, at 211, 211.
242. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 216.
243. 1 FARRAND’S RECORDS, supra note 107, at 18–22.
244. Id. at 22.
102
Harvard Journal of Law & Public Policy
[Vol. 40
A. The Source of Law for Ratification Authority
Although not formally binding, both the Annapolis Convention
and the February 21st Congressional endorsement look to the
same method for ratification of the Constitutional Convention’s
work. The Annapolis report suggests that the Convention should
send its proposal “to the United States in Congress Assembled, as
when agreed to, by them, and afterwards confirmed by the Legis-
latures of every State, will effectually provide for the same.”232
The controlling documents—the delegates’ appointments by their
respective legislatures—were in general agreement as to the mode
of ratification. Virginia’s legislature specified the following: “re-
porting such an Act for that purpose, to the United States in Con-
gress, as, when agreed to by them, and duly confirmed by the
several States, will effectually provide for the same.”233 Georgia,234
South Carolina,235 Maryland,236 and New Hampshire237 employed
the exact same phrasing. Pennsylvania made only a minor change
allowing for the submission of “such act or acts.”238 This two-
word variance was repeated precisely by Delaware.239 Thus seven
states were in near unison on the point. New Jersey and North
Carolina were silent on the issue of the method of ratification.
Massachusetts quoted the ratification language of the February
21st endorsement by Congress.240 New York copied the Congres-
sional language precisely in the formal directives to their dele-
232. Proceedings and Report of the Commissioners at Annapolis, Maryland
(Sept. 11–14, 1786), reprinted in 1 DHRC, supra note 4, at 181, 184–185. The lan-
guage of the Congressional endorsement was nearly identical. See supra note 89
and accompanying text.
233. Act Authorizing the Election of Delegates (Nov. 23, 1786), reprinted in 1
DHRC, supra note 4, at 196, 197.
234. Act Electing and Empowering Delegates (Feb. 10, 1787), reprinted in 1
DHRC, supra note 4, at 204, 204.
235. Act Authorizing the Election of Delegates, (Mar. 8, 1787), reprinted in 1
DHRC, supra note 4, at 213, 214.
236. Act Electing and Empowering Delegates (May 26, 1787), reprinted in 1
DHRC, supra note 4, at 222, 223.
237. Resolution Electing and Empowering Delegates (Jan. 17, 1787), reprinted in
1 DHRC, supra note 4, at 223, 223.
238. Act Electing and Empowering Delegates (Dec. 30, 1786), reprinted in 1
DHRC, supra note 4, at 199, 199–200.
239. Act Electing and Empowering Delegates (Feb. 3, 1787), reprinted in 1 DHRC,
supra note 4, at 203, 203.
240. House Substitute of 7 March for the Resolution of 22 February (Mar. 7,
1787), reprinted 1 in DHRC, supra note 4, at 207.
No. 1]
Defying Conventional Wisdom 103
gates.241 Connecticut used similar, but somewhat distinct lan-
guage: “[r]eport such Alterations and Provisions . . . to the Con
gress of the United States, and to the General Assembly of t
State.”242 The variances are legally insignificant. Every state th
addressed the method of ratification contemplated that the Con-
vention would send its report first for approval by Congress an
then for final adoption by the legislatures of the several states.
B. The Constitutional Convention’s Development of the Plan for
Ratification
The very first mention of the plan for ratification was on May
29th in a speech by Edmund Randolph during the first substan-
tive discussion in the Convention. Randolph laid out a fifteen-
point outline that became known as the Virginia Plan.243 The
final item dealt with ratification:
15. Resd. that the amendments which shall be offered to the
Confederation, by the Convention ought at a proper time, or
times, after the approbation of Congress, to be submitted to
an assembly or assemblies of Representatives, recommended
by the several Legislatures to be expressly chosen by the
people, to consider & decide thereon.244
This obviously differed from the language of the delegates’
structions. Randolph’s proposal, like the instructions from the
states, called for approval by Congress. But rather than ap-
proval by the legislatures themselves, Randolph called for ra
fication conventions of specially elected delegates upon t
recommendation of each legislature.
What is clear, both from this language and from the ensui
debates, is that there were two competing ideas concerning ratifi-
cation of the Constitution. The first theory, driven by traditional
institutional, and legal concerns, was that Congress and all thir-
teen state legislatures should be the agencies that consent on be-
half of the people. Alternatively, others contended that the peo
themselves should consent to the Constitution. Randolph’s ratifi-
cation method took elements of both. Congress—which had rep-
241. Assembly and Senate Elect Delegates (Mar. 6, 1787), reprinted in 1 DHR
supra note 4, at 211, 211.
242. Act Electing and Empowering Delegates (May 17, 1787), reprinted in
DHRC, supra note 4, at 215, 216.
243. 1 FARRAND’S RECORDS, supra note 107, at 18–22.
244. Id. at 22.
108
104
Harvard Journal of Law & Public Policy
[Vol. 40
resentatives from every state and which voted as states—would
approve first to satisfy the institutional and legal interest. The sec-
ond step of state ratification conventions was offered as the best
method to obtain the direct consent of the people. It was believed
that the consent of the governed was best obtained not by a vote
by state legislators, who were chosen for multiple purposes, but
by convention delegates elected solely for the purpose of ratifying
or rejecting the Constitution.
The first debate on Randolph’s fifteenth resolution was rec-
orded on June 5th. Madison’s notes list six delegates who
spoke to the issue—Sherman, Madison, Gerry, King, Wilson,
and Pinkney.245 Yates’ notes only mention comments by Madi-
son, King, and Wilson.246 Roger Sherman thought popular rati-
fication was unnecessary.247 He referred to the provision in the
Articles of Confederation for changes and alterations.248 It is not
clear from the context whether Sherman believed that such
measures were legally binding or merely provided an appro-
priate example that should be followed.249 Madison argued that
the new Constitution should be ratified in the “most unexcep-
tionable form, and by the supreme authority of the people
themselves.”250 He also suggested that the Confederation had
been defective in the method of ratification since it lacked any
direct approbation by the people.251 Elbridge Gerry contended
that the Articles had been sanctioned by the people in the east-
ern states.252 He also warned that the people of this quarter
were too wild to be trusted with a vote on the issue.253 His fears
undoubtedly arose from concerns about Shay’s Rebellion and
associated populist movements, particularly in Rhode Island.254
Rufus King argued that Article XIII legitimized the idea that
legislatures were competent to ratify constitutional changes
245. Id. at 122–123.
246. Id. at 126–27.
247. Id. at 122.
248. Id.
249. See id.
250. Id. at 123.
251. Id. at 122–23, 126–127.
252. Id. at 123.
253. Id.
254. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at xliii.
No. 1]
Defying Conventional Wisdom 105
and that the people had impliedly consented.255 But, he contin-
ued, it might make good policy sense to change the mode.256 In
the end, the people wouldn’t care which method of consent
was employed so long as the substantive document was ap-
propriate.257 In Madison’s notes, James Wilson of Pennsylvania
argued that whatever process was adopted, it should not end
with the result that a few inconsiderate or selfish states should
be able to prevent the others from “confederat[ing] anew on
better principles” while allowing the others to accede later.258
Yates’s notes focus on Wilson’s contention that “the people by
a convention are the only power that can ratify the proposed
system of the new government.”259 Charles Pinckney of South
Carolina agreed with the essence of Wilson’s first point arguing
that if nine states could agree on a new government, it should
suffice.260 After these speakers, it became obvious that more
work would be needed to reach consensus on the topic. And it
was quickly agreed that the issue should be postponed.261
The fifteenth resolution regarding the ratification process
was raised for a vote in the Committee of the Whole on June
12th. Yates records that no debate arose and that it passed five
in favor, three opposed, and two states divided.262 Madison
records the vote as six in favor, New York, New Jersey, and
Connecticut opposed, while Delaware and New Jersey were
divided.263 On July 23rd, the issue was again addressed. The
provision was now numbered as the nineteenth resolution of
the amended Virginia Plan. Ellsworth moved to refer the Con-
stitution to the legislatures of the States for ratification.264 Alt-
hough New Jersey temporarily lacked a quorum for voting
purposes, Paterson seconded the motion.265
255. 1 FARRAND’S RECORDS, supra note 107, at 123.
256. Id.
257. Id. at 123, 127.
258. Id. at 123.
259. Id. at 127.
260. Id. at 123.
261. Id. at 123, 127.
262. Id. at 220.
263. Id. at 214.
264. 2 FARRAND’S RECORDS, supra note 107, at 88.
265. Id.
104
Harvard Journal of Law & Public Policy
[Vol. 40
resentatives from every state and which voted as states—would
approve first to satisfy the institutional and legal interest. The sec-
ond step of state ratification conventions was offered as the best
method to obtain the direct consent of the people. It was believed
that the consent of the governed was best obtained not by a vote
by state legislators, who were chosen for multiple purposes, but
by convention delegates elected solely for the purpose of ratifying
or rejecting the Constitution.
The first debate on Randolph’s fifteenth resolution was rec-
orded on June 5th. Madison’s notes list six delegates who
spoke to the issue—Sherman, Madison, Gerry, King, Wilson,
and Pinkney.245 Yates’ notes only mention comments by Madi-
son, King, and Wilson.246 Roger Sherman thought popular rati-
fication was unnecessary.247 He referred to the provision in the
Articles of Confederation for changes and alterations.248 It is not
clear from the context whether Sherman believed that such
measures were legally binding or merely provided an appro-
priate example that should be followed.249 Madison argued that
the new Constitution should be ratified in the “most unexcep-
tionable form, and by the supreme authority of the people
themselves.”250 He also suggested that the Confederation had
been defective in the method of ratification since it lacked any
direct approbation by the people.251 Elbridge Gerry contended
that the Articles had been sanctioned by the people in the east-
ern states.252 He also warned that the people of this quarter
were too wild to be trusted with a vote on the issue.253 His fears
undoubtedly arose from concerns about Shay’s Rebellion and
associated populist movements, particularly in Rhode Island.254
Rufus King argued that Article XIII legitimized the idea that
legislatures were competent to ratify constitutional changes
245. Id. at 122–123.
246. Id. at 126–27.
247. Id. at 122.
248. Id.
249. See id.
250. Id. at 123.
251. Id. at 122–23, 126–127.
252. Id. at 123.
253. Id.
254. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at xliii.
No. 1]
Defying Conventional Wisdom 105
and that the people had impliedly consented.255 But, he conti
ued, it might make good policy sense to change the mode.256
the end, the people wouldn’t care which method of consent
was employed so long as the substantive document was a
propriate.257 In Madison’s notes, James Wilson of Pennsylvani
argued that whatever process was adopted, it should not end
with the result that a few inconsiderate or selfish states shou
be able to prevent the others from “confederat[ing] anew on
better principles” while allowing the others to accede later.258
Yates’s notes focus on Wilson’s contention that “the people b
a convention are the only power that can ratify the proposed
system of the new government.”259 Charles Pinckney of South
Carolina agreed with the essence of Wilson’s first point argui
that if nine states could agree on a new government, it should
suffice.260 After these speakers, it became obvious that mor
work would be needed to reach consensus on the topic. And
was quickly agreed that the issue should be postponed.261
The fifteenth resolution regarding the ratification proce
was raised for a vote in the Committee of the Whole on June
12th. Yates records that no debate arose and that it passed fi
in favor, three opposed, and two states divided.262 Madison
records the vote as six in favor, New York, New Jersey, and
Connecticut opposed, while Delaware and New Jersey were
divided.263 On July 23rd, the issue was again addressed. The
provision was now numbered as the nineteenth resolution of
the amended Virginia Plan. Ellsworth moved to refer the Con-
stitution to the legislatures of the States for ratification.264 Alt-
hough New Jersey temporarily lacked a quorum for voting
purposes, Paterson seconded the motion.265
255. 1 FARRAND’S RECORDS, supra note 107, at 123.
256. Id.
257. Id. at 123, 127.
258. Id. at 123.
259. Id. at 127.
260. Id. at 123.
261. Id. at 123, 127.
262. Id. at 220.
263. Id. at 214.
264. 2 FARRAND’S RECORDS, supra note 107, at 88.
265. Id.
109
104
Harvard Journal of Law & Public Policy
[Vol. 40
resentatives from every state and which voted as states—would
approve first to satisfy the institutional and legal interest. The sec-
ond step of state ratification conventions was offered as the best
method to obtain the direct consent of the people. It was believed
that the consent of the governed was best obtained not by a vote
by state legislators, who were chosen for multiple purposes, but
by convention delegates elected solely for the purpose of ratifying
or rejecting the Constitution.
The first debate on Randolph’s fifteenth resolution was rec-
orded on June 5th. Madison’s notes list six delegates who
spoke to the issue—Sherman, Madison, Gerry, King, Wilson,
and Pinkney.245 Yates’ notes only mention comments by Madi-
son, King, and Wilson.246 Roger Sherman thought popular rati-
fication was unnecessary.247 He referred to the provision in the
Articles of Confederation for changes and alterations.248 It is not
clear from the context whether Sherman believed that such
measures were legally binding or merely provided an appro-
priate example that should be followed.249 Madison argued that
the new Constitution should be ratified in the “most unexcep-
tionable form, and by the supreme authority of the people
themselves.”250 He also suggested that the Confederation had
been defective in the method of ratification since it lacked any
direct approbation by the people.251 Elbridge Gerry contended
that the Articles had been sanctioned by the people in the east-
ern states.252 He also warned that the people of this quarter
were too wild to be trusted with a vote on the issue.253 His fears
undoubtedly arose from concerns about Shay’s Rebellion and
associated populist movements, particularly in Rhode Island.254
Rufus King argued that Article XIII legitimized the idea that
legislatures were competent to ratify constitutional changes
245. Id. at 122–123.
246. Id. at 126–27.
247. Id. at 122.
248. Id.
249. See id.
250. Id. at 123.
251. Id. at 122–23, 126–127.
252. Id. at 123.
253. Id.
254. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at xliii.
No. 1]
Defying Conventional Wisdom 105
and that the people had impliedly consented.255 But, he contin-
ued, it might make good policy sense to change the mode.256 In
the end, the people wouldn’t care which method of consent
was employed so long as the substantive document was ap-
propriate.257 In Madison’s notes, James Wilson of Pennsylvania
argued that whatever process was adopted, it should not end
with the result that a few inconsiderate or selfish states should
be able to prevent the others from “confederat[ing] anew on
better principles” while allowing the others to accede later.258
Yates’s notes focus on Wilson’s contention that “the people by
a convention are the only power that can ratify the proposed
system of the new government.”259 Charles Pinckney of South
Carolina agreed with the essence of Wilson’s first point arguing
that if nine states could agree on a new government, it should
suffice.260 After these speakers, it became obvious that more
work would be needed to reach consensus on the topic. And it
was quickly agreed that the issue should be postponed.261
The fifteenth resolution regarding the ratification process
was raised for a vote in the Committee of the Whole on June
12th. Yates records that no debate arose and that it passed five
in favor, three opposed, and two states divided.262 Madison
records the vote as six in favor, New York, New Jersey, and
Connecticut opposed, while Delaware and New Jersey were
divided.263 On July 23rd, the issue was again addressed. The
provision was now numbered as the nineteenth resolution of
the amended Virginia Plan. Ellsworth moved to refer the Con-
stitution to the legislatures of the States for ratification.264 Alt-
hough New Jersey temporarily lacked a quorum for voting
purposes, Paterson seconded the motion.265
255. 1 FARRAND’S RECORDS, supra note 107, at 123.
256. Id.
257. Id. at 123, 127.
258. Id. at 123.
259. Id. at 127.
260. Id. at 123.
261. Id. at 123, 127.
262. Id. at 220.
263. Id. at 214.
264. 2 FARRAND’S RECORDS, supra note 107, at 88.
265. Id.
104
Harvard Journal of Law & Public Policy
[Vol. 40
resentatives from every state and which voted as states—would
approve first to satisfy the institutional and legal interest. The sec-
ond step of state ratification conventions was offered as the best
method to obtain the direct consent of the people. It was believed
that the consent of the governed was best obtained not by a vote
by state legislators, who were chosen for multiple purposes, but
by convention delegates elected solely for the purpose of ratifying
or rejecting the Constitution.
The first debate on Randolph’s fifteenth resolution was rec-
orded on June 5th. Madison’s notes list six delegates who
spoke to the issue—Sherman, Madison, Gerry, King, Wilson,
and Pinkney.245 Yates’ notes only mention comments by Madi-
son, King, and Wilson.246 Roger Sherman thought popular rati-
fication was unnecessary.247 He referred to the provision in the
Articles of Confederation for changes and alterations.248 It is not
clear from the context whether Sherman believed that such
measures were legally binding or merely provided an appro-
priate example that should be followed.249 Madison argued that
the new Constitution should be ratified in the “most unexcep-
tionable form, and by the supreme authority of the people
themselves.”250 He also suggested that the Confederation had
been defective in the method of ratification since it lacked any
direct approbation by the people.251 Elbridge Gerry contended
that the Articles had been sanctioned by the people in the east-
ern states.252 He also warned that the people of this quarter
were too wild to be trusted with a vote on the issue.253 His fears
undoubtedly arose from concerns about Shay’s Rebellion and
associated populist movements, particularly in Rhode Island.254
Rufus King argued that Article XIII legitimized the idea that
legislatures were competent to ratify constitutional changes
245. Id. at 122–123.
246. Id. at 126–27.
247. Id. at 122.
248. Id.
249. See id.
250. Id. at 123.
251. Id. at 122–23, 126–127.
252. Id. at 123.
253. Id.
254. MASS. CENTINEL, Oct. 27, 1787, reprinted in 4 DHRC, supra note 4, at xliii.
No. 1]
Defying Conventional Wisdom 105
and that the people had impliedly consented.255 But, he conti
ued, it might make good policy sense to change the mode.256
the end, the people wouldn’t care which method of consent
was employed so long as the substantive document was a
propriate.257 In Madison’s notes, James Wilson of Pennsylvani
argued that whatever process was adopted, it should not end
with the result that a few inconsiderate or selfish states shou
be able to prevent the others from “confederat[ing] anew on
better principles” while allowing the others to accede later.258
Yates’s notes focus on Wilson’s contention that “the people b
a convention are the only power that can ratify the proposed
system of the new government.”259 Charles Pinckney of South
Carolina agreed with the essence of Wilson’s first point argui
that if nine states could agree on a new government, it should
suffice.260 After these speakers, it became obvious that mor
work would be needed to reach consensus on the topic. And
was quickly agreed that the issue should be postponed.261
The fifteenth resolution regarding the ratification proce
was raised for a vote in the Committee of the Whole on June
12th. Yates records that no debate arose and that it passed fi
in favor, three opposed, and two states divided.262 Madison
records the vote as six in favor, New York, New Jersey, and
Connecticut opposed, while Delaware and New Jersey were
divided.263 On July 23rd, the issue was again addressed. The
provision was now numbered as the nineteenth resolution of
the amended Virginia Plan. Ellsworth moved to refer the Con-
stitution to the legislatures of the States for ratification.264 Alt-
hough New Jersey temporarily lacked a quorum for voting
purposes, Paterson seconded the motion.265
255. 1 FARRAND’S RECORDS, supra note 107, at 123.
256. Id.
257. Id. at 123, 127.
258. Id. at 123.
259. Id. at 127.
260. Id. at 123.
261. Id. at 123, 127.
262. Id. at 220.
263. Id. at 214.
264. 2 FARRAND’S RECORDS, supra note 107, at 88.
265. Id.
110
106
Harvard Journal of Law & Public Policy
[Vol. 40
Mason, Randolph, Nathaniel Gorham of Massachusetts, Hugh
Williamson of North Carolina, Morris, King, and Madison spoke
against the motion. It was supported only by Ellsworth and Ger-
ry.266 The vast majority of the debate was centered on the conten-
tion that the Constitution would be placed on the best footing if
arising from the direct approval by the people. Though no one
disputed this moral proposition, Gerry contended that the people
had acquiesced in the ratification of the Articles of Confederation
which was a sufficient expression of the consent of the gov-
erned.267 Moreover, he argued, the contention that the direct con-
sent of the governed was necessary proved too much since the
argument would delegitimize the Articles of Confederation and
many state constitutions.268 Neither Gerry nor Ellsworth expressly
argued that the text of Article XIII was legally controlling. But,
Ellsworth came close to implying this idea. This prompted the
following response from Morris:
The amendmt. moved by Mr. Elseworth [sic] erroneously sup-
poses that we are proceeding on the basis of the Confederation.
This Convention is unknown to the Confederation.269
No refutation of Morris was forthcoming from any of the pro-
ponents of legislative ratification.
Ellsworth’s motion was defeated 7 to 3, with Connecticut,
Delaware, and Maryland supporting the motion.270 Morris
then moved for a new national ratification convention cho-
sen and authorized by the people.271 This idea was truly un-
popular and died for the lack of a second.272 Thus, as of July
23rd, the plan was to submit the new Constitution to Con-
gress and then on to state ratification conventions.273 But, this
was not the end of the matter.
The Convention adjourned on July 26th until August 6th to
allow a Committee of Detail to transform all of the resolutions
into a single working draft.274 On the 6th, the Convention re-
266. Id. at 88–94.
267. Id. at 89–90.
268. Id.
269. Id. at 92.
270. Id. at 93.
271.
Id.
272. Id.
273. Id. at 93–94.
274. Id. at 128.
No. 1]
Defying Conventional Wisdom 107
convened, distributed the draft document and adjourned until
the next day to allow the delegates a chance to read the whole
document.275 There were now three provisions concerning rati-
fication and transition to the new government, Articles XXI,
XXII and XXIII:
ARTICLE XXI.
The ratification of the conventions of __ States shall be suffi-
cient for organizing this Constitution.
ARTICLE XXII.
This Constitution shall be laid before the United States in
Congress assembled, for their approbation; and it is the
opinion of this Convention, that it should be afterwards
submitted to a Convention chosen [in each State], under the
recommendation of its legislature, in order to receive the rat-
ification of such Convention.
ARTICLE XXIII.
To introduce this government, it is the opinion of this Con-
vention, that each assenting convention should notify its as-
sent and ratification to the United States in Congress assem-
bled; that Congress, after receiving the assent and
ratification of the Conventions of __ States, should appoint
and publish a day, as early as may be, and appoint a place,
for commencing proceedings under this Constitution; that
after such publication, the Legislatures of the several States
should elect members of the Senate, and direct the election
of members of the House of Representatives; and that the
members of the Legislature should meet at the time and
place assigned by Congress, and should, as soon as may be,
after their meeting, choose the President of the United
States, and proceed to execute this Constitution.276
Debate on these three articles began on August 30th.277 The
initial focus was the matter of filling in the blank left in the
draft—how many states would be required to ratify. Wilson
proposed seven—a majority.278 Morris argued for two different
numbers, a lower number if the ratifying states were contigu-
275. Id. at 176.
276. Id. at 189.
277. Id. at 468.
278. Id.
106
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[Vol. 40
Mason, Randolph, Nathaniel Gorham of Massachusetts, Hugh
Williamson of North Carolina, Morris, King, and Madison spoke
against the motion. It was supported only by Ellsworth and Ger-
ry.266 The vast majority of the debate was centered on the conten-
tion that the Constitution would be placed on the best footing if
arising from the direct approval by the people. Though no one
disputed this moral proposition, Gerry contended that the people
had acquiesced in the ratification of the Articles of Confederation
which was a sufficient expression of the consent of the gov-
erned.267 Moreover, he argued, the contention that the direct con-
sent of the governed was necessary proved too much since the
argument would delegitimize the Articles of Confederation and
many state constitutions.268 Neither Gerry nor Ellsworth expressly
argued that the text of Article XIII was legally controlling. But,
Ellsworth came close to implying this idea. This prompted the
following response from Morris:
The amendmt. moved by Mr. Elseworth [sic] erroneously sup-
poses that we are proceeding on the basis of the Confederation.
This Convention is unknown to the Confederation.269
No refutation of Morris was forthcoming from any of the pro-
ponents of legislative ratification.
Ellsworth’s motion was defeated 7 to 3, with Connecticut,
Delaware, and Maryland supporting the motion.270 Morris
then moved for a new national ratification convention cho-
sen and authorized by the people.271 This idea was truly un-
popular and died for the lack of a second.272 Thus, as of July
23rd, the plan was to submit the new Constitution to Con-
gress and then on to state ratification conventions.273 But, this
was not the end of the matter.
The Convention adjourned on July 26th until August 6th to
allow a Committee of Detail to transform all of the resolutions
into a single working draft.274 On the 6th, the Convention re-
266. Id. at 88–94.
267. Id. at 89–90.
268. Id.
269. Id. at 92.
270. Id. at 93.
271.
Id.
272. Id.
273. Id. at 93–94.
274. Id. at 128.
No. 1]
Defying Conventional Wisdom 107
convened, distributed the draft document and adjourned un
the next day to allow the delegates a chance to read the whole
document.275 There were now three provisions concerning rati-
fication and transition to the new government, Articles XXI,
XXII and XXIII:
ARTICLE XXI.
The ratification of the conventions of __ States shall be suffi-
cient for organizing this Constitution.
ARTICLE XXII.
This Constitution shall be laid before the United States in
Congress assembled, for their approbation; and it is the
opinion of this Convention, that it should be afterwards
submitted to a Convention chosen [in each State], under the
recommendation of its legislature, in order to receive the rat-
ification of such Convention.
ARTICLE XXIII.
To introduce this government, it is the opinion of this Con-
vention, that each assenting convention should notify its as-
sent and ratification to the United States in Congress assem-
bled; that Congress, after receiving the assent and
ratification of the Conventions of __ States, should appoint
and publish a day, as early as may be, and appoint a place,
for commencing proceedings under this Constitution; that
after such publication, the Legislatures of the several States
should elect members of the Senate, and direct the election
of members of the House of Representatives; and that the
members of the Legislature should meet at the time and
place assigned by Congress, and should, as soon as may be,
after their meeting, choose the President of the United
States, and proceed to execute this Constitution.276
Debate on these three articles began on August 30th.277 The
initial focus was the matter of filling in the blank left in the
draft—how many states would be required to ratify. Wilson
proposed seven—a majority.278 Morris argued for two different
numbers, a lower number if the ratifying states were contigu-
275. Id. at 176.
276. Id. at 189.
277. Id. at 468.
278. Id.
111
106
Harvard Journal of Law & Public Policy
[Vol. 40
Mason, Randolph, Nathaniel Gorham of Massachusetts, Hugh
Williamson of North Carolina, Morris, King, and Madison spoke
against the motion. It was supported only by Ellsworth and Ger-
ry.266 The vast majority of the debate was centered on the conten-
tion that the Constitution would be placed on the best footing if
arising from the direct approval by the people. Though no one
disputed this moral proposition, Gerry contended that the people
had acquiesced in the ratification of the Articles of Confederation
which was a sufficient expression of the consent of the gov-
erned.267 Moreover, he argued, the contention that the direct con-
sent of the governed was necessary proved too much since the
argument would delegitimize the Articles of Confederation and
many state constitutions.268 Neither Gerry nor Ellsworth expressly
argued that the text of Article XIII was legally controlling. But,
Ellsworth came close to implying this idea. This prompted the
following response from Morris:
The amendmt. moved by Mr. Elseworth [sic] erroneously sup-
poses that we are proceeding on the basis of the Confederation.
This Convention is unknown to the Confederation.269
No refutation of Morris was forthcoming from any of the pro-
ponents of legislative ratification.
Ellsworth’s motion was defeated 7 to 3, with Connecticut,
Delaware, and Maryland supporting the motion.270 Morris
then moved for a new national ratification convention cho-
sen and authorized by the people.271 This idea was truly un-
popular and died for the lack of a second.272 Thus, as of July
23rd, the plan was to submit the new Constitution to Con-
gress and then on to state ratification conventions.273 But, this
was not the end of the matter.
The Convention adjourned on July 26th until August 6th to
allow a Committee of Detail to transform all of the resolutions
into a single working draft.274 On the 6th, the Convention re-
266. Id. at 88–94.
267. Id. at 89–90.
268. Id.
269. Id. at 92.
270. Id. at 93.
271.
Id.
272. Id.
273. Id. at 93–94.
274. Id. at 128.
No. 1]
Defying Conventional Wisdom 107
convened, distributed the draft document and adjourned until
the next day to allow the delegates a chance to read the whole
document.275 There were now three provisions concerning rati-
fication and transition to the new government, Articles XXI,
XXII and XXIII:
ARTICLE XXI.
The ratification of the conventions of __ States shall be suffi-
cient for organizing this Constitution.
ARTICLE XXII.
This Constitution shall be laid before the United States in
Congress assembled, for their approbation; and it is the
opinion of this Convention, that it should be afterwards
submitted to a Convention chosen [in each State], under the
recommendation of its legislature, in order to receive the rat-
ification of such Convention.
ARTICLE XXIII.
To introduce this government, it is the opinion of this Con-
vention, that each assenting convention should notify its as-
sent and ratification to the United States in Congress assem-
bled; that Congress, after receiving the assent and
ratification of the Conventions of __ States, should appoint
and publish a day, as early as may be, and appoint a place,
for commencing proceedings under this Constitution; that
after such publication, the Legislatures of the several States
should elect members of the Senate, and direct the election
of members of the House of Representatives; and that the
members of the Legislature should meet at the time and
place assigned by Congress, and should, as soon as may be,
after their meeting, choose the President of the United
States, and proceed to execute this Constitution.276
Debate on these three articles began on August 30th.277 The
initial focus was the matter of filling in the blank left in the
draft—how many states would be required to ratify. Wilson
proposed seven—a majority.278 Morris argued for two different
numbers, a lower number if the ratifying states were contigu-
275. Id. at 176.
276. Id. at 189.
277. Id. at 468.
278. Id.
106
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[Vol. 40
Mason, Randolph, Nathaniel Gorham of Massachusetts, Hugh
Williamson of North Carolina, Morris, King, and Madison spoke
against the motion. It was supported only by Ellsworth and Ger-
ry.266 The vast majority of the debate was centered on the conten-
tion that the Constitution would be placed on the best footing if
arising from the direct approval by the people. Though no one
disputed this moral proposition, Gerry contended that the people
had acquiesced in the ratification of the Articles of Confederation
which was a sufficient expression of the consent of the gov-
erned.267 Moreover, he argued, the contention that the direct con-
sent of the governed was necessary proved too much since the
argument would delegitimize the Articles of Confederation and
many state constitutions.268 Neither Gerry nor Ellsworth expressly
argued that the text of Article XIII was legally controlling. But,
Ellsworth came close to implying this idea. This prompted the
following response from Morris:
The amendmt. moved by Mr. Elseworth [sic] erroneously sup-
poses that we are proceeding on the basis of the Confederation.
This Convention is unknown to the Confederation.269
No refutation of Morris was forthcoming from any of the pro-
ponents of legislative ratification.
Ellsworth’s motion was defeated 7 to 3, with Connecticut,
Delaware, and Maryland supporting the motion.270 Morris
then moved for a new national ratification convention cho-
sen and authorized by the people.271 This idea was truly un-
popular and died for the lack of a second.272 Thus, as of July
23rd, the plan was to submit the new Constitution to Con-
gress and then on to state ratification conventions.273 But, this
was not the end of the matter.
The Convention adjourned on July 26th until August 6th to
allow a Committee of Detail to transform all of the resolutions
into a single working draft.274 On the 6th, the Convention re-
266. Id. at 88–94.
267. Id. at 89–90.
268. Id.
269. Id. at 92.
270. Id. at 93.
271.
Id.
272. Id.
273. Id. at 93–94.
274. Id. at 128.
No. 1]
Defying Conventional Wisdom 107
convened, distributed the draft document and adjourned un
the next day to allow the delegates a chance to read the whole
document.275 There were now three provisions concerning rati-
fication and transition to the new government, Articles XXI,
XXII and XXIII:
ARTICLE XXI.
The ratification of the conventions of __ States shall be suffi-
cient for organizing this Constitution.
ARTICLE XXII.
This Constitution shall be laid before the United States in
Congress assembled, for their approbation; and it is the
opinion of this Convention, that it should be afterwards
submitted to a Convention chosen [in each State], under the
recommendation of its legislature, in order to receive the rat-
ification of such Convention.
ARTICLE XXIII.
To introduce this government, it is the opinion of this Con-
vention, that each assenting convention should notify its as-
sent and ratification to the United States in Congress assem-
bled; that Congress, after receiving the assent and
ratification of the Conventions of __ States, should appoint
and publish a day, as early as may be, and appoint a place,
for commencing proceedings under this Constitution; that
after such publication, the Legislatures of the several States
should elect members of the Senate, and direct the election
of members of the House of Representatives; and that the
members of the Legislature should meet at the time and
place assigned by Congress, and should, as soon as may be,
after their meeting, choose the President of the United
States, and proceed to execute this Constitution.276
Debate on these three articles began on August 30th.277 The
initial focus was the matter of filling in the blank left in the
draft—how many states would be required to ratify. Wilson
proposed seven—a majority.278 Morris argued for two different
numbers, a lower number if the ratifying states were contigu-
275. Id. at 176.
276. Id. at 189.
277. Id. at 468.
278. Id.
112
108
Harvard Journal of Law & Public Policy
[Vol. 40
ous, and a higher number if not.279 Sherman argued that since
the present system required unanimous approval, ten seemed
like the right number.280 Randolph argued for nine because it
was a “respectable majority of the whole” and was a familiar
number under the Articles.281 Wilson suggested eight.282 Carroll
argued that the number should be thirteen since unanimity
should be required to dissolve the existing confederation.283
Madison, Wilson, and King debated the issue of whether
non-consenting states could be bound by the action of a majori-
ty or super-majority.284 The whole debate spilled over to the
next day.285 King immediately moved to add the words “be-
tween the said States” to “confine the operation of the Govt. to
the States ratifying it.”286 Nine states voted favorably.287 Mary-
land was the lone dissent.288 Delaware was temporarily without
a quorum. The moral principle of treaty law prevailed—no
state could be bound by a treaty without its consent.
During the debates, various formulas were proposed and re-
jected. Madison offered seven states.289 Morris moved to allow
each state to choose its own method for ratification.290 Sherman,
who argued for ten states on the prior day, now argued that all
thirteen should be required.291 A motion to fill in the blank with 10
states was rejected 7 to 4.292 Nine states (which was apparently
moved by Mason) was approved by a vote of 8 to 3.293 Virginia
279. Id.
280. Id. at 468–69.
281. Id. at 469. Nine states could declare war and take other military actions, for
example. See ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 6.
282. 2 FARRAND’S RECORDS, supra note 107, at 469.
283. Id.
284. Id.
285. Id.
286. Id. at 475.
287. Id.
288. Id.
289. Id.
290. Id.
291. Id.
292. Id. at 477.
293. Id.
No. 1]
Defying Conventional Wisdom 109
and both Carolinas voted no.294 Then final passage of the Article
as amended was approved by all states save for Maryland.295
The debate then turned to Article XXII which required the ap-
probation of Congress and then submission to the ratification
conventions, with the state legislatures being responsible for the
calling and associated rules.296 Morris moved to strike the phrase
requiring the “approbation” of Congress.297 His motion passed
eight states to three—with Massachusetts, Maryland, and Georgia
voting no.298 Other skirmishes ensued, the most important of
which was the suggestion of Randolph to allow the state ratifica-
tion conventions to be at liberty to propose amendments which
would then be submitted to a second general convention.299 He
generated no support for his idea.300 Final passage on Article XXII
as drafted was 10 to 1, with Maryland again being the lone dis-
sent.301 Article XXIII, which provided a transition plan for moving
from the Articles to the Constitution, was then approved with a
minor amendment without dissent.302
On September 5th, Gerry gave notice that he intended to
move for reconsideration of Articles XIX, XX, XXI, and XXII.303
His motions regarding Articles XXI and XXII were heard on
September 10th.304 Gerry argued that failing to require the ap-
probation of Congress would give umbrage to that body.305
Hamilton spoke strongly in support of Gerry’s motion:
Mr. Hamilton concurred with Mr. Gerry as to the indeco-
rum of not requiring the approbation of Congress. He con-
sidered this as a necessary ingredient in the transaction. He
thought it wrong also to allow nine States as provided by
art. XXI. to institute a new Government on the ruins of the
existing one. He [would] propose as a better modification
of the two articles (XXI & XXII) that the plan should be sent
294. Id.
295. Id.
296. Id. at 478.
297. Id.
298. Id.
299. Id. at 479.
300. Id.
301. Id.
302. Id. at 479–80.
303. Id. at 511.
304. Id. at 559.
305. Id. at 559–60.
108
Harvard Journal of Law & Public Policy
[Vol. 40
ous, and a higher number if not.279 Sherman argued that since
the present system required unanimous approval, ten seemed
like the right number.280 Randolph argued for nine because it
was a “respectable majority of the whole” and was a familiar
number under the Articles.281 Wilson suggested eight.282 Carroll
argued that the number should be thirteen since unanimity
should be required to dissolve the existing confederation.283
Madison, Wilson, and King debated the issue of whether
non-consenting states could be bound by the action of a majori-
ty or super-majority.284 The whole debate spilled over to the
next day.285 King immediately moved to add the words “be-
tween the said States” to “confine the operation of the Govt. to
the States ratifying it.”286 Nine states voted favorably.287 Mary-
land was the lone dissent.288 Delaware was temporarily without
a quorum. The moral principle of treaty law prevailed—no
state could be bound by a treaty without its consent.
During the debates, various formulas were proposed and re-
jected. Madison offered seven states.289 Morris moved to allow
each state to choose its own method for ratification.290 Sherman,
who argued for ten states on the prior day, now argued that all
thirteen should be required.291 A motion to fill in the blank with 10
states was rejected 7 to 4.292 Nine states (which was apparently
moved by Mason) was approved by a vote of 8 to 3.293 Virginia
279. Id.
280. Id. at 468–69.
281. Id. at 469. Nine states could declare war and take other military actions, for
example. See ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 6.
282. 2 FARRAND’S RECORDS, supra note 107, at 469.
283. Id.
284. Id.
285. Id.
286. Id. at 475.
287. Id.
288. Id.
289. Id.
290. Id.
291. Id.
292. Id. at 477.
293. Id.
No. 1]
Defying Conventional Wisdom 109
and both Carolinas voted no.294 Then final passage of the Arti
as amended was approved by all states save for Maryland.295
The debate then turned to Article XXII which required the ap
probation of Congress and then submission to the ratificatio
conventions, with the state legislatures being responsible for
calling and associated rules.296 Morris moved to strike the phra
requiring the “approbation” of Congress.297 His motion pass
eight states to three—with Massachusetts, Maryland, and Geor
voting no.298 Other skirmishes ensued, the most important of
which was the suggestion of Randolph to allow the state ratifica
tion conventions to be at liberty to propose amendments which
would then be submitted to a second general convention.299 He
generated no support for his idea.300 Final passage on Article X
as drafted was 10 to 1, with Maryland again being the lone dis-
sent.301 Article XXIII, which provided a transition plan for moving
from the Articles to the Constitution, was then approved with
minor amendment without dissent.302
On September 5th, Gerry gave notice that he intended t
move for reconsideration of Articles XIX, XX, XXI, and XXII.303
His motions regarding Articles XXI and XXII were heard on
September 10th.304 Gerry argued that failing to require the ap-
probation of Congress would give umbrage to that body 305
Hamilton spoke strongly in support of Gerry’s motion:
Mr. Hamilton concurred with Mr. Gerry as to the indeco-
rum of not requiring the approbation of Congress. He con-
sidered this as a necessary ingredient in the transaction. He
thought it wrong also to allow nine States as provided by
art. XXI. to institute a new Government on the ruins of the
existing one. He [would] propose as a better modification
of the two articles (XXI & XXII) that the plan should be sent
294. Id.
295. Id.
296. Id. at 478.
297. Id.
298. Id.
299. Id. at 479.
300. Id.
301. Id.
302. Id. at 479–80.
303. Id. at 511.
304. Id. at 559.
305. Id. at 559–60.
113
108
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ous, and a higher number if not.279 Sherman argued that since
the present system required unanimous approval, ten seemed
like the right number.280 Randolph argued for nine because it
was a “respectable majority of the whole” and was a familiar
number under the Articles.281 Wilson suggested eight.282 Carroll
argued that the number should be thirteen since unanimity
should be required to dissolve the existing confederation.283
Madison, Wilson, and King debated the issue of whether
non-consenting states could be bound by the action of a majori-
ty or super-majority.284 The whole debate spilled over to the
next day.285 King immediately moved to add the words “be-
tween the said States” to “confine the operation of the Govt. to
the States ratifying it.”286 Nine states voted favorably.287 Mary-
land was the lone dissent.288 Delaware was temporarily without
a quorum. The moral principle of treaty law prevailed—no
state could be bound by a treaty without its consent.
During the debates, various formulas were proposed and re-
jected. Madison offered seven states.289 Morris moved to allow
each state to choose its own method for ratification.290 Sherman,
who argued for ten states on the prior day, now argued that all
thirteen should be required.291 A motion to fill in the blank with 10
states was rejected 7 to 4.292 Nine states (which was apparently
moved by Mason) was approved by a vote of 8 to 3.293 Virginia
279. Id.
280. Id. at 468–69.
281. Id. at 469. Nine states could declare war and take other military actions, for
example. See ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 6.
282. 2 FARRAND’S RECORDS, supra note 107, at 469.
283. Id.
284. Id.
285. Id.
286. Id. at 475.
287. Id.
288. Id.
289. Id.
290. Id.
291. Id.
292. Id. at 477.
293. Id.
No. 1]
Defying Conventional Wisdom 109
and both Carolinas voted no.294 Then final passage of the Article
as amended was approved by all states save for Maryland.295
The debate then turned to Article XXII which required the ap-
probation of Congress and then submission to the ratification
conventions, with the state legislatures being responsible for the
calling and associated rules.296 Morris moved to strike the phrase
requiring the “approbation” of Congress.297 His motion passed
eight states to three—with Massachusetts, Maryland, and Georgia
voting no.298 Other skirmishes ensued, the most important of
which was the suggestion of Randolph to allow the state ratifica-
tion conventions to be at liberty to propose amendments which
would then be submitted to a second general convention.299 He
generated no support for his idea.300 Final passage on Article XXII
as drafted was 10 to 1, with Maryland again being the lone dis-
sent.301 Article XXIII, which provided a transition plan for moving
from the Articles to the Constitution, was then approved with a
minor amendment without dissent.302
On September 5th, Gerry gave notice that he intended to
move for reconsideration of Articles XIX, XX, XXI, and XXII.303
His motions regarding Articles XXI and XXII were heard on
September 10th.304 Gerry argued that failing to require the ap-
probation of Congress would give umbrage to that body.305
Hamilton spoke strongly in support of Gerry’s motion:
Mr. Hamilton concurred with Mr. Gerry as to the indeco-
rum of not requiring the approbation of Congress. He con-
sidered this as a necessary ingredient in the transaction. He
thought it wrong also to allow nine States as provided by
art. XXI. to institute a new Government on the ruins of the
existing one. He [would] propose as a better modification
of the two articles (XXI & XXII) that the plan should be sent
294. Id.
295. Id.
296. Id. at 478.
297. Id.
298. Id.
299. Id. at 479.
300. Id.
301. Id.
302. Id. at 479–80.
303. Id. at 511.
304. Id. at 559.
305. Id. at 559–60.
108
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[Vol. 40
ous, and a higher number if not.279 Sherman argued that since
the present system required unanimous approval, ten seemed
like the right number.280 Randolph argued for nine because it
was a “respectable majority of the whole” and was a familiar
number under the Articles.281 Wilson suggested eight.282 Carroll
argued that the number should be thirteen since unanimity
should be required to dissolve the existing confederation.283
Madison, Wilson, and King debated the issue of whether
non-consenting states could be bound by the action of a majori-
ty or super-majority.284 The whole debate spilled over to the
next day.285 King immediately moved to add the words “be-
tween the said States” to “confine the operation of the Govt. to
the States ratifying it.”286 Nine states voted favorably.287 Mary-
land was the lone dissent.288 Delaware was temporarily without
a quorum. The moral principle of treaty law prevailed—no
state could be bound by a treaty without its consent.
During the debates, various formulas were proposed and re-
jected. Madison offered seven states.289 Morris moved to allow
each state to choose its own method for ratification.290 Sherman,
who argued for ten states on the prior day, now argued that all
thirteen should be required.291 A motion to fill in the blank with 10
states was rejected 7 to 4.292 Nine states (which was apparently
moved by Mason) was approved by a vote of 8 to 3.293 Virginia
279. Id.
280. Id. at 468–69.
281. Id. at 469. Nine states could declare war and take other military actions, for
example. See ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 6.
282. 2 FARRAND’S RECORDS, supra note 107, at 469.
283. Id.
284. Id.
285. Id.
286. Id. at 475.
287. Id.
288. Id.
289. Id.
290. Id.
291. Id.
292. Id. at 477.
293. Id.
No. 1]
Defying Conventional Wisdom 109
and both Carolinas voted no.294 Then final passage of the Arti
as amended was approved by all states save for Maryland.295
The debate then turned to Article XXII which required the ap
probation of Congress and then submission to the ratificatio
conventions, with the state legislatures being responsible for
calling and associated rules.296 Morris moved to strike the phra
requiring the “approbation” of Congress.297 His motion pass
eight states to three—with Massachusetts, Maryland, and Geor
voting no.298 Other skirmishes ensued, the most important of
which was the suggestion of Randolph to allow the state ratifica
tion conventions to be at liberty to propose amendments which
would then be submitted to a second general convention.299 He
generated no support for his idea.300 Final passage on Article X
as drafted was 10 to 1, with Maryland again being the lone dis-
sent.301 Article XXIII, which provided a transition plan for moving
from the Articles to the Constitution, was then approved with
minor amendment without dissent.302
On September 5th, Gerry gave notice that he intended t
move for reconsideration of Articles XIX, XX, XXI, and XXII.303
His motions regarding Articles XXI and XXII were heard on
September 10th.304 Gerry argued that failing to require the ap-
probation of Congress would give umbrage to that body 305
Hamilton spoke strongly in support of Gerry’s motion:
Mr. Hamilton concurred with Mr. Gerry as to the indeco-
rum of not requiring the approbation of Congress. He con-
sidered this as a necessary ingredient in the transaction. He
thought it wrong also to allow nine States as provided by
art. XXI. to institute a new Government on the ruins of the
existing one. He [would] propose as a better modification
of the two articles (XXI & XXII) that the plan should be sent
294. Id.
295. Id.
296. Id. at 478.
297. Id.
298. Id.
299. Id. at 479.
300. Id.
301. Id.
302. Id. at 479–80.
303. Id. at 511.
304. Id. at 559.
305. Id. at 559–60.
114
110
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[Vol. 40
to Congress in order that the same if approved by them,
may be communicated to the State Legislatures, to the end
that they may refer it to State Conventions; each Legisla-
ture declaring that if the convention of the State should
think the plan ought to take effect among nine ratifying
States, the same [should] take effect accordingly.306
In other words, Hamilton argued that the plan for nine states to
approve the new Constitution would in fact be appropriate if the
new plan for ratification was first approved by the Congress and
then by the thirteen state legislatures. Hamilton’s proposal would
thread the needle, achieving both of the competing interests—the
desire to follow the recognized procedures to achieve legal validi-
ty (approval of the new process both by Congress and the state
legislatures) as well as the desire to ground the Constitution in the
moral authority that flows from the approval of the people. Sher-
man made a second important suggestion in accord with Hamil-
ton. Rather than embodying the Hamilton plan in the text of the
proposed Constitution, Sherman proposed that these ratification
requirements should be made a “separate Act”—a formal pro-
posal having legal weight but distinct from the ultimate docu-
ment itself.307 The motion to reconsider was passed seven to
three with New Hampshire divided. Massachusetts, Pennsyl-
vania, and South Carolina were the dissenting states.308
A motion to take up Hamilton’s idea was defeated, on a pro-
cedural vote, 10 to 1.309 Article XXI as submitted was then ap-
proved unanimously.310 Hamilton withdrew his motion regard-
ing Article XXII since it was certain to meet with the same
defeat.311 Hamilton’s motion would have provided a very clear
argument for both legal and moral validity—but at this stage it
was rejected.312 Immediately after this vote, the Constitution
was committed to the final committee of style to prepare the
final draft of the Constitution.313
306. Id. at 560.
307. Id. at 561.
308. Id.
309. Id. at 563.
310. Id.
311. Id.
312. Id.
313. Id. at 564.
No. 1]
Defying Conventional Wisdom 111
Surprisingly, on September 10th, the Committee of Style re-
turned with final language that essentially tracked the sugges-
tions of Hamilton and Sherman.314 The final version of Article
VII regarding ratification followed the previously approved
text of the draft Article XXI: “The ratification of the Conven-
tions of nine States shall be sufficient for the establishment of
this Constitution between the States so ratifying the same.”315
The contents of draft Articles XXII and XXIII were placed in-
to a separate formal act adopted unanimously as an official act
of the Convention.316 The controlling paragraph of this second
official enactment read as following:
Resolved, That the preceding Constitution be laid before the
United States in Congress assembled, and that it is the Opin-
ion of this Convention, that it should afterwards be submit-
ted to a Convention of Delegates, chosen in each State by the
People thereof, under the Recommendation of its Legisla-
ture, for their Assent and Ratification; and that each Con-
vention assenting to, and ratifying the Same, should give
Notice thereof to the United States in Congress assembled.317
This Act also contained the transition plan for elections for the
new government that had been previously drafted as Article
XXIII.318 In addition to the Constitution and the “Ratification and
Transition” Resolution, a formal letter of transmission was also
sent from the Convention to Congress.319 The letter was adopted
by the “Unanimous Order of the Convention” and formally
signed by George Washington, President of the Convention.320
In the end, the Convention followed Hamilton’s suggestion
as to content and Sherman’s suggestion as to bifurcation. They
would lay the matter before Congress with the request that
Congress send the matter to the state legislatures.321 The legisla-
tures were, in turn, requested to approve the new methodology
for ratification.322 It is this final product that must be considered
314. Id. at 579.
315. Id. at 603.
316. Id. at 604–05, 665–66.
317. Id. at 665.
318. Id. at 665–66.
319. Id. at 666–67.
320. Id. at 667.
321. Id. at 665.
322. Id.
110
Harvard Journal of Law & Public Policy
[Vol. 40
to Congress in order that the same if approved by them,
may be communicated to the State Legislatures, to the end
that they may refer it to State Conventions; each Legisla-
ture declaring that if the convention of the State should
think the plan ought to take effect among nine ratifying
States, the same [should] take effect accordingly.306
In other words, Hamilton argued that the plan for nine states to
approve the new Constitution would in fact be appropriate if the
new plan for ratification was first approved by the Congress and
then by the thirteen state legislatures. Hamilton’s proposal would
thread the needle, achieving both of the competing interests—the
desire to follow the recognized procedures to achieve legal validi-
ty (approval of the new process both by Congress and the state
legislatures) as well as the desire to ground the Constitution in the
moral authority that flows from the approval of the people. Sher-
man made a second important suggestion in accord with Hamil-
ton. Rather than embodying the Hamilton plan in the text of the
proposed Constitution, Sherman proposed that these ratification
requirements should be made a “separate Act”—a formal pro-
posal having legal weight but distinct from the ultimate docu-
ment itself.307 The motion to reconsider was passed seven to
three with New Hampshire divided. Massachusetts, Pennsyl-
vania, and South Carolina were the dissenting states.308
A motion to take up Hamilton’s idea was defeated, on a pro-
cedural vote, 10 to 1.309 Article XXI as submitted was then ap-
proved unanimously.310 Hamilton withdrew his motion regard-
ing Article XXII since it was certain to meet with the same
defeat.311 Hamilton’s motion would have provided a very clear
argument for both legal and moral validity—but at this stage it
was rejected.312 Immediately after this vote, the Constitution
was committed to the final committee of style to prepare the
final draft of the Constitution.313
306. Id. at 560.
307. Id. at 561.
308. Id.
309. Id. at 563.
310. Id.
311. Id.
312. Id.
313. Id. at 564.
No. 1]
Defying Conventional Wisdom 111
Surprisingly, on September 10th, the Committee of Style re-
turned with final language that essentially tracked the sugg
tions of Hamilton and Sherman.314 The final version of Article
VII regarding ratification followed the previously approved
text of the draft Article XXI: “The ratification of the Conven-
tions of nine States shall be sufficient for the establishment
this Constitution between the States so ratifying the same.”315
The contents of draft Articles XXII and XXIII were placed in
to a separate formal act adopted unanimously as an official
of the Convention.316 The controlling paragraph of this second
official enactment read as following:
Resolved, That the preceding Constitution be laid before the
United States in Congress assembled, and that it is the Opin-
ion of this Convention, that it should afterwards be submit-
ted to a Convention of Delegates, chosen in each State by the
People thereof, under the Recommendation of its Legisla-
ture, for their Assent and Ratification; and that each Con-
vention assenting to, and ratifying the Same, should give
Notice thereof to the United States in Congress assembled.317
This Act also contained the transition plan for elections for the
new government that had been previously drafted as Arti
XXIII.318 In addition to the Constitution and the “Ratification an
Transition” Resolution, a formal letter of transmission was a
sent from the Convention to Congress.319 The letter was adopte
by the “Unanimous Order of the Convention” and form
signed by George Washington, President of the Convention.320
In the end, the Convention followed Hamilton’s suggestion
as to content and Sherman’s suggestion as to bifurcation. Th
would lay the matter before Congress with the request that
Congress send the matter to the state legislatures.321 The legisl
tures were, in turn, requested to approve the new methodol
for ratification.322 It is this final product that must be considered
314. Id. at 579.
315. Id. at 603.
316. Id. at 604–05, 665–66.
317. Id. at 665.
318. Id. at 665–66.
319. Id. at 666–67.
320. Id. at 667.
321. Id. at 665.
322. Id.
115
110
Harvard Journal of Law & Public Policy
[Vol. 40
to Congress in order that the same if approved by them,
may be communicated to the State Legislatures, to the end
that they may refer it to State Conventions; each Legisla-
ture declaring that if the convention of the State should
think the plan ought to take effect among nine ratifying
States, the same [should] take effect accordingly.306
In other words, Hamilton argued that the plan for nine states to
approve the new Constitution would in fact be appropriate if the
new plan for ratification was first approved by the Congress and
then by the thirteen state legislatures. Hamilton’s proposal would
thread the needle, achieving both of the competing interests—the
desire to follow the recognized procedures to achieve legal validi-
ty (approval of the new process both by Congress and the state
legislatures) as well as the desire to ground the Constitution in the
moral authority that flows from the approval of the people. Sher-
man made a second important suggestion in accord with Hamil-
ton. Rather than embodying the Hamilton plan in the text of the
proposed Constitution, Sherman proposed that these ratification
requirements should be made a “separate Act”—a formal pro-
posal having legal weight but distinct from the ultimate docu-
ment itself.307 The motion to reconsider was passed seven to
three with New Hampshire divided. Massachusetts, Pennsyl-
vania, and South Carolina were the dissenting states.308
A motion to take up Hamilton’s idea was defeated, on a pro-
cedural vote, 10 to 1.309 Article XXI as submitted was then ap-
proved unanimously.310 Hamilton withdrew his motion regard-
ing Article XXII since it was certain to meet with the same
defeat.311 Hamilton’s motion would have provided a very clear
argument for both legal and moral validity—but at this stage it
was rejected.312 Immediately after this vote, the Constitution
was committed to the final committee of style to prepare the
final draft of the Constitution.313
306. Id. at 560.
307. Id. at 561.
308. Id.
309. Id. at 563.
310. Id.
311. Id.
312. Id.
313. Id. at 564.
No. 1]
Defying Conventional Wisdom 111
Surprisingly, on September 10th, the Committee of Style re-
turned with final language that essentially tracked the sugges-
tions of Hamilton and Sherman.314 The final version of Article
VII regarding ratification followed the previously approved
text of the draft Article XXI: “The ratification of the Conven-
tions of nine States shall be sufficient for the establishment of
this Constitution between the States so ratifying the same.”315
The contents of draft Articles XXII and XXIII were placed in-
to a separate formal act adopted unanimously as an official act
of the Convention.316 The controlling paragraph of this second
official enactment read as following:
Resolved, That the preceding Constitution be laid before the
United States in Congress assembled, and that it is the Opin-
ion of this Convention, that it should afterwards be submit-
ted to a Convention of Delegates, chosen in each State by the
People thereof, under the Recommendation of its Legisla-
ture, for their Assent and Ratification; and that each Con-
vention assenting to, and ratifying the Same, should give
Notice thereof to the United States in Congress assembled.317
This Act also contained the transition plan for elections for the
new government that had been previously drafted as Article
XXIII.318 In addition to the Constitution and the “Ratification and
Transition” Resolution, a formal letter of transmission was also
sent from the Convention to Congress.319 The letter was adopted
by the “Unanimous Order of the Convention” and formally
signed by George Washington, President of the Convention.320
In the end, the Convention followed Hamilton’s suggestion
as to content and Sherman’s suggestion as to bifurcation. They
would lay the matter before Congress with the request that
Congress send the matter to the state legislatures.321 The legisla-
tures were, in turn, requested to approve the new methodology
for ratification.322 It is this final product that must be considered
314. Id. at 579.
315. Id. at 603.
316. Id. at 604–05, 665–66.
317. Id. at 665.
318. Id. at 665–66.
319. Id. at 666–67.
320. Id. at 667.
321. Id. at 665.
322. Id.
110
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[Vol. 40
to Congress in order that the same if approved by them,
may be communicated to the State Legislatures, to the end
that they may refer it to State Conventions; each Legisla-
ture declaring that if the convention of the State should
think the plan ought to take effect among nine ratifying
States, the same [should] take effect accordingly.306
In other words, Hamilton argued that the plan for nine states to
approve the new Constitution would in fact be appropriate if the
new plan for ratification was first approved by the Congress and
then by the thirteen state legislatures. Hamilton’s proposal would
thread the needle, achieving both of the competing interests—the
desire to follow the recognized procedures to achieve legal validi-
ty (approval of the new process both by Congress and the state
legislatures) as well as the desire to ground the Constitution in the
moral authority that flows from the approval of the people. Sher-
man made a second important suggestion in accord with Hamil-
ton. Rather than embodying the Hamilton plan in the text of the
proposed Constitution, Sherman proposed that these ratification
requirements should be made a “separate Act”—a formal pro-
posal having legal weight but distinct from the ultimate docu-
ment itself.307 The motion to reconsider was passed seven to
three with New Hampshire divided. Massachusetts, Pennsyl-
vania, and South Carolina were the dissenting states.308
A motion to take up Hamilton’s idea was defeated, on a pro-
cedural vote, 10 to 1.309 Article XXI as submitted was then ap-
proved unanimously.310 Hamilton withdrew his motion regard-
ing Article XXII since it was certain to meet with the same
defeat.311 Hamilton’s motion would have provided a very clear
argument for both legal and moral validity—but at this stage it
was rejected.312 Immediately after this vote, the Constitution
was committed to the final committee of style to prepare the
final draft of the Constitution.313
306. Id. at 560.
307. Id. at 561.
308. Id.
309. Id. at 563.
310. Id.
311. Id.
312. Id.
313. Id. at 564.
No. 1]
Defying Conventional Wisdom 111
Surprisingly, on September 10th, the Committee of Style re-
turned with final language that essentially tracked the sugg
tions of Hamilton and Sherman.314 The final version of Article
VII regarding ratification followed the previously approved
text of the draft Article XXI: “The ratification of the Conven-
tions of nine States shall be sufficient for the establishment
this Constitution between the States so ratifying the same.”315
The contents of draft Articles XXII and XXIII were placed in
to a separate formal act adopted unanimously as an official
of the Convention.316 The controlling paragraph of this second
official enactment read as following:
Resolved, That the preceding Constitution be laid before the
United States in Congress assembled, and that it is the Opin-
ion of this Convention, that it should afterwards be submit-
ted to a Convention of Delegates, chosen in each State by the
People thereof, under the Recommendation of its Legisla-
ture, for their Assent and Ratification; and that each Con-
vention assenting to, and ratifying the Same, should give
Notice thereof to the United States in Congress assembled.317
This Act also contained the transition plan for elections for the
new government that had been previously drafted as Arti
XXIII.318 In addition to the Constitution and the “Ratification an
Transition” Resolution, a formal letter of transmission was a
sent from the Convention to Congress.319 The letter was adopte
by the “Unanimous Order of the Convention” and form
signed by George Washington, President of the Convention.320
In the end, the Convention followed Hamilton’s suggestion
as to content and Sherman’s suggestion as to bifurcation. Th
would lay the matter before Congress with the request that
Congress send the matter to the state legislatures.321 The legisl
tures were, in turn, requested to approve the new methodol
for ratification.322 It is this final product that must be considered
314. Id. at 579.
315. Id. at 603.
316. Id. at 604–05, 665–66.
317. Id. at 665.
318. Id. at 665–66.
319. Id. at 666–67.
320. Id. at 667.
321. Id. at 665.
322. Id.
116
112
Harvard Journal of Law & Public Policy
[Vol. 40
in assessing the legality of the process employed for ratifica-
tion—not any of the prior suggestions or drafts that were con-
sidered by the Convention.
There appears to be no scholarly work that assesses the va-
lidity of the ratification process taking into account the full
process sanctioned by the Convention, followed by Congress,
and approved by the thirteen state legislatures. No one would
doubt the need to consider the legal ramifications of this lan-
guage had it remained in the text of the Constitution. The deci-
sion of the Convention to separate the transitional articles into
a separate act was not done so as to deny their efficacy. It was
an apparent decision to not clutter the Constitution of the Unit-
ed States with language that was temporary in nature. This
language was just as formal as the Constitution itself and actu-
ally was employed by the sanction of Congress and the state
legislatures for both the ratification process and in planning for
an orderly transition.
C. Debates in the Confederation Congress
On September 19th, the Secretary of the Constitutional Con-
vention, William Jackson, delivered the Constitution, the “Rati-
fication and Transition” Resolution, and the letter to the Secre-
tary of the Confederation Congress, Charles Thompson.323 It
was read to Congress on September 20th and the date of Sep-
tember 26th was assigned for its consideration.324 The debate
lasted for two days.325
Every speaker in Congress ultimately argued that the Consti-
tution should be laid before the people via the convention pro-
cess outlined in Article VII and the “Ratification and Transi-
tion” Resolution.326 However, there was a strong clash over the
approach in so doing. Nathan Dane wanted Congress to adopt
language that explained that since the “constitution appears to
be intended as an entire system in itself, and not as any part of,
or alteration in the Articles of Confederation” Congress—
which was a creature of the Articles—was powerless to take
323. 13 DHRC, supra note 4, at 229.
324. Id.
325. Id.
326. See 1 DHRC, supra note 4, at 327–340.
No. 1]
Defying Conventional Wisdom 113
any action thereon.327 Richard Henry Lee proposed a resolution
stating that the Articles of Confederation did not authorize
Congress to create a new confederacy of nine states, but, out of
respect, sending the Convention’s plan to the states anyway.328
He further recommended that Congress amend the Constitu-
tion.329 Madison wanted Congress to formally approve the
Constitution.330 He agreed with Lee that Congress had the
power to amend the document, but if it did so, then it would be
subject to the procedural requirements of Article XIII which
would require the assent of thirteen legislatures rather than
nine state conventions.331 Dane and R.H. Lee repeatedly point-
ed out that approving the new process “brings into view so
materially [the] question of 9 States should be adopted.”332
Those arguing against the Constitution wanted Congress to re-
view it article by article. Those arguing for the Constitution
sought to avoid a repetition of the work of the Convention. In the
end, Congress adopted essentially the same approach as was ad-
vocated by Hamilton at the end of the Constitutional Convention:
Congress having received the report of the Convention
lately assembled in Philadelphia.
Resolved unanimously, That the said report with the reso-
lutions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.333
Specifically referencing the accompanying resolutions (“Ratifi-
cation and Transition”), Congress limited its approval to the
process itself, rather than the Constitution on its substance.334
The editors of the encyclopedic Documentary History of the
327. Nathan Dane’s Motion (Sept. 26, 1787), reprinted in 1 DHRC, supra note 4, at
327, 328.
328. Richard Henry Lee’s Motion (Sept. 27, 1787), reprinted in 1 DHRC, supra
note 4, at 329, 329.
329. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note 4,
at 335, 336.
330. See id. at 335.
331. Id. at 336.
332. Debates (Sept. 27, 1787), reprinted in 13 DHRC, supra note 4, at 234, 234–35.
333. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4, at
340, 340.
334. See id.
112
Harvard Journal of Law & Public Policy
[Vol. 40
in assessing the legality of the process employed for ratifica-
tion—not any of the prior suggestions or drafts that were con-
sidered by the Convention.
There appears to be no scholarly work that assesses the va-
lidity of the ratification process taking into account the full
process sanctioned by the Convention, followed by Congress,
and approved by the thirteen state legislatures. No one would
doubt the need to consider the legal ramifications of this lan-
guage had it remained in the text of the Constitution. The deci-
sion of the Convention to separate the transitional articles into
a separate act was not done so as to deny their efficacy. It was
an apparent decision to not clutter the Constitution of the Unit-
ed States with language that was temporary in nature. This
language was just as formal as the Constitution itself and actu-
ally was employed by the sanction of Congress and the state
legislatures for both the ratification process and in planning for
an orderly transition.
C. Debates in the Confederation Congress
On September 19th, the Secretary of the Constitutional Con-
vention, William Jackson, delivered the Constitution, the “Rati-
fication and Transition” Resolution, and the letter to the Secre-
tary of the Confederation Congress, Charles Thompson.323 It
was read to Congress on September 20th and the date of Sep-
tember 26th was assigned for its consideration.324 The debate
lasted for two days.325
Every speaker in Congress ultimately argued that the Consti-
tution should be laid before the people via the convention pro-
cess outlined in Article VII and the “Ratification and Transi-
tion” Resolution.326 However, there was a strong clash over the
approach in so doing. Nathan Dane wanted Congress to adopt
language that explained that since the “constitution appears to
be intended as an entire system in itself, and not as any part of,
or alteration in the Articles of Confederation” Congress—
which was a creature of the Articles—was powerless to take
323. 13 DHRC, supra note 4, at 229.
324. Id.
325. Id.
326. See 1 DHRC, supra note 4, at 327–340.
No. 1]
Defying Conventional Wisdom 113
any action thereon.327 Richard Henry Lee proposed a resolution
stating that the Articles of Confederation did not authorize
Congress to create a new confederacy of nine states, but, out
respect, sending the Convention’s plan to the states anyway 328
He further recommended that Congress amend the Consti
tion.329 Madison wanted Congress to formally approve the
Constitution.330 He agreed with Lee that Congress had th
power to amend the document, but if it did so, then it would be
subject to the procedural requirements of Article XIII which
would require the assent of thirteen legislatures rather than
nine state conventions.331 Dane and R.H. Lee repeatedly point-
ed out that approving the new process “brings into view so
materially [the] question of 9 States should be adopted.”332
Those arguing against the Constitution wanted Congress to re-
view it article by article. Those arguing for the Constitution
sought to avoid a repetition of the work of the Convention. In the
end, Congress adopted essentially the same approach as was ad-
vocated by Hamilton at the end of the Constitutional Convention:
Congress having received the report of the Convention
lately assembled in Philadelphia.
Resolved unanimously, That the said report with the reso-
lutions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.333
Specifically referencing the accompanying resolutions (“Ratifi-
cation and Transition”), Congress limited its approval to the
process itself, rather than the Constitution on its substance.334
The editors of the encyclopedic Documentary History of t
327. Nathan Dane’s Motion (Sept. 26, 1787), reprinted in 1 DHRC, supra note 4
327, 328.
328. Richard Henry Lee’s Motion (Sept. 27, 1787), reprinted in 1 DHRC, sup
note 4, at 329, 329.
329. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note
at 335, 336.
330. See id. at 335.
331. Id. at 336.
332. Debates (Sept. 27, 1787), reprinted in 13 DHRC, supra note 4, at 234, 234–35.
333. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
340, 340.
334. See id.
117
112
Harvard Journal of Law & Public Policy
[Vol. 40
in assessing the legality of the process employed for ratifica-
tion—not any of the prior suggestions or drafts that were con-
sidered by the Convention.
There appears to be no scholarly work that assesses the va-
lidity of the ratification process taking into account the full
process sanctioned by the Convention, followed by Congress,
and approved by the thirteen state legislatures. No one would
doubt the need to consider the legal ramifications of this lan-
guage had it remained in the text of the Constitution. The deci-
sion of the Convention to separate the transitional articles into
a separate act was not done so as to deny their efficacy. It was
an apparent decision to not clutter the Constitution of the Unit-
ed States with language that was temporary in nature. This
language was just as formal as the Constitution itself and actu-
ally was employed by the sanction of Congress and the state
legislatures for both the ratification process and in planning for
an orderly transition.
C. Debates in the Confederation Congress
On September 19th, the Secretary of the Constitutional Con-
vention, William Jackson, delivered the Constitution, the “Rati-
fication and Transition” Resolution, and the letter to the Secre-
tary of the Confederation Congress, Charles Thompson.323 It
was read to Congress on September 20th and the date of Sep-
tember 26th was assigned for its consideration.324 The debate
lasted for two days.325
Every speaker in Congress ultimately argued that the Consti-
tution should be laid before the people via the convention pro-
cess outlined in Article VII and the “Ratification and Transi-
tion” Resolution.326 However, there was a strong clash over the
approach in so doing. Nathan Dane wanted Congress to adopt
language that explained that since the “constitution appears to
be intended as an entire system in itself, and not as any part of,
or alteration in the Articles of Confederation” Congress—
which was a creature of the Articles—was powerless to take
323. 13 DHRC, supra note 4, at 229.
324. Id.
325. Id.
326. See 1 DHRC, supra note 4, at 327–340.
No. 1]
Defying Conventional Wisdom 113
any action thereon.327 Richard Henry Lee proposed a resolution
stating that the Articles of Confederation did not authorize
Congress to create a new confederacy of nine states, but, out of
respect, sending the Convention’s plan to the states anyway.328
He further recommended that Congress amend the Constitu-
tion.329 Madison wanted Congress to formally approve the
Constitution.330 He agreed with Lee that Congress had the
power to amend the document, but if it did so, then it would be
subject to the procedural requirements of Article XIII which
would require the assent of thirteen legislatures rather than
nine state conventions.331 Dane and R.H. Lee repeatedly point-
ed out that approving the new process “brings into view so
materially [the] question of 9 States should be adopted.”332
Those arguing against the Constitution wanted Congress to re-
view it article by article. Those arguing for the Constitution
sought to avoid a repetition of the work of the Convention. In the
end, Congress adopted essentially the same approach as was ad-
vocated by Hamilton at the end of the Constitutional Convention:
Congress having received the report of the Convention
lately assembled in Philadelphia.
Resolved unanimously, That the said report with the reso-
lutions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.333
Specifically referencing the accompanying resolutions (“Ratifi-
cation and Transition”), Congress limited its approval to the
process itself, rather than the Constitution on its substance.334
The editors of the encyclopedic Documentary History of the
327. Nathan Dane’s Motion (Sept. 26, 1787), reprinted in 1 DHRC, supra note 4, at
327, 328.
328. Richard Henry Lee’s Motion (Sept. 27, 1787), reprinted in 1 DHRC, supra
note 4, at 329, 329.
329. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note 4,
at 335, 336.
330. See id. at 335.
331. Id. at 336.
332. Debates (Sept. 27, 1787), reprinted in 13 DHRC, supra note 4, at 234, 234–35.
333. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4, at
340, 340.
334. See id.
112
Harvard Journal of Law & Public Policy
[Vol. 40
in assessing the legality of the process employed for ratifica-
tion—not any of the prior suggestions or drafts that were con-
sidered by the Convention.
There appears to be no scholarly work that assesses the va-
lidity of the ratification process taking into account the full
process sanctioned by the Convention, followed by Congress,
and approved by the thirteen state legislatures. No one would
doubt the need to consider the legal ramifications of this lan-
guage had it remained in the text of the Constitution. The deci-
sion of the Convention to separate the transitional articles into
a separate act was not done so as to deny their efficacy. It was
an apparent decision to not clutter the Constitution of the Unit-
ed States with language that was temporary in nature. This
language was just as formal as the Constitution itself and actu-
ally was employed by the sanction of Congress and the state
legislatures for both the ratification process and in planning for
an orderly transition.
C. Debates in the Confederation Congress
On September 19th, the Secretary of the Constitutional Con-
vention, William Jackson, delivered the Constitution, the “Rati-
fication and Transition” Resolution, and the letter to the Secre-
tary of the Confederation Congress, Charles Thompson.323 It
was read to Congress on September 20th and the date of Sep-
tember 26th was assigned for its consideration.324 The debate
lasted for two days.325
Every speaker in Congress ultimately argued that the Consti-
tution should be laid before the people via the convention pro-
cess outlined in Article VII and the “Ratification and Transi-
tion” Resolution.326 However, there was a strong clash over the
approach in so doing. Nathan Dane wanted Congress to adopt
language that explained that since the “constitution appears to
be intended as an entire system in itself, and not as any part of,
or alteration in the Articles of Confederation” Congress—
which was a creature of the Articles—was powerless to take
323. 13 DHRC, supra note 4, at 229.
324. Id.
325. Id.
326. See 1 DHRC, supra note 4, at 327–340.
No. 1]
Defying Conventional Wisdom 113
any action thereon.327 Richard Henry Lee proposed a resolution
stating that the Articles of Confederation did not authorize
Congress to create a new confederacy of nine states, but, out
respect, sending the Convention’s plan to the states anyway 328
He further recommended that Congress amend the Consti
tion.329 Madison wanted Congress to formally approve the
Constitution.330 He agreed with Lee that Congress had th
power to amend the document, but if it did so, then it would be
subject to the procedural requirements of Article XIII which
would require the assent of thirteen legislatures rather than
nine state conventions.331 Dane and R.H. Lee repeatedly point-
ed out that approving the new process “brings into view so
materially [the] question of 9 States should be adopted.”332
Those arguing against the Constitution wanted Congress to re-
view it article by article. Those arguing for the Constitution
sought to avoid a repetition of the work of the Convention. In the
end, Congress adopted essentially the same approach as was ad-
vocated by Hamilton at the end of the Constitutional Convention:
Congress having received the report of the Convention
lately assembled in Philadelphia.
Resolved unanimously, That the said report with the reso-
lutions and letter accompanying the same be transmitted to
the several legislatures in order to be submitted to a conven-
tion of delegates chosen in each state by the people thereof
in conformity to the resolves of the Convention made and
provided in that case.333
Specifically referencing the accompanying resolutions (“Ratifi-
cation and Transition”), Congress limited its approval to the
process itself, rather than the Constitution on its substance.334
The editors of the encyclopedic Documentary History of t
327. Nathan Dane’s Motion (Sept. 26, 1787), reprinted in 1 DHRC, supra note 4
327, 328.
328. Richard Henry Lee’s Motion (Sept. 27, 1787), reprinted in 1 DHRC, sup
note 4, at 329, 329.
329. Melancton Smith’s Notes (Sept. 27, 1787), reprinted in 1 DHRC, supra note
at 335, 336.
330. See id. at 335.
331. Id. at 336.
332. Debates (Sept. 27, 1787), reprinted in 13 DHRC, supra note 4, at 234, 234–35.
333. Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
340, 340.
334. See id.
118
114
Harvard Journal of Law & Public Policy
[Vol. 40
Ratification of the Constitution summarize the approach taken
by Congress thusly:
On 28 September Congress reached a compromise. It re-
solved “unanimously” that the Constitution and the resolu-
tions and the letter of the Convention be sent to the states
with only a suggestion that the states call conventions to
consider the Constitution. This compromise followed the
recommendation of the Convention.335
Congress only approved the new process and sent the matter to
the state legislatures with recommendation that they do the same.
D. Thirteen Legislatures Approve the New Process
Given the fact that the Convention had been held in Philadel-
phia, the first state legislature to receive the new Constitution
and the accompanying resolutions was Pennsylvania.336 There
was an effort to call a ratification convention very quickly with
the goal of making the Keystone state the first to ratify the Con-
stitution.337 However, this desire was thwarted by the quorum
rules for the legislature found in the state constitution.338 Rather
than the typical majority requirement, two-thirds of the mem-
bers of the Assembly were necessary to constitute a quorum.339
And even though there was a clear pro-Constitution majority in
the legislature, slightly more than a third of the members delib-
erately absented themselves from the chambers to defeat the
ability of the legislature to transact any business—not only the
calling of the ratification convention, but the ability to complete
the state’s legislative calendar before the end of the session on
September 29th.340 The Anti-Federalists hoped that the forthcom-
ing elections after the end of session would result in a greater
number of anti-Constitution representatives.341
Apparently, this was not the first time that members went
missing for such purposes.342 The Assembly directed the Ser-
geant-at-Arms to find the missing members and to direct them
335. 13 DHRC, supra note 4, at 230.
336. See 2 DHRC, supra note 4, at 54.
337. See id.
338.
Id. at 55.
339. Id.
340. Id.
341. See id. at 54.
342. Id. at 55.
No. 1]
Defying Conventional Wisdom 115
back to their seats—which was their duty under law.343 Finally,
two members were located and were escorted by the Assem-
bly’s messengers—with the enthusiastic support of a threaten-
ing mob—back to their seats.344 These two members were a suf-
ficient addition to constitute a quorum.345 On September 29th,
the Pennsylvania legislature was the first to approve the new
process by calling a convention.346
In October, five state legislatures followed suit: Connecticut
on October 16th,347 Massachusetts on October 25th,348 Georgia
October 26th,349 New Jersey on October 29th,350 and Virginia on
October 31st.351 Georgia is noteworthy because its delegates
were permitted to “adopt or reject any part of the whole.”352 On
November 9th and 10th, Delaware’s legislature approved the
new process by calling a convention.353 Maryland’s Assembly
approved the call of the ratification convention on November
27th and the Senate followed on December 1st.354 In December,
two more state legislatures sanctioned the use of the new pro-
cess: North Carolina on December 6th355 and New Hampshire
on December 14th.356
North Carolina is worthy of special mention. Pauline Maier
notes that despite the fact that “critics of the Constitution con-
343. Id.
344. Id.
345. Id.
346. Assembly Proceedings (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4, at
99, 99–103.
347. House Proceedings, A.M. (Oct. 16, 1787), reprinted in 3 DHRC, supra note 4,
at 364, 364–66.
348. Report of the Joint Committee with Senate and House Amendments (Oct.
19–25, 1787), reprinted in 4 DHRC, supra note 4, at 130, 130–33.
349. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 227–28.
350. Resolutions Calling the State Convention (Oct. 29, 1787), reprinted in 3
DHRC, supra note 4, at 167, 167–68.
351. Resolutions Calling the State Convention (Oct. 31, 1787), reprinted in 8
DHRC, supra note 4, at 118, 118.
352. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 228.
353. Resolutions Calling the State Convention (Nov. 9–10, 1787), reprinted in 3
DHRC, supra note 4, at 90, 90.
354. JOHN FRANKLIN JAMESON, STUDIES IN THE HISTORY OF THE FEDERAL CON-
VENTION OF
1787, at 163 (1903).
355. Id.
356. Id. at 161.
114
Harvard Journal of Law & Public Policy
[Vol. 40
Ratification of the Constitution summarize the approach taken
by Congress thusly:
On 28 September Congress reached a compromise. It re-
solved “unanimously” that the Constitution and the resolu-
tions and the letter of the Convention be sent to the states
with only a suggestion that the states call conventions to
consider the Constitution. This compromise followed the
recommendation of the Convention.335
Congress only approved the new process and sent the matter to
the state legislatures with recommendation that they do the same.
D. Thirteen Legislatures Approve the New Process
Given the fact that the Convention had been held in Philadel-
phia, the first state legislature to receive the new Constitution
and the accompanying resolutions was Pennsylvania.336 There
was an effort to call a ratification convention very quickly with
the goal of making the Keystone state the first to ratify the Con-
stitution.337 However, this desire was thwarted by the quorum
rules for the legislature found in the state constitution.338 Rather
than the typical majority requirement, two-thirds of the mem-
bers of the Assembly were necessary to constitute a quorum.339
And even though there was a clear pro-Constitution majority in
the legislature, slightly more than a third of the members delib-
erately absented themselves from the chambers to defeat the
ability of the legislature to transact any business—not only the
calling of the ratification convention, but the ability to complete
the state’s legislative calendar before the end of the session on
September 29th.340 The Anti-Federalists hoped that the forthcom-
ing elections after the end of session would result in a greater
number of anti-Constitution representatives.341
Apparently, this was not the first time that members went
missing for such purposes.342 The Assembly directed the Ser-
geant-at-Arms to find the missing members and to direct them
335. 13 DHRC, supra note 4, at 230.
336. See 2 DHRC, supra note 4, at 54.
337. See id.
338.
Id. at 55.
339. Id.
340. Id.
341. See id. at 54.
342. Id. at 55.
No. 1]
Defying Conventional Wisdom 115
back to their seats—which was their duty under law.343 Finally,
two members were located and were escorted by the Asse
bly’s messengers—with the enthusiastic support of a threaten-
ing mob—back to their seats.344 These two members were a s
ficient addition to constitute a quorum.345 On September 29th
the Pennsylvania legislature was the first to approve the new
process by calling a convention.346
In October, five state legislatures followed suit: Connectic
on October 16th,347 Massachusetts on October 25th,348 Georgia
October 26th,349 New Jersey on October 29th,350 and Virginia on
October 31st.351 Georgia is noteworthy because its delegates
were permitted to “adopt or reject any part of the whole.”352 On
November 9th and 10th, Delaware’s legislature approved the
new process by calling a convention.353 Maryland’s Assembly
approved the call of the ratification convention on November
27th and the Senate followed on December 1st.354 In Decembe
two more state legislatures sanctioned the use of the new p
cess: North Carolina on December 6th355 and New Hampshire
on December 14th.356
North Carolina is worthy of special mention. Pauline Maie
notes that despite the fact that “critics of the Constitution con-
343. Id.
344. Id.
345. Id.
346. Assembly Proceedings (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4,
99, 99–103.
347. House Proceedings, A.M. (Oct. 16, 1787), reprinted in 3 DHRC, supra note
at 364, 364–66.
348. Report of the Joint Committee with Senate and House Amendments (O
19–25, 1787), reprinted in 4 DHRC, supra note 4, at 130, 130–33.
349. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 227–28.
350. Resolutions Calling the State Convention (Oct. 29, 1787), reprinted in
DHRC, supra note 4, at 167, 167–68.
351. Resolutions Calling the State Convention (Oct. 31, 1787), reprinted in
DHRC, supra note 4, at 118, 118.
352. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 228.
353. Resolutions Calling the State Convention (Nov. 9–10, 1787), reprinted in
DHRC, supra note 4, at 90, 90.
354. JOHN FRANKLIN JAMESON, STUDIES IN THE HISTORY OF THE FEDERAL
VENTION OF
1787, at 163 (1903).
355. Id.
356. Id. at 161.
119
114
Harvard Journal of Law & Public Policy
[Vol. 40
Ratification of the Constitution summarize the approach taken
by Congress thusly:
On 28 September Congress reached a compromise. It re-
solved “unanimously” that the Constitution and the resolu-
tions and the letter of the Convention be sent to the states
with only a suggestion that the states call conventions to
consider the Constitution. This compromise followed the
recommendation of the Convention.335
Congress only approved the new process and sent the matter to
the state legislatures with recommendation that they do the same.
D. Thirteen Legislatures Approve the New Process
Given the fact that the Convention had been held in Philadel-
phia, the first state legislature to receive the new Constitution
and the accompanying resolutions was Pennsylvania.336 There
was an effort to call a ratification convention very quickly with
the goal of making the Keystone state the first to ratify the Con-
stitution.337 However, this desire was thwarted by the quorum
rules for the legislature found in the state constitution.338 Rather
than the typical majority requirement, two-thirds of the mem-
bers of the Assembly were necessary to constitute a quorum.339
And even though there was a clear pro-Constitution majority in
the legislature, slightly more than a third of the members delib-
erately absented themselves from the chambers to defeat the
ability of the legislature to transact any business—not only the
calling of the ratification convention, but the ability to complete
the state’s legislative calendar before the end of the session on
September 29th.340 The Anti-Federalists hoped that the forthcom-
ing elections after the end of session would result in a greater
number of anti-Constitution representatives.341
Apparently, this was not the first time that members went
missing for such purposes.342 The Assembly directed the Ser-
geant-at-Arms to find the missing members and to direct them
335. 13 DHRC, supra note 4, at 230.
336. See 2 DHRC, supra note 4, at 54.
337. See id.
338.
Id. at 55.
339. Id.
340. Id.
341. See id. at 54.
342. Id. at 55.
No. 1]
Defying Conventional Wisdom 115
back to their seats—which was their duty under law.343 Finally,
two members were located and were escorted by the Assem-
bly’s messengers—with the enthusiastic support of a threaten-
ing mob—back to their seats.344 These two members were a suf-
ficient addition to constitute a quorum.345 On September 29th,
the Pennsylvania legislature was the first to approve the new
process by calling a convention.346
In October, five state legislatures followed suit: Connecticut
on October 16th,347 Massachusetts on October 25th,348 Georgia
October 26th,349 New Jersey on October 29th,350 and Virginia on
October 31st.351 Georgia is noteworthy because its delegates
were permitted to “adopt or reject any part of the whole.”352 On
November 9th and 10th, Delaware’s legislature approved the
new process by calling a convention.353 Maryland’s Assembly
approved the call of the ratification convention on November
27th and the Senate followed on December 1st.354 In December,
two more state legislatures sanctioned the use of the new pro-
cess: North Carolina on December 6th355 and New Hampshire
on December 14th.356
North Carolina is worthy of special mention. Pauline Maier
notes that despite the fact that “critics of the Constitution con-
343. Id.
344. Id.
345. Id.
346. Assembly Proceedings (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4, at
99, 99–103.
347. House Proceedings, A.M. (Oct. 16, 1787), reprinted in 3 DHRC, supra note 4,
at 364, 364–66.
348. Report of the Joint Committee with Senate and House Amendments (Oct.
19–25, 1787), reprinted in 4 DHRC, supra note 4, at 130, 130–33.
349. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 227–28.
350. Resolutions Calling the State Convention (Oct. 29, 1787), reprinted in 3
DHRC, supra note 4, at 167, 167–68.
351. Resolutions Calling the State Convention (Oct. 31, 1787), reprinted in 8
DHRC, supra note 4, at 118, 118.
352. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 228.
353. Resolutions Calling the State Convention (Nov. 9–10, 1787), reprinted in 3
DHRC, supra note 4, at 90, 90.
354. JOHN FRANKLIN JAMESON, STUDIES IN THE HISTORY OF THE FEDERAL CON-
VENTION OF
1787, at 163 (1903).
355. Id.
356. Id. at 161.
114
Harvard Journal of Law & Public Policy
[Vol. 40
Ratification of the Constitution summarize the approach taken
by Congress thusly:
On 28 September Congress reached a compromise. It re-
solved “unanimously” that the Constitution and the resolu-
tions and the letter of the Convention be sent to the states
with only a suggestion that the states call conventions to
consider the Constitution. This compromise followed the
recommendation of the Convention.335
Congress only approved the new process and sent the matter to
the state legislatures with recommendation that they do the same.
D. Thirteen Legislatures Approve the New Process
Given the fact that the Convention had been held in Philadel-
phia, the first state legislature to receive the new Constitution
and the accompanying resolutions was Pennsylvania.336 There
was an effort to call a ratification convention very quickly with
the goal of making the Keystone state the first to ratify the Con-
stitution.337 However, this desire was thwarted by the quorum
rules for the legislature found in the state constitution.338 Rather
than the typical majority requirement, two-thirds of the mem-
bers of the Assembly were necessary to constitute a quorum.339
And even though there was a clear pro-Constitution majority in
the legislature, slightly more than a third of the members delib-
erately absented themselves from the chambers to defeat the
ability of the legislature to transact any business—not only the
calling of the ratification convention, but the ability to complete
the state’s legislative calendar before the end of the session on
September 29th.340 The Anti-Federalists hoped that the forthcom-
ing elections after the end of session would result in a greater
number of anti-Constitution representatives.341
Apparently, this was not the first time that members went
missing for such purposes.342 The Assembly directed the Ser-
geant-at-Arms to find the missing members and to direct them
335. 13 DHRC, supra note 4, at 230.
336. See 2 DHRC, supra note 4, at 54.
337. See id.
338.
Id. at 55.
339. Id.
340. Id.
341. See id. at 54.
342. Id. at 55.
No. 1]
Defying Conventional Wisdom 115
back to their seats—which was their duty under law.343 Finally,
two members were located and were escorted by the Asse
bly’s messengers—with the enthusiastic support of a threaten-
ing mob—back to their seats.344 These two members were a s
ficient addition to constitute a quorum.345 On September 29th
the Pennsylvania legislature was the first to approve the new
process by calling a convention.346
In October, five state legislatures followed suit: Connectic
on October 16th,347 Massachusetts on October 25th,348 Georgia
October 26th,349 New Jersey on October 29th,350 and Virginia on
October 31st.351 Georgia is noteworthy because its delegates
were permitted to “adopt or reject any part of the whole.”352 On
November 9th and 10th, Delaware’s legislature approved the
new process by calling a convention.353 Maryland’s Assembly
approved the call of the ratification convention on November
27th and the Senate followed on December 1st.354 In Decembe
two more state legislatures sanctioned the use of the new p
cess: North Carolina on December 6th355 and New Hampshire
on December 14th.356
North Carolina is worthy of special mention. Pauline Maie
notes that despite the fact that “critics of the Constitution con-
343. Id.
344. Id.
345. Id.
346. Assembly Proceedings (Sept. 28, 1787), reprinted in 2 DHRC, supra note 4,
99, 99–103.
347. House Proceedings, A.M. (Oct. 16, 1787), reprinted in 3 DHRC, supra note
at 364, 364–66.
348. Report of the Joint Committee with Senate and House Amendments (O
19–25, 1787), reprinted in 4 DHRC, supra note 4, at 130, 130–33.
349. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 227–28.
350. Resolutions Calling the State Convention (Oct. 29, 1787), reprinted in
DHRC, supra note 4, at 167, 167–68.
351. Resolutions Calling the State Convention (Oct. 31, 1787), reprinted in
DHRC, supra note 4, at 118, 118.
352. Assembly Proceedings (Oct. 26, 1787), reprinted in 3 DHRC, supra note 4, at
227, 228.
353. Resolutions Calling the State Convention (Nov. 9–10, 1787), reprinted i
DHRC, supra note 4, at 90, 90.
354. JOHN FRANKLIN JAMESON, STUDIES IN THE HISTORY OF THE FEDERAL
VENTION OF
1787, at 163 (1903).
355. Id.
356. Id. at 161.
120
116
Harvard Journal of Law & Public Policy
[Vol. 40
trolled both houses,” “[t]hey had . . . no intention of departing
from the prescribed way of considering the Constitution.”357
Like the others, the North Carolina legislature approved the
new method of ratification and held a ratification convention
for the Constitution.358
On January 19th, 1788, South Carolina approved the new
methodology,359 followed by New York on February 1st.360 Final-
ly, on March 1st the Rhode Island legislature took action.361
Rhode Island was by far the most antagonistic state toward the
Constitution. Many different approaches were considered.
Rhode Island had previously explained that its failure to partici-
pate in the Constitutional Convention was based on the fact that
the legislature had never been authorized by the people to send
delegates to a convention for such a purpose.362 Many critics of
Rhode Island, including the representatives from the more pop-
ulous cities in the state, contended that this argument was spe-
cious and was nothing more than a tactic to express opposition
to any move toward a stronger central government.363
In the end, the language adopted by the Rhode Island legisla-
ture was remarkably neutral in submitting the matter to the peo-
ple. After reciting the procedural history of the Constitutional
Convention, the legislature approved the following:
And whereas this Legislative Body, in General Assembly
convened, conceiving themselves Representatives of the
great Body of People at large, and that they cannot make any
Innovations in a Constitution which has been agreed upon,
and the Compact settled between the Governors and Gov-
erned, without the express Consent of the Freemen at large,
by their own Voices individually taken in Town-Meetings
assembled: Wherefore, for the Purpose aforesaid, and for
357. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION,
1787–1788, at 403 (2010).
358. JAMESON, supra note 354, at 163.
359. Id. at 164.
360. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 703–07.
361. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788),
reprinted in 24 DHRC, supra note 4, at 133, 133–35.
362. Letter from the Rhode Island General Assembly to the President of Con-
gress, Newport (Sept. 15, 1787), reprinted in 24 DHRC, supra note 4, at 19, 19–21.
363. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–23.
No. 1]
Defying Conventional Wisdom 117
submitting the said Constitution for the United States to the
Consideration of the Freemen of this State.364
The Freemen were tasked with the duty to “deliberate upon,
and determine . . . . whether the said Constitution shall be
adopted or negatived.”365 In effect, the Rhode Island legislature
made every voter a delegate to a dispersed ratification conven-
tion and handed them the authority to determine whether the
Constitution should be adopted or rejected.
As predicted, the Rhode Island voters overwhelmingly re-
jected the Constitution by a vote of 238 to 2,714.366 But the rejec-
tion by the people of Rhode Island was procedurally no differ-
ent from the rejection by North Carolina’s delegates in its 1788
convention. The ratification may have failed, but in each state
the legislature sanctioned the use of the new methodology de-
signed to obtain the consent of the people. Not one state re-
fused to participate in the new process on the premise that the
methodology set forth in Article XIII of the Articles of Confed-
eration should be employed.
It is beyond legitimate debate that Congress approved and
the state legislatures voted to implement the process outlined
in Article VII and the “Ratification and Transition” Resolution.
All thirteen state legislatures approved the implementation of
the new process by March 1st, 1788. The legal argument that all
thirteen legislatures approved the new process could not have
been raised until after this step had been approved by the thir-
teenth state. Before this date, arguments bolstered by political
philosophy and practical necessity were raised—and were all
that could be raised.
The chief example of such an argument is Federalist No. 40,
which was published on January 18th, 1788.367 As of this date,
only ten legislatures had approved the use of the new ratifica-
tion process. South Carolina approved the following day.368 But
364. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788),
reprinted in 24 DHRC, supra note 4, at 133, 133–34.
365. Id. at 133–34.
366. Report of Committee Counting Yeas and Nays Upon the New Constitution
(Apr. 3, 1788), reprinted in 24 DHRC, supra note 4, at 232, 233.
367.
See Publius, On the Powers of the Convention to Form a Mixed Government
Examined and Sustained, N.Y. PACKET, Jan. 18, 1788, reprinted in 20 DHRC, supra
note 4, at 629, 629 (THE FEDERALIST NO. 40 (James Madison)).
368. JAMESON, supra note 354, at 164.
116
Harvard Journal of Law & Public Policy
[Vol. 40
trolled both houses,” “[t]hey had . . . no intention of departing
from the prescribed way of considering the Constitution.”357
Like the others, the North Carolina legislature approved the
new method of ratification and held a ratification convention
for the Constitution.358
On January 19th, 1788, South Carolina approved the new
methodology,359 followed by New York on February 1st.360 Final-
ly, on March 1st the Rhode Island legislature took action.361
Rhode Island was by far the most antagonistic state toward the
Constitution. Many different approaches were considered.
Rhode Island had previously explained that its failure to partici-
pate in the Constitutional Convention was based on the fact that
the legislature had never been authorized by the people to send
delegates to a convention for such a purpose.362 Many critics of
Rhode Island, including the representatives from the more pop-
ulous cities in the state, contended that this argument was spe-
cious and was nothing more than a tactic to express opposition
to any move toward a stronger central government.363
In the end, the language adopted by the Rhode Island legisla-
ture was remarkably neutral in submitting the matter to the peo-
ple. After reciting the procedural history of the Constitutional
Convention, the legislature approved the following:
And whereas this Legislative Body, in General Assembly
convened, conceiving themselves Representatives of the
great Body of People at large, and that they cannot make any
Innovations in a Constitution which has been agreed upon,
and the Compact settled between the Governors and Gov-
erned, without the express Consent of the Freemen at large,
by their own Voices individually taken in Town-Meetings
assembled: Wherefore, for the Purpose aforesaid, and for
357. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION,
1787–1788, at 403 (2010).
358. JAMESON, supra note 354, at 163.
359. Id. at 164.
360. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 703–07.
361. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788),
reprinted in 24 DHRC, supra note 4, at 133, 133–35.
362. Letter from the Rhode Island General Assembly to the President of Con-
gress, Newport (Sept. 15, 1787), reprinted in 24 DHRC, supra note 4, at 19, 19–21.
363. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–23.
No. 1]
Defying Conventional Wisdom 117
submitting the said Constitution for the United States to the
Consideration of the Freemen of this State.364
The Freemen were tasked with the duty to “deliberate upon,
and determine . . . . whether the said Constitution shall
adopted or negatived.”365 In effect, the Rhode Island legislature
made every voter a delegate to a dispersed ratification conven-
tion and handed them the authority to determine whether the
Constitution should be adopted or rejected.
As predicted, the Rhode Island voters overwhelmingly re
jected the Constitution by a vote of 238 to 2,714.366 But the rej
tion by the people of Rhode Island was procedurally no differ-
ent from the rejection by North Carolina’s delegates in its 1788
convention. The ratification may have failed, but in each state
the legislature sanctioned the use of the new methodology de-
signed to obtain the consent of the people. Not one state
fused to participate in the new process on the premise that the
methodology set forth in Article XIII of the Articles of Confed-
eration should be employed.
It is beyond legitimate debate that Congress approved and
the state legislatures voted to implement the process outlined
in Article VII and the “Ratification and Transition” Resolution.
All thirteen state legislatures approved the implementation
the new process by March 1st, 1788. The legal argument that a
thirteen legislatures approved the new process could not have
been raised until after this step had been approved by the th
teenth state. Before this date, arguments bolstered by political
philosophy and practical necessity were raised—and were all
that could be raised.
The chief example of such an argument is Federalist No. 40
which was published on January 18th, 1788.367 As of this dat
only ten legislatures had approved the use of the new ratifi
tion process. South Carolina approved the following day.368 But
364. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788)
reprinted in 24 DHRC, supra note 4, at 133, 133–34.
365. Id. at 133–34.
366. Report of Committee Counting Yeas and Nays Upon the New Constitution
(Apr. 3, 1788), reprinted in 24 DHRC, supra note 4, at 232, 233.
367.
See Publius, On the Powers of the Convention to Form a Mixed Government
Examined and Sustained, N.Y. PACKET, Jan. 18, 1788, reprinted in 20 DHRC, su
note 4, at 629, 629 (THE FEDERALIST NO. 40 (James Madison)).
368. JAMESON, supra note 354, at 164.
121
116
Harvard Journal of Law & Public Policy
[Vol. 40
trolled both houses,” “[t]hey had . . . no intention of departing
from the prescribed way of considering the Constitution.”357
Like the others, the North Carolina legislature approved the
new method of ratification and held a ratification convention
for the Constitution.358
On January 19th, 1788, South Carolina approved the new
methodology,359 followed by New York on February 1st.360 Final-
ly, on March 1st the Rhode Island legislature took action.361
Rhode Island was by far the most antagonistic state toward the
Constitution. Many different approaches were considered.
Rhode Island had previously explained that its failure to partici-
pate in the Constitutional Convention was based on the fact that
the legislature had never been authorized by the people to send
delegates to a convention for such a purpose.362 Many critics of
Rhode Island, including the representatives from the more pop-
ulous cities in the state, contended that this argument was spe-
cious and was nothing more than a tactic to express opposition
to any move toward a stronger central government.363
In the end, the language adopted by the Rhode Island legisla-
ture was remarkably neutral in submitting the matter to the peo-
ple. After reciting the procedural history of the Constitutional
Convention, the legislature approved the following:
And whereas this Legislative Body, in General Assembly
convened, conceiving themselves Representatives of the
great Body of People at large, and that they cannot make any
Innovations in a Constitution which has been agreed upon,
and the Compact settled between the Governors and Gov-
erned, without the express Consent of the Freemen at large,
by their own Voices individually taken in Town-Meetings
assembled: Wherefore, for the Purpose aforesaid, and for
357. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION,
1787–1788, at 403 (2010).
358. JAMESON, supra note 354, at 163.
359. Id. at 164.
360. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 703–07.
361. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788),
reprinted in 24 DHRC, supra note 4, at 133, 133–35.
362. Letter from the Rhode Island General Assembly to the President of Con-
gress, Newport (Sept. 15, 1787), reprinted in 24 DHRC, supra note 4, at 19, 19–21.
363. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–23.
No. 1]
Defying Conventional Wisdom 117
submitting the said Constitution for the United States to the
Consideration of the Freemen of this State.364
The Freemen were tasked with the duty to “deliberate upon,
and determine . . . . whether the said Constitution shall be
adopted or negatived.”365 In effect, the Rhode Island legislature
made every voter a delegate to a dispersed ratification conven-
tion and handed them the authority to determine whether the
Constitution should be adopted or rejected.
As predicted, the Rhode Island voters overwhelmingly re-
jected the Constitution by a vote of 238 to 2,714.366 But the rejec-
tion by the people of Rhode Island was procedurally no differ-
ent from the rejection by North Carolina’s delegates in its 1788
convention. The ratification may have failed, but in each state
the legislature sanctioned the use of the new methodology de-
signed to obtain the consent of the people. Not one state re-
fused to participate in the new process on the premise that the
methodology set forth in Article XIII of the Articles of Confed-
eration should be employed.
It is beyond legitimate debate that Congress approved and
the state legislatures voted to implement the process outlined
in Article VII and the “Ratification and Transition” Resolution.
All thirteen state legislatures approved the implementation of
the new process by March 1st, 1788. The legal argument that all
thirteen legislatures approved the new process could not have
been raised until after this step had been approved by the thir-
teenth state. Before this date, arguments bolstered by political
philosophy and practical necessity were raised—and were all
that could be raised.
The chief example of such an argument is Federalist No. 40,
which was published on January 18th, 1788.367 As of this date,
only ten legislatures had approved the use of the new ratifica-
tion process. South Carolina approved the following day.368 But
364. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788),
reprinted in 24 DHRC, supra note 4, at 133, 133–34.
365. Id. at 133–34.
366. Report of Committee Counting Yeas and Nays Upon the New Constitution
(Apr. 3, 1788), reprinted in 24 DHRC, supra note 4, at 232, 233.
367.
See Publius, On the Powers of the Convention to Form a Mixed Government
Examined and Sustained, N.Y. PACKET, Jan. 18, 1788, reprinted in 20 DHRC, supra
note 4, at 629, 629 (THE FEDERALIST NO. 40 (James Madison)).
368. JAMESON, supra note 354, at 164.
116
Harvard Journal of Law & Public Policy
[Vol. 40
trolled both houses,” “[t]hey had . . . no intention of departing
from the prescribed way of considering the Constitution.”357
Like the others, the North Carolina legislature approved the
new method of ratification and held a ratification convention
for the Constitution.358
On January 19th, 1788, South Carolina approved the new
methodology,359 followed by New York on February 1st.360 Final-
ly, on March 1st the Rhode Island legislature took action.361
Rhode Island was by far the most antagonistic state toward the
Constitution. Many different approaches were considered.
Rhode Island had previously explained that its failure to partici-
pate in the Constitutional Convention was based on the fact that
the legislature had never been authorized by the people to send
delegates to a convention for such a purpose.362 Many critics of
Rhode Island, including the representatives from the more pop-
ulous cities in the state, contended that this argument was spe-
cious and was nothing more than a tactic to express opposition
to any move toward a stronger central government.363
In the end, the language adopted by the Rhode Island legisla-
ture was remarkably neutral in submitting the matter to the peo-
ple. After reciting the procedural history of the Constitutional
Convention, the legislature approved the following:
And whereas this Legislative Body, in General Assembly
convened, conceiving themselves Representatives of the
great Body of People at large, and that they cannot make any
Innovations in a Constitution which has been agreed upon,
and the Compact settled between the Governors and Gov-
erned, without the express Consent of the Freemen at large,
by their own Voices individually taken in Town-Meetings
assembled: Wherefore, for the Purpose aforesaid, and for
357. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION,
1787–1788, at 403 (2010).
358. JAMESON, supra note 354, at 163.
359. Id. at 164.
360. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 703–07.
361. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788),
reprinted in 24 DHRC, supra note 4, at 133, 133–35.
362. Letter from the Rhode Island General Assembly to the President of Con-
gress, Newport (Sept. 15, 1787), reprinted in 24 DHRC, supra note 4, at 19, 19–21.
363. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–23.
No. 1]
Defying Conventional Wisdom 117
submitting the said Constitution for the United States to the
Consideration of the Freemen of this State.364
The Freemen were tasked with the duty to “deliberate upon,
and determine . . . . whether the said Constitution shall
adopted or negatived.”365 In effect, the Rhode Island legislature
made every voter a delegate to a dispersed ratification conven-
tion and handed them the authority to determine whether the
Constitution should be adopted or rejected.
As predicted, the Rhode Island voters overwhelmingly re
jected the Constitution by a vote of 238 to 2,714.366 But the rej
tion by the people of Rhode Island was procedurally no differ-
ent from the rejection by North Carolina’s delegates in its 1788
convention. The ratification may have failed, but in each state
the legislature sanctioned the use of the new methodology de-
signed to obtain the consent of the people. Not one state
fused to participate in the new process on the premise that the
methodology set forth in Article XIII of the Articles of Confed-
eration should be employed.
It is beyond legitimate debate that Congress approved and
the state legislatures voted to implement the process outlined
in Article VII and the “Ratification and Transition” Resolution.
All thirteen state legislatures approved the implementation
the new process by March 1st, 1788. The legal argument that a
thirteen legislatures approved the new process could not have
been raised until after this step had been approved by the th
teenth state. Before this date, arguments bolstered by political
philosophy and practical necessity were raised—and were all
that could be raised.
The chief example of such an argument is Federalist No. 40
which was published on January 18th, 1788.367 As of this dat
only ten legislatures had approved the use of the new ratifi
tion process. South Carolina approved the following day.368 But
364. Rhode Island Act Calling a Referendum on the Constitution (Mar. 1, 1788)
reprinted in 24 DHRC, supra note 4, at 133, 133–34.
365. Id. at 133–34.
366. Report of Committee Counting Yeas and Nays Upon the New Constitution
(Apr. 3, 1788), reprinted in 24 DHRC, supra note 4, at 232, 233.
367.
See Publius, On the Powers of the Convention to Form a Mixed Government
Examined and Sustained, N.Y. PACKET, Jan. 18, 1788, reprinted in 20 DHRC, su
note 4, at 629, 629 (THE FEDERALIST NO. 40 (James Madison)).
368. JAMESON, supra note 354, at 164.
122
118
Harvard Journal of Law & Public Policy
[Vol. 40
the big prize was New York, where it was far from certain as to
whether the legislature would approve the process and call a
convention. On February 1st, by a vote of 27 to 25, the New
York legislature rejected a motion to condemn the Convention
for violating its instructions.369 Immediately thereafter, the New
York legislature approved the new process and called for the
convening of its ratification convention.370
Madison made the defense that was available to him as of
January 18th—a political and moral justification for ratifying
the Constitution by the authority of the people.371 The legal ar-
gument based on the approval of the new process by all thir-
teen legislatures was simply not available to Madison because
he wrote in the midst of the fray before all steps were complet-
ed. But in hindsight we have the benefit of knowing how
events unfolded and are entitled to reconsider the legal ques-
tions in light of the totality of the record. Forty-one days after
Madison published Federalist No. 40, all thirteen state legisla-
tures had approved the new process.
Well prior to the date when the Constitution came into force
(June 21st, 1788, upon New Hampshire’s ratification), Congress
and all thirteen state legislatures had approved the methodolo-
gy for ratification of the new form of government. Whatever
legal questions would have arisen if only twelve legislatures
had approved or if the approval was subsequent to Constitu-
tion entering into force are speculative and moot. It did not
happen that way. It is probable that the Founders would have
adopted the Constitution even if the legal processes had not
fallen neatly into place. But we do not judge the legality of the
process on the basis of what might have happened, but on the
basis of the complete record of what actually transpired.
369. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 704.
370.
Id. at 704–07.
371.
See THE FEDERALIST NO. 40 (James Madison).
No. 1]
Defying Conventional Wisdom 119
III. MOST MODERN SCHOLARSHIP FAILS TO CONSIDER THE
ACTUAL PROCESS EMPLOYED IN ADOPTING THE
CONSTITUTION
A. Most Scholarly References to the Legality of the Adoption of the
Constitution are Superficial and Conclusory
No legal scholar should conclude that the Constitution
was drafted by an illegal runaway convention without at
least asking themselves a few questions: What is the evi-
dence for this conclusion? Did the Framers of the Constitu-
tion defend the propriety of their action? What is revealed
by the relevant documents?
If one simply asks the second question, any reasonable scholar
should think to consider the Federalist Papers to see if there is any
defense of the legitimacy of the Constitutional Convention. Feder-
alist No. 40’s first sentence alerts the reader to its central subject:
“THE second point to be examined is, whether the convention
were authorized to frame and propose this mixed Constitu-
tion.”372 Madison clearly defended the legitimacy of the delegates’
actions. This defense puts every scholar on notice that one cannot
simply assume that the delegates knowingly violated their in-
structions without some examination of the historical evidence.
There are dozens of “scholarly” references to the origins and
legitimacy of the Constitutional Convention that fail even this
rudimentary “standard of care” for scholarship. Law review
authors and editors alike bear responsibility for the naked as-
sertions and plain errors that have marked numerous refer-
ences to the Philadelphia Convention. Even if a scholar ulti-
mately determines that the Anti-Federalist attacks on the
legitimacy of the Convention were accurate, there is a clear du-
ty to point to the fact that James Madison, John Marshall, and
many others, who are normally considered authorities with
substantial credibility, took the opposite view. Academic integ-
rity demands at least this much.
Law reviews are littered with the naked assertion that Con-
gress called the Convention for the “sole and express purpose of
amending the Articles of Confederation” and that the Conven-
tion went beyond its authority by creating a whole new docu-
372.
Id. at 247 (Clinton Rossiter ed., 1961).
118
Harvard Journal of Law & Public Policy
[Vol. 40
the big prize was New York, where it was far from certain as to
whether the legislature would approve the process and call a
convention. On February 1st, by a vote of 27 to 25, the New
York legislature rejected a motion to condemn the Convention
for violating its instructions.369 Immediately thereafter, the New
York legislature approved the new process and called for the
convening of its ratification convention.370
Madison made the defense that was available to him as of
January 18th—a political and moral justification for ratifying
the Constitution by the authority of the people.371 The legal ar-
gument based on the approval of the new process by all thir-
teen legislatures was simply not available to Madison because
he wrote in the midst of the fray before all steps were complet-
ed. But in hindsight we have the benefit of knowing how
events unfolded and are entitled to reconsider the legal ques-
tions in light of the totality of the record. Forty-one days after
Madison published Federalist No. 40, all thirteen state legisla-
tures had approved the new process.
Well prior to the date when the Constitution came into force
(June 21st, 1788, upon New Hampshire’s ratification), Congress
and all thirteen state legislatures had approved the methodolo-
gy for ratification of the new form of government. Whatever
legal questions would have arisen if only twelve legislatures
had approved or if the approval was subsequent to Constitu-
tion entering into force are speculative and moot. It did not
happen that way. It is probable that the Founders would have
adopted the Constitution even if the legal processes had not
fallen neatly into place. But we do not judge the legality of the
process on the basis of what might have happened, but on the
basis of the complete record of what actually transpired.
369. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 704.
370.
Id. at 704–07.
371.
See THE FEDERALIST NO. 40 (James Madison).
No. 1]
Defying Conventional Wisdom 119
III. MOST MODERN SCHOLARSHIP FAILS TO CONSIDER THE
ACTUAL PROCESS EMPLOYED IN ADOPTING THE
CONSTITUTION
A. Most Scholarly References to the Legality of the Adoption of the
Constitution are Superficial and Conclusory
No legal scholar should conclude that the Constituti
was drafted by an illegal runaway convention without at
least asking themselves a few questions: What is the evi-
dence for this conclusion? Did the Framers of the Constit
tion defend the propriety of their action? What is reveal
by the relevant documents?
If one simply asks the second question, any reasonable schol
should think to consider the Federalist Papers to see if there is any
defense of the legitimacy of the Constitutional Convention. Fede
alist No. 40’s first sentence alerts the reader to its central subje
“THE second point to be examined is, whether the conventi
were authorized to frame and propose this mixed Constitu-
tion.”372 Madison clearly defended the legitimacy of the delegates’
actions. This defense puts every scholar on notice that one canno
simply assume that the delegates knowingly violated their
structions without some examination of the historical evidence.
There are dozens of “scholarly” references to the origins and
legitimacy of the Constitutional Convention that fail even this
rudimentary “standard of care” for scholarship. Law review
authors and editors alike bear responsibility for the naked as-
sertions and plain errors that have marked numerous refer-
ences to the Philadelphia Convention. Even if a scholar ulti-
mately determines that the Anti-Federalist attacks on the
legitimacy of the Convention were accurate, there is a clear du-
ty to point to the fact that James Madison, John Marshall, and
many others, who are normally considered authorities with
substantial credibility, took the opposite view. Academic integ-
rity demands at least this much.
Law reviews are littered with the naked assertion that C
gress called the Convention for the “sole and express purpose
amending the Articles of Confederation” and that the Conven-
tion went beyond its authority by creating a whole new doc
372.
Id. at 247 (Clinton Rossiter ed., 1961).
123
118
Harvard Journal of Law & Public Policy
[Vol. 40
the big prize was New York, where it was far from certain as to
whether the legislature would approve the process and call a
convention. On February 1st, by a vote of 27 to 25, the New
York legislature rejected a motion to condemn the Convention
for violating its instructions.369 Immediately thereafter, the New
York legislature approved the new process and called for the
convening of its ratification convention.370
Madison made the defense that was available to him as of
January 18th—a political and moral justification for ratifying
the Constitution by the authority of the people.371 The legal ar-
gument based on the approval of the new process by all thir-
teen legislatures was simply not available to Madison because
he wrote in the midst of the fray before all steps were complet-
ed. But in hindsight we have the benefit of knowing how
events unfolded and are entitled to reconsider the legal ques-
tions in light of the totality of the record. Forty-one days after
Madison published Federalist No. 40, all thirteen state legisla-
tures had approved the new process.
Well prior to the date when the Constitution came into force
(June 21st, 1788, upon New Hampshire’s ratification), Congress
and all thirteen state legislatures had approved the methodolo-
gy for ratification of the new form of government. Whatever
legal questions would have arisen if only twelve legislatures
had approved or if the approval was subsequent to Constitu-
tion entering into force are speculative and moot. It did not
happen that way. It is probable that the Founders would have
adopted the Constitution even if the legal processes had not
fallen neatly into place. But we do not judge the legality of the
process on the basis of what might have happened, but on the
basis of the complete record of what actually transpired.
369. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 704.
370.
Id. at 704–07.
371.
See THE FEDERALIST NO. 40 (James Madison).
No. 1]
Defying Conventional Wisdom 119
III. MOST MODERN SCHOLARSHIP FAILS TO CONSIDER THE
ACTUAL PROCESS EMPLOYED IN ADOPTING THE
CONSTITUTION
A. Most Scholarly References to the Legality of the Adoption of the
Constitution are Superficial and Conclusory
No legal scholar should conclude that the Constitution
was drafted by an illegal runaway convention without at
least asking themselves a few questions: What is the evi-
dence for this conclusion? Did the Framers of the Constitu-
tion defend the propriety of their action? What is revealed
by the relevant documents?
If one simply asks the second question, any reasonable scholar
should think to consider the Federalist Papers to see if there is any
defense of the legitimacy of the Constitutional Convention. Feder-
alist No. 40’s first sentence alerts the reader to its central subject:
“THE second point to be examined is, whether the convention
were authorized to frame and propose this mixed Constitu-
tion.”372 Madison clearly defended the legitimacy of the delegates’
actions. This defense puts every scholar on notice that one cannot
simply assume that the delegates knowingly violated their in-
structions without some examination of the historical evidence.
There are dozens of “scholarly” references to the origins and
legitimacy of the Constitutional Convention that fail even this
rudimentary “standard of care” for scholarship. Law review
authors and editors alike bear responsibility for the naked as-
sertions and plain errors that have marked numerous refer-
ences to the Philadelphia Convention. Even if a scholar ulti-
mately determines that the Anti-Federalist attacks on the
legitimacy of the Convention were accurate, there is a clear du-
ty to point to the fact that James Madison, John Marshall, and
many others, who are normally considered authorities with
substantial credibility, took the opposite view. Academic integ-
rity demands at least this much.
Law reviews are littered with the naked assertion that Con-
gress called the Convention for the “sole and express purpose of
amending the Articles of Confederation” and that the Conven-
tion went beyond its authority by creating a whole new docu-
372.
Id. at 247 (Clinton Rossiter ed., 1961).
118
Harvard Journal of Law & Public Policy
[Vol. 40
the big prize was New York, where it was far from certain as to
whether the legislature would approve the process and call a
convention. On February 1st, by a vote of 27 to 25, the New
York legislature rejected a motion to condemn the Convention
for violating its instructions.369 Immediately thereafter, the New
York legislature approved the new process and called for the
convening of its ratification convention.370
Madison made the defense that was available to him as of
January 18th—a political and moral justification for ratifying
the Constitution by the authority of the people.371 The legal ar-
gument based on the approval of the new process by all thir-
teen legislatures was simply not available to Madison because
he wrote in the midst of the fray before all steps were complet-
ed. But in hindsight we have the benefit of knowing how
events unfolded and are entitled to reconsider the legal ques-
tions in light of the totality of the record. Forty-one days after
Madison published Federalist No. 40, all thirteen state legisla-
tures had approved the new process.
Well prior to the date when the Constitution came into force
(June 21st, 1788, upon New Hampshire’s ratification), Congress
and all thirteen state legislatures had approved the methodolo-
gy for ratification of the new form of government. Whatever
legal questions would have arisen if only twelve legislatures
had approved or if the approval was subsequent to Constitu-
tion entering into force are speculative and moot. It did not
happen that way. It is probable that the Founders would have
adopted the Constitution even if the legal processes had not
fallen neatly into place. But we do not judge the legality of the
process on the basis of what might have happened, but on the
basis of the complete record of what actually transpired.
369. Assembly Proceedings (Jan. 31, 1788), reprinted in 20 DHRC, supra note 4, at
703, 704.
370.
Id. at 704–07.
371.
See THE FEDERALIST NO. 40 (James Madison).
No. 1]
Defying Conventional Wisdom 119
III. MOST MODERN SCHOLARSHIP FAILS TO CONSIDER THE
ACTUAL PROCESS EMPLOYED IN ADOPTING THE
CONSTITUTION
A. Most Scholarly References to the Legality of the Adoption of the
Constitution are Superficial and Conclusory
No legal scholar should conclude that the Constituti
was drafted by an illegal runaway convention without at
least asking themselves a few questions: What is the evi-
dence for this conclusion? Did the Framers of the Constit
tion defend the propriety of their action? What is reveal
by the relevant documents?
If one simply asks the second question, any reasonable schol
should think to consider the Federalist Papers to see if there is any
defense of the legitimacy of the Constitutional Convention. Fede
alist No. 40’s first sentence alerts the reader to its central subje
“THE second point to be examined is, whether the conventi
were authorized to frame and propose this mixed Constitu-
tion.”372 Madison clearly defended the legitimacy of the delegates’
actions. This defense puts every scholar on notice that one canno
simply assume that the delegates knowingly violated their
structions without some examination of the historical evidence.
There are dozens of “scholarly” references to the origins and
legitimacy of the Constitutional Convention that fail even this
rudimentary “standard of care” for scholarship. Law review
authors and editors alike bear responsibility for the naked as-
sertions and plain errors that have marked numerous refer-
ences to the Philadelphia Convention. Even if a scholar ulti-
mately determines that the Anti-Federalist attacks on the
legitimacy of the Convention were accurate, there is a clear du-
ty to point to the fact that James Madison, John Marshall, and
many others, who are normally considered authorities with
substantial credibility, took the opposite view. Academic integ-
rity demands at least this much.
Law reviews are littered with the naked assertion that C
gress called the Convention for the “sole and express purpose
amending the Articles of Confederation” and that the Conven-
tion went beyond its authority by creating a whole new doc
372.
Id. at 247 (Clinton Rossiter ed., 1961).
124
120
Harvard Journal of Law & Public Policy
[Vol. 40
ment.373 Scholarly writers have not been satisfied with merely
repeating this perfunctory canard and many have made asser-
tions concerning the Constitutional Convention that are objec-
tively false by any measure.374 Two articles state that the Annap-
373. See, e.g., Warren E. Burger, Foreword, 56 GEO. WASH. L. REV. 1 (1987); Robert
C. Byrd, Remarks by U.S. Senator Robert C. Byrd: The Constitution in Peril, 101 W. VA.
L. REV. 385, 388 (1998) (reciting that “the Framers went beyond the purposes for
which Congress had called the convention”); Stewart Dalzell & Eric J. Beste, Is the
Twenty-Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 545
(1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13, 20–25, n.45
(1995) (“The Continental Congress’s charge to the Convention was far narrower
than the work the Convention undertook from the beginning”); Richard S. Kay,
Constituent Authority, 59 AM. J. COMP. L. 715, 728 (2011) (claiming that the Conven-
tion “grossly exceeded” the charge given to it by the “Continental Congress”);
Lash, supra note 15, at 523 (“The Philadelphia Convention ignored that mandate
and drafted an entirely new Constitution.”); Misha Tseytlin, Note, The United
States Senate and the Problem of Equal State Suffrage, 94 GEO. L.J. 859, 869–70 (2006)
(“[T]he delegates decided to deviate from these instructions . . . .”); Benjamin A.
Geslison, What Were They Thinking? Examining the Intellectual Inspirations of the
Framers and Opponents of the United States Constitution, 17 TEX. REV. L. & POL. 185,
193 (2012) (reviewing FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTEL-
LECTUAL
ORIGINS OF THE CONSTITUTION (1985) and HERBERT J. STORING, WHAT
THE
ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF
THE
CONSTITUTION (1981)) (The Anti-Federalists “argued persuasively that the
Constitution was an illegal act completely unauthorized by the Convention”); see
also Robert F. Blomquist, Response to Geoffrey R. Stone and Seth Barrett Tillman, Be-
yond Historical Blushing: A Plea for Constitutional Intelligence, 2009 CARDOZO L. REV.
DE NOVO
244, 245; Jason A. Crook, Toward A More “Perfect” Union: The Untimely
Decline of Federalism and the Rise of the Homogenous Political Culture, 34 U. DAYTON
L. REV. 47, 50 (2008); Godbold, supra note 15, at 314; Kane, supra note 12, at 160;
Maggs, supra note 5, at 1710–12; Denys P. Myers, History of the Printed Archetype of
the Constitution of the United States of America, 11 GREEN BAG 2d 217, 219–20 (2008);
Smith, supra note 15, at 539–41; Edward C. Walterscheid, The Nature of the Intellec-
tual Property Clause: A Study in Historical Perspective (Part 1), 83 J. PAT. & TRADE-
MARK
OFF. SOC’Y 763, 790 (2001); Susan Henderson-Utis, Comment, What Would
the Founding Fathers Do? The Rise of Religious Programs in the United States Prison
System, 52 HOW. L.J. 459, 506 (2009); Jonker, supra note 15, at 453–54; David Kow-
alski, Comment, Red State, Blue State, No State?: Examining the Existence of A Con-
gressional Power to Remove A State, 84 U. DET. MERCY L. REV. 335, 343–45 (2007).
374. See, e.g., Dennis M. Cariello, Federalism for the New Millennium: Accounting
for the Values of Federalism, 26 FORDHAM URB. L.J. 1493, 1528 (1999); John Cornyn,
The Roots of the Texas Constitution: Settlement to Statehood, 26 TEX. TECH L. REV.
1089, 1094–95 (1995); Robert L. Jones, Lessons from a Lost Constitution: The Council of
Revision, the Bill of Rights, and the Role of the Judiciary in Democratic Governance, 27
J.L. & POL. 459, 555 (2012); James Leonard, Ubi Remedium Ibi Jus, or, Where There’s a
Remedy, There’s a Right: A Skeptic’s Critique of Ex Parte Young, 54 SYRACUSE L. REV.
215, 367 (2004); Michael B. Rappaport, The Constitutionality of a Limited Convention:
An Originalist Analysis, 28 CONST. COMMENT. 53, 67–68 (2012); Richard D. Rosen,
Funding “Non-Traditional” Military Operations: The Alluring Myth of A Presidential
Power of the Purse, 155 MIL. L. REV. 1, 152 (1998); Louis Michael Seidman, The Secret
No. 1]
Defying Conventional Wisdom 121
olis Convention “asked Congress to call a convention.”375 The
Annapolis delegates did no such thing. A copy was submitted to
Congress out of mere respect with no request for action.376 The
Maine article reproduced a speech by a federal judge that
claimed that the five-month gap between the “request” from
Annapolis and the “call” from Congress arose because Congress
could not convene a quorum377—a claim that is belied by hun-
dreds of pages of congressional records in this time frame.378
Another writer, a bankruptcy judge, claimed: “The Federalists
did not really refute the charge that the delegates to the Conven-
tion had exceeded the authority given them by their states.”379 His
only citation for this proposition is the text of Article VII of the
Constitution.380 Ironically, this author’s next paragraph cites John
Marshall on the legitimacy of the ratification process.381 However,
he ignores Marshall’s statement in defense of the Convention that
“the Convention did not exceed their powers.”382
Colonel Richard D. Rosen claims that “[t]he Convention also
did not bother, as the Continental Congress had directed, to
return to Congress for its approval upon completing its
work.”383 We have already reviewed in detail the debates in the
Confederation Congress after it received the Constitution from
Philadelphia. Even Chief Justice Burger, who asserted that the
History of American Constitutional Skepticism: A Recovery and Preliminary Evaluation,
17 U. PA. J. CONST. L. 1, 12–14 (2014); Lynn D. Wardle, The Proposed Federal Mar-
riage Amendment and the Risks to Federalism in Family Law, 2 U. ST. THOMAS L.J. 137,
198 (2004); Lynn D. Wardle, “Time Enough”: Webster v. Reproductive Health Services
and the Prudent Pace of Justice, 41 FLA. L. REV. 881, 938 n.308 (1989); Bruce Stein,
Note, The Framers’ Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413,
428–29 (1982).
375. George Anastaplo, The Constitution at Two Hundred: Explorations, 22 TEX.
TECH L. REV. 967, 969–70 (1991); Daniel Wathen & Barbara Riegelhaupt, The
Speeches of Frank M. Coffin: A Sideline to Judging, 63 ME. L. REV. 467, 472 (2011)
(quoting speech of Judge Frank M. Coffin).
376. 1 ELLIOT’S DEBATES, supra note 23, at 118.
377. Wathen & Riegelhaupt, supra note 375, at 472 (quoting speech of Judge
Frank M. Coffin).
378. 24 JOURNALS OF CONGRESS, supra note 70, at 261–62.
379. Randolph J. Haines, The Uniformity Power: Why Bankruptcy Is Different, 77
AM. BANKR. L.J. 129, 147 (2003).
380. Id.
381. Id.
382. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
383. Rosen, supra note 374, at 66 n.367.
120
Harvard Journal of Law & Public Policy
[Vol. 40
ment.373 Scholarly writers have not been satisfied with merely
repeating this perfunctory canard and many have made asser-
tions concerning the Constitutional Convention that are objec-
tively false by any measure.374 Two articles state that the Annap-
373. See, e.g., Warren E. Burger, Foreword, 56 GEO. WASH. L. REV. 1 (1987); Robert
C. Byrd, Remarks by U.S. Senator Robert C. Byrd: The Constitution in Peril, 101 W. VA.
L. REV. 385, 388 (1998) (reciting that “the Framers went beyond the purposes for
which Congress had called the convention”); Stewart Dalzell & Eric J. Beste, Is the
Twenty-Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 545
(1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13, 20–25, n.45
(1995) (“The Continental Congress’s charge to the Convention was far narrower
than the work the Convention undertook from the beginning”); Richard S. Kay,
Constituent Authority, 59 AM. J. COMP. L. 715, 728 (2011) (claiming that the Conven-
tion “grossly exceeded” the charge given to it by the “Continental Congress”);
Lash, supra note 15, at 523 (“The Philadelphia Convention ignored that mandate
and drafted an entirely new Constitution.”); Misha Tseytlin, Note, The United
States Senate and the Problem of Equal State Suffrage, 94 GEO. L.J. 859, 869–70 (2006)
(“[T]he delegates decided to deviate from these instructions . . . .”); Benjamin A.
Geslison, What Were They Thinking? Examining the Intellectual Inspirations of the
Framers and Opponents of the United States Constitution, 17 TEX. REV. L. & POL. 185,
193 (2012) (reviewing FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTEL-
LECTUAL
ORIGINS OF THE CONSTITUTION (1985) and HERBERT J. STORING, WHAT
THE
ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF
THE
CONSTITUTION (1981)) (The Anti-Federalists “argued persuasively that the
Constitution was an illegal act completely unauthorized by the Convention”); see
also Robert F. Blomquist, Response to Geoffrey R. Stone and Seth Barrett Tillman, Be-
yond Historical Blushing: A Plea for Constitutional Intelligence, 2009 CARDOZO L. REV.
DE NOVO
244, 245; Jason A. Crook, Toward A More “Perfect” Union: The Untimely
Decline of Federalism and the Rise of the Homogenous Political Culture, 34 U. DAYTON
L. REV. 47, 50 (2008); Godbold, supra note 15, at 314; Kane, supra note 12, at 160;
Maggs, supra note 5, at 1710–12; Denys P. Myers, History of the Printed Archetype of
the Constitution of the United States of America, 11 GREEN BAG 2d 217, 219–20 (2008);
Smith, supra note 15, at 539–41; Edward C. Walterscheid, The Nature of the Intellec-
tual Property Clause: A Study in Historical Perspective (Part 1), 83 J. PAT. & TRADE-
MARK
OFF. SOC’Y 763, 790 (2001); Susan Henderson-Utis, Comment, What Would
the Founding Fathers Do? The Rise of Religious Programs in the United States Prison
System, 52 HOW. L.J. 459, 506 (2009); Jonker, supra note 15, at 453–54; David Kow-
alski, Comment, Red State, Blue State, No State?: Examining the Existence of A Con-
gressional Power to Remove A State, 84 U. DET. MERCY L. REV. 335, 343–45 (2007).
374. See, e.g., Dennis M. Cariello, Federalism for the New Millennium: Accounting
for the Values of Federalism, 26 FORDHAM URB. L.J. 1493, 1528 (1999); John Cornyn,
The Roots of the Texas Constitution: Settlement to Statehood, 26 TEX. TECH L. REV.
1089, 1094–95 (1995); Robert L. Jones, Lessons from a Lost Constitution: The Council of
Revision, the Bill of Rights, and the Role of the Judiciary in Democratic Governance, 27
J.L. & POL. 459, 555 (2012); James Leonard, Ubi Remedium Ibi Jus, or, Where There’s a
Remedy, There’s a Right: A Skeptic’s Critique of Ex Parte Young, 54 SYRACUSE L. REV.
215, 367 (2004); Michael B. Rappaport, The Constitutionality of a Limited Convention:
An Originalist Analysis, 28 CONST. COMMENT. 53, 67–68 (2012); Richard D. Rosen,
Funding “Non-Traditional” Military Operations: The Alluring Myth of A Presidential
Power of the Purse, 155 MIL. L. REV. 1, 152 (1998); Louis Michael Seidman, The Secret
No. 1]
Defying Conventional Wisdom 121
olis Convention “asked Congress to call a convention.”375 The
Annapolis delegates did no such thing. A copy was submitted
Congress out of mere respect with no request for action.376 T
Maine article reproduced a speech by a federal judge th
claimed that the five-month gap between the “request” fro
Annapolis and the “call” from Congress arose because Congr
could not convene a quorum377—a claim that is belied by hu
dreds of pages of congressional records in this time frame.378
Another writer, a bankruptcy judge, claimed: “The Federalis
did not really refute the charge that the delegates to the Conven-
tion had exceeded the authority given them by their states.”379 H
only citation for this proposition is the text of Article VII of the
Constitution.380 Ironically, this author’s next paragraph cites Jo
Marshall on the legitimacy of the ratification process.381 However,
he ignores Marshall’s statement in defense of the Convention th
“the Convention did not exceed their powers.”382
Colonel Richard D. Rosen claims that “[t]he Convention also
did not bother, as the Continental Congress had directed, to
return to Congress for its approval upon completing its
work.”383 We have already reviewed in detail the debates in t
Confederation Congress after it received the Constitution from
Philadelphia. Even Chief Justice Burger, who asserted that the
History of American Constitutional Skepticism: A Recovery and Preliminary Evaluation
17 U. PA. J. CONST. L. 1, 12–14 (2014); Lynn D. Wardle, The Proposed Federal M
riage Amendment and the Risks to Federalism in Family Law, 2 U. ST. THOMAS L.J. 1
198 (2004); Lynn D. Wardle, “Time Enough”: Webster v. Reproductive Health Services
and the Prudent Pace of Justice, 41 FLA. L. REV. 881, 938 n.308 (1989); Bruce Ste
Note, The Framers’ Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413,
428–29 (1982).
375. George Anastaplo, The Constitution at Two Hundred: Explorations, 22 TEX
TECH L. REV. 967, 969–70 (1991); Daniel Wathen & Barbara Riegelhaupt, The
Speeches of Frank M. Coffin: A Sideline to Judging, 63 ME. L. REV. 467, 472 (20
(quoting speech of Judge Frank M. Coffin).
376. 1 ELLIOT’S DEBATES, supra note 23, at 118.
377. Wathen & Riegelhaupt, supra note 375, at 472 (quoting speech of Judge
Frank M. Coffin).
378. 24 JOURNALS OF CONGRESS, supra note 70, at 261–62.
379. Randolph J. Haines, The Uniformity Power: Why Bankruptcy Is Different, 77
AM. BANKR. L.J. 129, 147 (2003).
380. Id.
381. Id.
382. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
383. Rosen, supra note 374, at 66 n.367.
125
120
Harvard Journal of Law & Public Policy
[Vol. 40
ment.373 Scholarly writers have not been satisfied with merely
repeating this perfunctory canard and many have made asser-
tions concerning the Constitutional Convention that are objec-
tively false by any measure.374 Two articles state that the Annap-
373. See, e.g., Warren E. Burger, Foreword, 56 GEO. WASH. L. REV. 1 (1987); Robert
C. Byrd, Remarks by U.S. Senator Robert C. Byrd: The Constitution in Peril, 101 W. VA.
L. REV. 385, 388 (1998) (reciting that “the Framers went beyond the purposes for
which Congress had called the convention”); Stewart Dalzell & Eric J. Beste, Is the
Twenty-Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 545
(1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13, 20–25, n.45
(1995) (“The Continental Congress’s charge to the Convention was far narrower
than the work the Convention undertook from the beginning”); Richard S. Kay,
Constituent Authority, 59 AM. J. COMP. L. 715, 728 (2011) (claiming that the Conven-
tion “grossly exceeded” the charge given to it by the “Continental Congress”);
Lash, supra note 15, at 523 (“The Philadelphia Convention ignored that mandate
and drafted an entirely new Constitution.”); Misha Tseytlin, Note, The United
States Senate and the Problem of Equal State Suffrage, 94 GEO. L.J. 859, 869–70 (2006)
(“[T]he delegates decided to deviate from these instructions . . . .”); Benjamin A.
Geslison, What Were They Thinking? Examining the Intellectual Inspirations of the
Framers and Opponents of the United States Constitution, 17 TEX. REV. L. & POL. 185,
193 (2012) (reviewing FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTEL-
LECTUAL
ORIGINS OF THE CONSTITUTION (1985) and HERBERT J. STORING, WHAT
THE
ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF
THE
CONSTITUTION (1981)) (The Anti-Federalists “argued persuasively that the
Constitution was an illegal act completely unauthorized by the Convention”); see
also Robert F. Blomquist, Response to Geoffrey R. Stone and Seth Barrett Tillman, Be-
yond Historical Blushing: A Plea for Constitutional Intelligence, 2009 CARDOZO L. REV.
DE NOVO
244, 245; Jason A. Crook, Toward A More “Perfect” Union: The Untimely
Decline of Federalism and the Rise of the Homogenous Political Culture, 34 U. DAYTON
L. REV. 47, 50 (2008); Godbold, supra note 15, at 314; Kane, supra note 12, at 160;
Maggs, supra note 5, at 1710–12; Denys P. Myers, History of the Printed Archetype of
the Constitution of the United States of America, 11 GREEN BAG 2d 217, 219–20 (2008);
Smith, supra note 15, at 539–41; Edward C. Walterscheid, The Nature of the Intellec-
tual Property Clause: A Study in Historical Perspective (Part 1), 83 J. PAT. & TRADE-
MARK
OFF. SOC’Y 763, 790 (2001); Susan Henderson-Utis, Comment, What Would
the Founding Fathers Do? The Rise of Religious Programs in the United States Prison
System, 52 HOW. L.J. 459, 506 (2009); Jonker, supra note 15, at 453–54; David Kow-
alski, Comment, Red State, Blue State, No State?: Examining the Existence of A Con-
gressional Power to Remove A State, 84 U. DET. MERCY L. REV. 335, 343–45 (2007).
374. See, e.g., Dennis M. Cariello, Federalism for the New Millennium: Accounting
for the Values of Federalism, 26 FORDHAM URB. L.J. 1493, 1528 (1999); John Cornyn,
The Roots of the Texas Constitution: Settlement to Statehood, 26 TEX. TECH L. REV.
1089, 1094–95 (1995); Robert L. Jones, Lessons from a Lost Constitution: The Council of
Revision, the Bill of Rights, and the Role of the Judiciary in Democratic Governance, 27
J.L. & POL. 459, 555 (2012); James Leonard, Ubi Remedium Ibi Jus, or, Where There’s a
Remedy, There’s a Right: A Skeptic’s Critique of Ex Parte Young, 54 SYRACUSE L. REV.
215, 367 (2004); Michael B. Rappaport, The Constitutionality of a Limited Convention:
An Originalist Analysis, 28 CONST. COMMENT. 53, 67–68 (2012); Richard D. Rosen,
Funding “Non-Traditional” Military Operations: The Alluring Myth of A Presidential
Power of the Purse, 155 MIL. L. REV. 1, 152 (1998); Louis Michael Seidman, The Secret
No. 1]
Defying Conventional Wisdom 121
olis Convention “asked Congress to call a convention.”375 The
Annapolis delegates did no such thing. A copy was submitted to
Congress out of mere respect with no request for action.376 The
Maine article reproduced a speech by a federal judge that
claimed that the five-month gap between the “request” from
Annapolis and the “call” from Congress arose because Congress
could not convene a quorum377—a claim that is belied by hun-
dreds of pages of congressional records in this time frame.378
Another writer, a bankruptcy judge, claimed: “The Federalists
did not really refute the charge that the delegates to the Conven-
tion had exceeded the authority given them by their states.”379 His
only citation for this proposition is the text of Article VII of the
Constitution.380 Ironically, this author’s next paragraph cites John
Marshall on the legitimacy of the ratification process.381 However,
he ignores Marshall’s statement in defense of the Convention that
“the Convention did not exceed their powers.”382
Colonel Richard D. Rosen claims that “[t]he Convention also
did not bother, as the Continental Congress had directed, to
return to Congress for its approval upon completing its
work.”383 We have already reviewed in detail the debates in the
Confederation Congress after it received the Constitution from
Philadelphia. Even Chief Justice Burger, who asserted that the
History of American Constitutional Skepticism: A Recovery and Preliminary Evaluation,
17 U. PA. J. CONST. L. 1, 12–14 (2014); Lynn D. Wardle, The Proposed Federal Mar-
riage Amendment and the Risks to Federalism in Family Law, 2 U. ST. THOMAS L.J. 137,
198 (2004); Lynn D. Wardle, “Time Enough”: Webster v. Reproductive Health Services
and the Prudent Pace of Justice, 41 FLA. L. REV. 881, 938 n.308 (1989); Bruce Stein,
Note, The Framers’ Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413,
428–29 (1982).
375. George Anastaplo, The Constitution at Two Hundred: Explorations, 22 TEX.
TECH L. REV. 967, 969–70 (1991); Daniel Wathen & Barbara Riegelhaupt, The
Speeches of Frank M. Coffin: A Sideline to Judging, 63 ME. L. REV. 467, 472 (2011)
(quoting speech of Judge Frank M. Coffin).
376. 1 ELLIOT’S DEBATES, supra note 23, at 118.
377. Wathen & Riegelhaupt, supra note 375, at 472 (quoting speech of Judge
Frank M. Coffin).
378. 24 JOURNALS OF CONGRESS, supra note 70, at 261–62.
379. Randolph J. Haines, The Uniformity Power: Why Bankruptcy Is Different, 77
AM. BANKR. L.J. 129, 147 (2003).
380. Id.
381. Id.
382. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
383. Rosen, supra note 374, at 66 n.367.
120
Harvard Journal of Law & Public Policy
[Vol. 40
ment.373 Scholarly writers have not been satisfied with merely
repeating this perfunctory canard and many have made asser-
tions concerning the Constitutional Convention that are objec-
tively false by any measure.374 Two articles state that the Annap-
373. See, e.g., Warren E. Burger, Foreword, 56 GEO. WASH. L. REV. 1 (1987); Robert
C. Byrd, Remarks by U.S. Senator Robert C. Byrd: The Constitution in Peril, 101 W. VA.
L. REV. 385, 388 (1998) (reciting that “the Framers went beyond the purposes for
which Congress had called the convention”); Stewart Dalzell & Eric J. Beste, Is the
Twenty-Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 545
(1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13, 20–25, n.45
(1995) (“The Continental Congress’s charge to the Convention was far narrower
than the work the Convention undertook from the beginning”); Richard S. Kay,
Constituent Authority, 59 AM. J. COMP. L. 715, 728 (2011) (claiming that the Conven-
tion “grossly exceeded” the charge given to it by the “Continental Congress”);
Lash, supra note 15, at 523 (“The Philadelphia Convention ignored that mandate
and drafted an entirely new Constitution.”); Misha Tseytlin, Note, The United
States Senate and the Problem of Equal State Suffrage, 94 GEO. L.J. 859, 869–70 (2006)
(“[T]he delegates decided to deviate from these instructions . . . .”); Benjamin A.
Geslison, What Were They Thinking? Examining the Intellectual Inspirations of the
Framers and Opponents of the United States Constitution, 17 TEX. REV. L. & POL. 185,
193 (2012) (reviewing FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTEL-
LECTUAL
ORIGINS OF THE CONSTITUTION (1985) and HERBERT J. STORING, WHAT
THE
ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF
THE
CONSTITUTION (1981)) (The Anti-Federalists “argued persuasively that the
Constitution was an illegal act completely unauthorized by the Convention”); see
also Robert F. Blomquist, Response to Geoffrey R. Stone and Seth Barrett Tillman, Be-
yond Historical Blushing: A Plea for Constitutional Intelligence, 2009 CARDOZO L. REV.
DE NOVO
244, 245; Jason A. Crook, Toward A More “Perfect” Union: The Untimely
Decline of Federalism and the Rise of the Homogenous Political Culture, 34 U. DAYTON
L. REV. 47, 50 (2008); Godbold, supra note 15, at 314; Kane, supra note 12, at 160;
Maggs, supra note 5, at 1710–12; Denys P. Myers, History of the Printed Archetype of
the Constitution of the United States of America, 11 GREEN BAG 2d 217, 219–20 (2008);
Smith, supra note 15, at 539–41; Edward C. Walterscheid, The Nature of the Intellec-
tual Property Clause: A Study in Historical Perspective (Part 1), 83 J. PAT. & TRADE-
MARK
OFF. SOC’Y 763, 790 (2001); Susan Henderson-Utis, Comment, What Would
the Founding Fathers Do? The Rise of Religious Programs in the United States Prison
System, 52 HOW. L.J. 459, 506 (2009); Jonker, supra note 15, at 453–54; David Kow-
alski, Comment, Red State, Blue State, No State?: Examining the Existence of A Con-
gressional Power to Remove A State, 84 U. DET. MERCY L. REV. 335, 343–45 (2007).
374. See, e.g., Dennis M. Cariello, Federalism for the New Millennium: Accounting
for the Values of Federalism, 26 FORDHAM URB. L.J. 1493, 1528 (1999); John Cornyn,
The Roots of the Texas Constitution: Settlement to Statehood, 26 TEX. TECH L. REV.
1089, 1094–95 (1995); Robert L. Jones, Lessons from a Lost Constitution: The Council of
Revision, the Bill of Rights, and the Role of the Judiciary in Democratic Governance, 27
J.L. & POL. 459, 555 (2012); James Leonard, Ubi Remedium Ibi Jus, or, Where There’s a
Remedy, There’s a Right: A Skeptic’s Critique of Ex Parte Young, 54 SYRACUSE L. REV.
215, 367 (2004); Michael B. Rappaport, The Constitutionality of a Limited Convention:
An Originalist Analysis, 28 CONST. COMMENT. 53, 67–68 (2012); Richard D. Rosen,
Funding “Non-Traditional” Military Operations: The Alluring Myth of A Presidential
Power of the Purse, 155 MIL. L. REV. 1, 152 (1998); Louis Michael Seidman, The Secret
No. 1]
Defying Conventional Wisdom 121
olis Convention “asked Congress to call a convention.”375 The
Annapolis delegates did no such thing. A copy was submitted
Congress out of mere respect with no request for action.376 T
Maine article reproduced a speech by a federal judge th
claimed that the five-month gap between the “request” fro
Annapolis and the “call” from Congress arose because Congr
could not convene a quorum377—a claim that is belied by hu
dreds of pages of congressional records in this time frame.378
Another writer, a bankruptcy judge, claimed: “The Federalis
did not really refute the charge that the delegates to the Conven-
tion had exceeded the authority given them by their states.”379 H
only citation for this proposition is the text of Article VII of the
Constitution.380 Ironically, this author’s next paragraph cites Jo
Marshall on the legitimacy of the ratification process.381 However,
he ignores Marshall’s statement in defense of the Convention th
“the Convention did not exceed their powers.”382
Colonel Richard D. Rosen claims that “[t]he Convention also
did not bother, as the Continental Congress had directed, to
return to Congress for its approval upon completing its
work.”383 We have already reviewed in detail the debates in t
Confederation Congress after it received the Constitution from
Philadelphia. Even Chief Justice Burger, who asserted that the
History of American Constitutional Skepticism: A Recovery and Preliminary Evaluation
17 U. PA. J. CONST. L. 1, 12–14 (2014); Lynn D. Wardle, The Proposed Federal M
riage Amendment and the Risks to Federalism in Family Law, 2 U. ST. THOMAS L.J. 1
198 (2004); Lynn D. Wardle, “Time Enough”: Webster v. Reproductive Health Services
and the Prudent Pace of Justice, 41 FLA. L. REV. 881, 938 n.308 (1989); Bruce Ste
Note, The Framers’ Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413,
428–29 (1982).
375. George Anastaplo, The Constitution at Two Hundred: Explorations, 22 TEX
TECH L. REV. 967, 969–70 (1991); Daniel Wathen & Barbara Riegelhaupt, The
Speeches of Frank M. Coffin: A Sideline to Judging, 63 ME. L. REV. 467, 472 (20
(quoting speech of Judge Frank M. Coffin).
376. 1 ELLIOT’S DEBATES, supra note 23, at 118.
377. Wathen & Riegelhaupt, supra note 375, at 472 (quoting speech of Judge
Frank M. Coffin).
378. 24 JOURNALS OF CONGRESS, supra note 70, at 261–62.
379. Randolph J. Haines, The Uniformity Power: Why Bankruptcy Is Different, 77
AM. BANKR. L.J. 129, 147 (2003).
380. Id.
381. Id.
382. Virginia Convention Debates (June 10, 1788) reprinted in 9 DHRC, supra
note 4, at 1092, 1118.
383. Rosen, supra note 374, at 66 n.367.
126
122
Harvard Journal of Law & Public Policy
[Vol. 40
Constitution was illegally adopted, recognized that “the Con-
stitution was sent back to the Continental Congress.”384
A few scholars have chronicled a more complete version of
the events surrounding the call of the Philadelphia Conven-
tion.385 However, completeness does not always equate with his-
torical accuracy. Shawn Gunnarson makes the forgivable error
of saying that only four states “responded” to Virginia’s call for
the Annapolis Convention.386 Nine states (counting Virginia) ap-
pointed delegates, but only four others joined Virginia in a time-
ly manner. However, Gunnarson makes the far more egregious
error of claiming that Virginia’s subsequent call for the Philadel-
phia Convention “languished until New York presented a mo-
tion in Congress.”387 This assertion ignores the fact that five other
states joined the Virginia call for the Philadelphia Convention
before New York’s motion was ever presented in Congress.
Moreover, New York’s motion did not even launch the discus-
sion of the Annapolis Convention in Congress. A congressional
committee had already recommended that Congress endorse the
Philadelphia Convention prior to New York’s motion.388
Gunnarson follows with the standard, but inaccurate, claim
that Congress authorized the Convention, which he follows with
the utterly unsupportable assertion that “the delegates decided
to exceed the express terms of their congressional mandate.”389
He offers no evidence to support the notion that the Convention
believed that it had been called pursuant to a mandate by Con-
gress or that the delegates agreed that they had violated their
actual mandates from their respective states. As we have seen,
the record of the Convention shows that all sides of the debate
appealed to the authority of their state appointments as the issue
of the scope of their authority; moreover, the Federalists vigor-
ously defended the legitimacy of their actions.
Other scholars who have written more extensive critiques of
the legitimacy of the Convention generally base their core ar-
guments and conclusions on the faulty premise that Congress
384. Burger, Remarks, supra note 3, at 79.
385. See, e.g., Shawn Gunnarson, Using History to Reshape the Discussion of Judicial
Review, 1994 B.Y.U. L. REV. 151, 160–62 (1994).
386. Id.
387. Id. at 161.
388.
See supra notes 80–82 and accompanying text.
389. Gunnarson, supra note 385, at 162.
No. 1]
Defying Conventional Wisdom 123
called the Convention for the sole purpose for amending the
Articles of Confederation.390 Such conclusions would be far
more academically palatable if there was some level of
acknowledgement that this premise of infidelity is disputed.391
Brian C. Murchison’s article bears mentioning because of his
selective editing of the historical record. He casts doubt on fi-
delity of the actions of the delegates at the Convention by first
suggesting that the Convention “arguably went beyond ‘revis-
ing’ the Articles” and that it “proposed an entirely new gov-
ernment.”392 He ends by proclaiming that the “Convention’s
product was ‘bold and radical’ not only for its extraordinary
content but for the independent character of its creation.”393
Murchison posits the view the Convention acted without legal
authority. His central thesis is that Madison justified this know-
ingly revolutionary action with language that paralleled Jeffer-
son’s Declaration of Independence.394
Murchison’s entire argument is premised on the contention
that the delegates’ formal authority came from a combination
of the Annapolis Convention report and the February 21st reso-
lution of Congress. As we have seen earlier, the overwhelming
evidence from the historical record supports Madison’s conten-
tion in Federalist No. 40 that “[t]he powers of the convention
ought, in strictness, to be determined by an inspection of the
commissions given to the members by their respective constit-
uents.”395 Murchison actually quotes the first part of this sen-
tence—putting a period after the word “determined.”396 By
390. See e.g., Finkelman, supra note 11, at 1174.
391. Compare id., with Eric M. Freedman, Why Constitutional Lawyers and Histori-
ans Should Take A Fresh Look at the Emergence of the Constitution from the Confedera-
tion Period: The Case of the Drafting of the Articles of Confederation, 60 TENN. L. REV.
783, 839 (1993) (noting, in passing, that Bruce Ackerman contends that the dele-
gates were unfaithful to their call while James Madison in Federalist No. 40 takes
the opposite position) (citing Bruce Ackerman, Constitutional Politics/Constitutional
Law, 99 YALE L.J. 453, 456 (1989)).
392. Brian C. Murchison, The Concept of Independence in Public Law, 41 EMORY L.J.
961, 976 (1992).
393. Id.
394. Id. at 975–81.
395. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
396. Id. at 975 (“He devotes Federalist No. 40 to answering this objection, posing
the question as ‘whether the convention were authorized to frame and propose
this mixed Constitution,’ and conceding, ‘The powers of the convention ought, in
strictness, to be determined.’”).
122
Harvard Journal of Law & Public Policy
[Vol. 40
Constitution was illegally adopted, recognized that “the Con-
stitution was sent back to the Continental Congress.”384
A few scholars have chronicled a more complete version of
the events surrounding the call of the Philadelphia Conven-
tion.385 However, completeness does not always equate with his-
torical accuracy. Shawn Gunnarson makes the forgivable error
of saying that only four states “responded” to Virginia’s call for
the Annapolis Convention.386 Nine states (counting Virginia) ap-
pointed delegates, but only four others joined Virginia in a time-
ly manner. However, Gunnarson makes the far more egregious
error of claiming that Virginia’s subsequent call for the Philadel-
phia Convention “languished until New York presented a mo-
tion in Congress.”387 This assertion ignores the fact that five other
states joined the Virginia call for the Philadelphia Convention
before New York’s motion was ever presented in Congress.
Moreover, New York’s motion did not even launch the discus-
sion of the Annapolis Convention in Congress. A congressional
committee had already recommended that Congress endorse the
Philadelphia Convention prior to New York’s motion.388
Gunnarson follows with the standard, but inaccurate, claim
that Congress authorized the Convention, which he follows with
the utterly unsupportable assertion that “the delegates decided
to exceed the express terms of their congressional mandate.”389
He offers no evidence to support the notion that the Convention
believed that it had been called pursuant to a mandate by Con-
gress or that the delegates agreed that they had violated their
actual mandates from their respective states. As we have seen,
the record of the Convention shows that all sides of the debate
appealed to the authority of their state appointments as the issue
of the scope of their authority; moreover, the Federalists vigor-
ously defended the legitimacy of their actions.
Other scholars who have written more extensive critiques of
the legitimacy of the Convention generally base their core ar-
guments and conclusions on the faulty premise that Congress
384. Burger, Remarks, supra note 3, at 79.
385. See, e.g., Shawn Gunnarson, Using History to Reshape the Discussion of Judicial
Review, 1994 B.Y.U. L. REV. 151, 160–62 (1994).
386. Id.
387. Id. at 161.
388.
See supra notes 80–82 and accompanying text.
389. Gunnarson, supra note 385, at 162.
No. 1]
Defying Conventional Wisdom 123
called the Convention for the sole purpose for amending the
Articles of Confederation.390 Such conclusions would be f
more academically palatable if there was some level o
acknowledgement that this premise of infidelity is disputed.391
Brian C. Murchison’s article bears mentioning because of his
selective editing of the historical record. He casts doubt on fi-
delity of the actions of the delegates at the Convention by first
suggesting that the Convention “arguably went beyond ‘revis-
ing’ the Articles” and that it “proposed an entirely new gov-
ernment.”392 He ends by proclaiming that the “Convention’s
product was ‘bold and radical’ not only for its extraordinary
content but for the independent character of its creation.”393
Murchison posits the view the Convention acted without legal
authority. His central thesis is that Madison justified this know-
ingly revolutionary action with language that paralleled Jeffer-
son’s Declaration of Independence.394
Murchison’s entire argument is premised on the contention
that the delegates’ formal authority came from a combination
of the Annapolis Convention report and the February 21st re
lution of Congress. As we have seen earlier, the overwhelming
evidence from the historical record supports Madison’s conten-
tion in Federalist No. 40 that “[t]he powers of the conventi
ought, in strictness, to be determined by an inspection of the
commissions given to the members by their respective constit-
uents.”395 Murchison actually quotes the first part of this sen-
tence—putting a period after the word “determined.”396 By
390. See e.g., Finkelman, supra note 11, at 1174.
391. Compare id., with Eric M. Freedman, Why Constitutional Lawyers and Histori-
ans Should Take A Fresh Look at the Emergence of the Constitution from the Confede
tion Period: The Case of the Drafting of the Articles of Confederation, 60 TENN. L. REV
783, 839 (1993) (noting, in passing, that Bruce Ackerman contends that the dele-
gates were unfaithful to their call while James Madison in Federalist No. 40 takes
the opposite position) (citing Bruce Ackerman, Constitutional Politics/Constitutio
Law, 99 YALE L.J. 453, 456 (1989)).
392. Brian C. Murchison, The Concept of Independence in Public Law, 41 EMORY L.
961, 976 (1992).
393. Id.
394. Id. at 975–81.
395. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
396. Id. at 975 (“He devotes Federalist No. 40 to answering this objection, posi
the question as ‘whether the convention were authorized to frame and propos
this mixed Constitution,’ and conceding, ‘The powers of the convention ought,
strictness, to be determined.’”).
127
122
Harvard Journal of Law & Public Policy
[Vol. 40
Constitution was illegally adopted, recognized that “the Con-
stitution was sent back to the Continental Congress.”384
A few scholars have chronicled a more complete version of
the events surrounding the call of the Philadelphia Conven-
tion.385 However, completeness does not always equate with his-
torical accuracy. Shawn Gunnarson makes the forgivable error
of saying that only four states “responded” to Virginia’s call for
the Annapolis Convention.386 Nine states (counting Virginia) ap-
pointed delegates, but only four others joined Virginia in a time-
ly manner. However, Gunnarson makes the far more egregious
error of claiming that Virginia’s subsequent call for the Philadel-
phia Convention “languished until New York presented a mo-
tion in Congress.”387 This assertion ignores the fact that five other
states joined the Virginia call for the Philadelphia Convention
before New York’s motion was ever presented in Congress.
Moreover, New York’s motion did not even launch the discus-
sion of the Annapolis Convention in Congress. A congressional
committee had already recommended that Congress endorse the
Philadelphia Convention prior to New York’s motion.388
Gunnarson follows with the standard, but inaccurate, claim
that Congress authorized the Convention, which he follows with
the utterly unsupportable assertion that “the delegates decided
to exceed the express terms of their congressional mandate.”389
He offers no evidence to support the notion that the Convention
believed that it had been called pursuant to a mandate by Con-
gress or that the delegates agreed that they had violated their
actual mandates from their respective states. As we have seen,
the record of the Convention shows that all sides of the debate
appealed to the authority of their state appointments as the issue
of the scope of their authority; moreover, the Federalists vigor-
ously defended the legitimacy of their actions.
Other scholars who have written more extensive critiques of
the legitimacy of the Convention generally base their core ar-
guments and conclusions on the faulty premise that Congress
384. Burger, Remarks, supra note 3, at 79.
385. See, e.g., Shawn Gunnarson, Using History to Reshape the Discussion of Judicial
Review, 1994 B.Y.U. L. REV. 151, 160–62 (1994).
386. Id.
387. Id. at 161.
388.
See supra notes 80–82 and accompanying text.
389. Gunnarson, supra note 385, at 162.
No. 1]
Defying Conventional Wisdom 123
called the Convention for the sole purpose for amending the
Articles of Confederation.390 Such conclusions would be far
more academically palatable if there was some level of
acknowledgement that this premise of infidelity is disputed.391
Brian C. Murchison’s article bears mentioning because of his
selective editing of the historical record. He casts doubt on fi-
delity of the actions of the delegates at the Convention by first
suggesting that the Convention “arguably went beyond ‘revis-
ing’ the Articles” and that it “proposed an entirely new gov-
ernment.”392 He ends by proclaiming that the “Convention’s
product was ‘bold and radical’ not only for its extraordinary
content but for the independent character of its creation.”393
Murchison posits the view the Convention acted without legal
authority. His central thesis is that Madison justified this know-
ingly revolutionary action with language that paralleled Jeffer-
son’s Declaration of Independence.394
Murchison’s entire argument is premised on the contention
that the delegates’ formal authority came from a combination
of the Annapolis Convention report and the February 21st reso-
lution of Congress. As we have seen earlier, the overwhelming
evidence from the historical record supports Madison’s conten-
tion in Federalist No. 40 that “[t]he powers of the convention
ought, in strictness, to be determined by an inspection of the
commissions given to the members by their respective constit-
uents.”395 Murchison actually quotes the first part of this sen-
tence—putting a period after the word “determined.”396 By
390. See e.g., Finkelman, supra note 11, at 1174.
391. Compare id., with Eric M. Freedman, Why Constitutional Lawyers and Histori-
ans Should Take A Fresh Look at the Emergence of the Constitution from the Confedera-
tion Period: The Case of the Drafting of the Articles of Confederation, 60 TENN. L. REV.
783, 839 (1993) (noting, in passing, that Bruce Ackerman contends that the dele-
gates were unfaithful to their call while James Madison in Federalist No. 40 takes
the opposite position) (citing Bruce Ackerman, Constitutional Politics/Constitutional
Law, 99 YALE L.J. 453, 456 (1989)).
392. Brian C. Murchison, The Concept of Independence in Public Law, 41 EMORY L.J.
961, 976 (1992).
393. Id.
394. Id. at 975–81.
395. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
396. Id. at 975 (“He devotes Federalist No. 40 to answering this objection, posing
the question as ‘whether the convention were authorized to frame and propose
this mixed Constitution,’ and conceding, ‘The powers of the convention ought, in
strictness, to be determined.’”).
122
Harvard Journal of Law & Public Policy
[Vol. 40
Constitution was illegally adopted, recognized that “the Con-
stitution was sent back to the Continental Congress.”384
A few scholars have chronicled a more complete version of
the events surrounding the call of the Philadelphia Conven-
tion.385 However, completeness does not always equate with his-
torical accuracy. Shawn Gunnarson makes the forgivable error
of saying that only four states “responded” to Virginia’s call for
the Annapolis Convention.386 Nine states (counting Virginia) ap-
pointed delegates, but only four others joined Virginia in a time-
ly manner. However, Gunnarson makes the far more egregious
error of claiming that Virginia’s subsequent call for the Philadel-
phia Convention “languished until New York presented a mo-
tion in Congress.”387 This assertion ignores the fact that five other
states joined the Virginia call for the Philadelphia Convention
before New York’s motion was ever presented in Congress.
Moreover, New York’s motion did not even launch the discus-
sion of the Annapolis Convention in Congress. A congressional
committee had already recommended that Congress endorse the
Philadelphia Convention prior to New York’s motion.388
Gunnarson follows with the standard, but inaccurate, claim
that Congress authorized the Convention, which he follows with
the utterly unsupportable assertion that “the delegates decided
to exceed the express terms of their congressional mandate.”389
He offers no evidence to support the notion that the Convention
believed that it had been called pursuant to a mandate by Con-
gress or that the delegates agreed that they had violated their
actual mandates from their respective states. As we have seen,
the record of the Convention shows that all sides of the debate
appealed to the authority of their state appointments as the issue
of the scope of their authority; moreover, the Federalists vigor-
ously defended the legitimacy of their actions.
Other scholars who have written more extensive critiques of
the legitimacy of the Convention generally base their core ar-
guments and conclusions on the faulty premise that Congress
384. Burger, Remarks, supra note 3, at 79.
385. See, e.g., Shawn Gunnarson, Using History to Reshape the Discussion of Judicial
Review, 1994 B.Y.U. L. REV. 151, 160–62 (1994).
386. Id.
387. Id. at 161.
388.
See supra notes 80–82 and accompanying text.
389. Gunnarson, supra note 385, at 162.
No. 1]
Defying Conventional Wisdom 123
called the Convention for the sole purpose for amending the
Articles of Confederation.390 Such conclusions would be f
more academically palatable if there was some level o
acknowledgement that this premise of infidelity is disputed.391
Brian C. Murchison’s article bears mentioning because of his
selective editing of the historical record. He casts doubt on fi-
delity of the actions of the delegates at the Convention by first
suggesting that the Convention “arguably went beyond ‘revis-
ing’ the Articles” and that it “proposed an entirely new gov-
ernment.”392 He ends by proclaiming that the “Convention’s
product was ‘bold and radical’ not only for its extraordinary
content but for the independent character of its creation.”393
Murchison posits the view the Convention acted without legal
authority. His central thesis is that Madison justified this know-
ingly revolutionary action with language that paralleled Jeffer-
son’s Declaration of Independence.394
Murchison’s entire argument is premised on the contention
that the delegates’ formal authority came from a combination
of the Annapolis Convention report and the February 21st re
lution of Congress. As we have seen earlier, the overwhelming
evidence from the historical record supports Madison’s conten-
tion in Federalist No. 40 that “[t]he powers of the conventi
ought, in strictness, to be determined by an inspection of the
commissions given to the members by their respective constit-
uents.”395 Murchison actually quotes the first part of this sen-
tence—putting a period after the word “determined.”396 By
390. See e.g., Finkelman, supra note 11, at 1174.
391. Compare id., with Eric M. Freedman, Why Constitutional Lawyers and Histori-
ans Should Take A Fresh Look at the Emergence of the Constitution from the Confede
tion Period: The Case of the Drafting of the Articles of Confederation, 60 TENN. L. REV
783, 839 (1993) (noting, in passing, that Bruce Ackerman contends that the dele-
gates were unfaithful to their call while James Madison in Federalist No. 40 takes
the opposite position) (citing Bruce Ackerman, Constitutional Politics/Constitutio
Law, 99 YALE L.J. 453, 456 (1989)).
392. Brian C. Murchison, The Concept of Independence in Public Law, 41 EMORY L.
961, 976 (1992).
393. Id.
394. Id. at 975–81.
395. THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
396. Id. at 975 (“He devotes Federalist No. 40 to answering this objection, posi
the question as ‘whether the convention were authorized to frame and propos
this mixed Constitution,’ and conceding, ‘The powers of the convention ought,
strictness, to be determined.’”).
128
124
Harvard Journal of Law & Public Policy
[Vol. 40
omitting the second half of the sentence, Murchison turns Mad-
ison’s defense of the Convention’s action into a concession of
questionable behavior. Murchison’s pedantic analysis seeks to
fit Madison’s arguments into a Procrustean Bed—lopping off
key words on the one hand, while stretching superficial com-
parisons with the Declaration of Independence into a full-
blown claim that Federalist No. 40 was a clever ruse attempting
to justify a revolutionary convention. The superstructure of his
theory is built on the discredited foundation that the delegates
knowingly exceeded the limits flowing from their congression-
al appointment—facts he asserts without discussion or proof.
Two scholars have looked at the question of the call of the Con-
vention and reached the conclusion that it did not come from
Congress.397 Unsurprisingly, both of these scholars reach this con-
clusion by an actual examination of the relevant documents.
Julius Goebel, Jr., recites the history that “some of the
states . . . had authorized the appointment of delegates to a
convention long before Congress was stirred to action . . . .”398
Moreover, “Congress when it finally did recommend a conven-
tion” did so “by resolve, a form to which no statutory force
may be attributed.”399 “Congress on February 21, 1787, had en-
dorsed the holding of a convention.”400
Robert Natelson devotes six pages of a 2013 law review article
to the defense of the fidelity of the delegates to their commis-
sions.401 By examining the texts of the credentials from each
state, he concludes that “the delegates all were empowered
through commissions issued by their respective states, and were
subject to additional state instructions. All but a handful of dele-
gates remained within the scope of their authority or, if that was
no longer possible, returned home.”402 However, he concludes
that it is reasonable to question the fidelity of New York’s Alex-
ander Hamilton and Massachusetts’ Rufus King and Nathaniel
Gorham—all of whom signed the Constitution.403
397. See Julius Goebel, Jr., Melancton Smith’s Minutes of Debates on the New Consti-
tution, 64 COLUM. L. REV. 26, 30 (1964); Natelson, supra note 91, at 674–79.
398. Goebel, supra note 397, at 30.
399. Id.
400. Id.
401. Natelson, supra note 91, at 674–79.
402. Id. at 679.
403. See id. at 678.
No. 1]
Defying Conventional Wisdom 125
While Natelson correctly analyzes the historical facts and the
legal conclusions on the whole, I take issue with his use of the
signing of the Constitution as the test for fidelity of these dele-
gates. Signing was largely symbolic and was, at most, a per-
sonal pledge of support. This was at the end of a convention
where every vote was made by states as states. The vote to ap-
prove the Constitution at the very end was counted by states,
not by delegates. No delegate ever took official action as an in-
dividual. The Massachusetts delegates were either faithful or
unfaithful to their commissions by casting dozens of votes in
the process—especially the ultimate vote to approve the Con-
stitution. As acknowledged by Natelson,404 the charge is less
credible against Hamilton because he never voted after Lansing
and Yates left in July.405 Hamilton’s personal endorsement of
the Constitution by signing it was not an act for the state of
New York. Moreover, both the legislature of New York and the
ratification convention in Massachusetts rejected the contention
that the Convention had violated the directions given by the
states.406 Despite these relatively minor disputes with Natelson
regarding these specific delegates, his article is singularly
noteworthy for looking at the correct documents and reasoning
to sound conclusions therefrom.
B. Answering Ackerman and Katyal
Professors Bruce Ackerman and Neal Katyal407 stand near-
ly alone408 among legal scholars for having undertaken a
404. See id. at 678 n.414.
405. Natelson, however, questions whether Hamilton should have continued as
a commissioner after the departure of his two New York colleagues. Id. at 722.
406. See Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note 4,
at 703, 704; 16 DHRC, supra note 4, at 68.
407. Katyal was a third-year student at Yale Law School at the time of publica-
tion. He is now a professor at Georgetown University Law Center.
408. Professor Akhil Amar has responded twice to the arguments of Ackerman
and Katyal. See Akhil Reed Amar, The Consent of the Governed: Constitutional
Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) [hereinafter Consent];
Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article
V, 55 U. CHI. L. REV. 1043, 1047–60 (1988) [hereinafter Philadelphia]. As the titles of
both articles suggest, his discussions of the legality of the adoption of the Consti-
tution are made in service of his argument that there are paths to amend the Con-
stitution that are outside of Article V. See Amar, Consent, supra, at 494–508; Amar,
Philadelphia, supra, at 1072–76. Moreover, his defense of the legality of the Consti-
tution is much more like an affirmative defense in a criminal case than a true de-
124
Harvard Journal of Law & Public Policy
[Vol. 40
omitting the second half of the sentence, Murchison turns Mad-
ison’s defense of the Convention’s action into a concession of
questionable behavior. Murchison’s pedantic analysis seeks to
fit Madison’s arguments into a Procrustean Bed—lopping off
key words on the one hand, while stretching superficial com-
parisons with the Declaration of Independence into a full-
blown claim that Federalist No. 40 was a clever ruse attempting
to justify a revolutionary convention. The superstructure of his
theory is built on the discredited foundation that the delegates
knowingly exceeded the limits flowing from their congression-
al appointment—facts he asserts without discussion or proof.
Two scholars have looked at the question of the call of the Con-
vention and reached the conclusion that it did not come from
Congress.397 Unsurprisingly, both of these scholars reach this con-
clusion by an actual examination of the relevant documents.
Julius Goebel, Jr., recites the history that “some of the
states . . . had authorized the appointment of delegates to a
convention long before Congress was stirred to action . . . .”398
Moreover, “Congress when it finally did recommend a conven-
tion” did so “by resolve, a form to which no statutory force
may be attributed.”399 “Congress on February 21, 1787, had en-
dorsed the holding of a convention.”400
Robert Natelson devotes six pages of a 2013 law review article
to the defense of the fidelity of the delegates to their commis-
sions.401 By examining the texts of the credentials from each
state, he concludes that “the delegates all were empowered
through commissions issued by their respective states, and were
subject to additional state instructions. All but a handful of dele-
gates remained within the scope of their authority or, if that was
no longer possible, returned home.”402 However, he concludes
that it is reasonable to question the fidelity of New York’s Alex-
ander Hamilton and Massachusetts’ Rufus King and Nathaniel
Gorham—all of whom signed the Constitution.403
397. See Julius Goebel, Jr., Melancton Smith’s Minutes of Debates on the New Consti-
tution, 64 COLUM. L. REV. 26, 30 (1964); Natelson, supra note 91, at 674–79.
398. Goebel, supra note 397, at 30.
399. Id.
400. Id.
401. Natelson, supra note 91, at 674–79.
402. Id. at 679.
403. See id. at 678.
No. 1]
Defying Conventional Wisdom 125
While Natelson correctly analyzes the historical facts and th
legal conclusions on the whole, I take issue with his use of the
signing of the Constitution as the test for fidelity of these de
gates. Signing was largely symbolic and was, at most, a per-
sonal pledge of support. This was at the end of a convention
where every vote was made by states as states. The vote to ap-
prove the Constitution at the very end was counted by states,
not by delegates. No delegate ever took official action as an in-
dividual. The Massachusetts delegates were either faithful or
unfaithful to their commissions by casting dozens of votes in
the process—especially the ultimate vote to approve the Co
stitution. As acknowledged by Natelson,404 the charge is less
credible against Hamilton because he never voted after Lansing
and Yates left in July.405 Hamilton’s personal endorsement
the Constitution by signing it was not an act for the state
New York. Moreover, both the legislature of New York and the
ratification convention in Massachusetts rejected the contention
that the Convention had violated the directions given by the
states.406 Despite these relatively minor disputes with Natelson
regarding these specific delegates, his article is singularly
noteworthy for looking at the correct documents and reasoni
to sound conclusions therefrom.
B. Answering Ackerman and Katyal
Professors Bruce Ackerman and Neal Katyal407 stand nea
ly alone408 among legal scholars for having undertaken
404. See id. at 678 n.414.
405. Natelson, however, questions whether Hamilton should have continued as
a commissioner after the departure of his two New York colleagues. Id. at 722.
406. See Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note
at 703, 704; 16 DHRC, supra note 4, at 68.
407. Katyal was a third-year student at Yale Law School at the time of publica-
tion. He is now a professor at Georgetown University Law Center.
408. Professor Akhil Amar has responded twice to the arguments of Ackerma
and Katyal. See Akhil Reed Amar, The Consent of the Governed: Constitutional
Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) [hereinafter Consent
Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Articl
V, 55 U. CHI. L. REV. 1043, 1047–60 (1988) [hereinafter Philadelphia]. As the titles o
both articles suggest, his discussions of the legality of the adoption of the Consti-
tution are made in service of his argument that there are paths to amend the C
stitution that are outside of Article V. See Amar, Consent, supra, at 494–508; Am
Philadelphia, supra, at 1072–76. Moreover, his defense of the legality of the Con
tution is much more like an affirmative defense in a criminal case than a true
129
124
Harvard Journal of Law & Public Policy
[Vol. 40
omitting the second half of the sentence, Murchison turns Mad-
ison’s defense of the Convention’s action into a concession of
questionable behavior. Murchison’s pedantic analysis seeks to
fit Madison’s arguments into a Procrustean Bed—lopping off
key words on the one hand, while stretching superficial com-
parisons with the Declaration of Independence into a full-
blown claim that Federalist No. 40 was a clever ruse attempting
to justify a revolutionary convention. The superstructure of his
theory is built on the discredited foundation that the delegates
knowingly exceeded the limits flowing from their congression-
al appointment—facts he asserts without discussion or proof.
Two scholars have looked at the question of the call of the Con-
vention and reached the conclusion that it did not come from
Congress.397 Unsurprisingly, both of these scholars reach this con-
clusion by an actual examination of the relevant documents.
Julius Goebel, Jr., recites the history that “some of the
states . . . had authorized the appointment of delegates to a
convention long before Congress was stirred to action . . . .”398
Moreover, “Congress when it finally did recommend a conven-
tion” did so “by resolve, a form to which no statutory force
may be attributed.”399 “Congress on February 21, 1787, had en-
dorsed the holding of a convention.”400
Robert Natelson devotes six pages of a 2013 law review article
to the defense of the fidelity of the delegates to their commis-
sions.401 By examining the texts of the credentials from each
state, he concludes that “the delegates all were empowered
through commissions issued by their respective states, and were
subject to additional state instructions. All but a handful of dele-
gates remained within the scope of their authority or, if that was
no longer possible, returned home.”402 However, he concludes
that it is reasonable to question the fidelity of New York’s Alex-
ander Hamilton and Massachusetts’ Rufus King and Nathaniel
Gorham—all of whom signed the Constitution.403
397. See Julius Goebel, Jr., Melancton Smith’s Minutes of Debates on the New Consti-
tution, 64 COLUM. L. REV. 26, 30 (1964); Natelson, supra note 91, at 674–79.
398. Goebel, supra note 397, at 30.
399. Id.
400. Id.
401. Natelson, supra note 91, at 674–79.
402. Id. at 679.
403. See id. at 678.
No. 1]
Defying Conventional Wisdom 125
While Natelson correctly analyzes the historical facts and the
legal conclusions on the whole, I take issue with his use of the
signing of the Constitution as the test for fidelity of these dele-
gates. Signing was largely symbolic and was, at most, a per-
sonal pledge of support. This was at the end of a convention
where every vote was made by states as states. The vote to ap-
prove the Constitution at the very end was counted by states,
not by delegates. No delegate ever took official action as an in-
dividual. The Massachusetts delegates were either faithful or
unfaithful to their commissions by casting dozens of votes in
the process—especially the ultimate vote to approve the Con-
stitution. As acknowledged by Natelson,404 the charge is less
credible against Hamilton because he never voted after Lansing
and Yates left in July.405 Hamilton’s personal endorsement of
the Constitution by signing it was not an act for the state of
New York. Moreover, both the legislature of New York and the
ratification convention in Massachusetts rejected the contention
that the Convention had violated the directions given by the
states.406 Despite these relatively minor disputes with Natelson
regarding these specific delegates, his article is singularly
noteworthy for looking at the correct documents and reasoning
to sound conclusions therefrom.
B. Answering Ackerman and Katyal
Professors Bruce Ackerman and Neal Katyal407 stand near-
ly alone408 among legal scholars for having undertaken a
404. See id. at 678 n.414.
405. Natelson, however, questions whether Hamilton should have continued as
a commissioner after the departure of his two New York colleagues. Id. at 722.
406. See Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note 4,
at 703, 704; 16 DHRC, supra note 4, at 68.
407. Katyal was a third-year student at Yale Law School at the time of publica-
tion. He is now a professor at Georgetown University Law Center.
408. Professor Akhil Amar has responded twice to the arguments of Ackerman
and Katyal. See Akhil Reed Amar, The Consent of the Governed: Constitutional
Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) [hereinafter Consent];
Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article
V, 55 U. CHI. L. REV. 1043, 1047–60 (1988) [hereinafter Philadelphia]. As the titles of
both articles suggest, his discussions of the legality of the adoption of the Consti-
tution are made in service of his argument that there are paths to amend the Con-
stitution that are outside of Article V. See Amar, Consent, supra, at 494–508; Amar,
Philadelphia, supra, at 1072–76. Moreover, his defense of the legality of the Consti-
tution is much more like an affirmative defense in a criminal case than a true de-
124
Harvard Journal of Law & Public Policy
[Vol. 40
omitting the second half of the sentence, Murchison turns Mad-
ison’s defense of the Convention’s action into a concession of
questionable behavior. Murchison’s pedantic analysis seeks to
fit Madison’s arguments into a Procrustean Bed—lopping off
key words on the one hand, while stretching superficial com-
parisons with the Declaration of Independence into a full-
blown claim that Federalist No. 40 was a clever ruse attempting
to justify a revolutionary convention. The superstructure of his
theory is built on the discredited foundation that the delegates
knowingly exceeded the limits flowing from their congression-
al appointment—facts he asserts without discussion or proof.
Two scholars have looked at the question of the call of the Con-
vention and reached the conclusion that it did not come from
Congress.397 Unsurprisingly, both of these scholars reach this con-
clusion by an actual examination of the relevant documents.
Julius Goebel, Jr., recites the history that “some of the
states . . . had authorized the appointment of delegates to a
convention long before Congress was stirred to action . . . .”398
Moreover, “Congress when it finally did recommend a conven-
tion” did so “by resolve, a form to which no statutory force
may be attributed.”399 “Congress on February 21, 1787, had en-
dorsed the holding of a convention.”400
Robert Natelson devotes six pages of a 2013 law review article
to the defense of the fidelity of the delegates to their commis-
sions.401 By examining the texts of the credentials from each
state, he concludes that “the delegates all were empowered
through commissions issued by their respective states, and were
subject to additional state instructions. All but a handful of dele-
gates remained within the scope of their authority or, if that was
no longer possible, returned home.”402 However, he concludes
that it is reasonable to question the fidelity of New York’s Alex-
ander Hamilton and Massachusetts’ Rufus King and Nathaniel
Gorham—all of whom signed the Constitution.403
397. See Julius Goebel, Jr., Melancton Smith’s Minutes of Debates on the New Consti-
tution, 64 COLUM. L. REV. 26, 30 (1964); Natelson, supra note 91, at 674–79.
398. Goebel, supra note 397, at 30.
399. Id.
400. Id.
401. Natelson, supra note 91, at 674–79.
402. Id. at 679.
403. See id. at 678.
No. 1]
Defying Conventional Wisdom 125
While Natelson correctly analyzes the historical facts and th
legal conclusions on the whole, I take issue with his use of the
signing of the Constitution as the test for fidelity of these de
gates. Signing was largely symbolic and was, at most, a per-
sonal pledge of support. This was at the end of a convention
where every vote was made by states as states. The vote to ap-
prove the Constitution at the very end was counted by states,
not by delegates. No delegate ever took official action as an in-
dividual. The Massachusetts delegates were either faithful or
unfaithful to their commissions by casting dozens of votes in
the process—especially the ultimate vote to approve the Co
stitution. As acknowledged by Natelson,404 the charge is less
credible against Hamilton because he never voted after Lansing
and Yates left in July.405 Hamilton’s personal endorsement
the Constitution by signing it was not an act for the state
New York. Moreover, both the legislature of New York and the
ratification convention in Massachusetts rejected the contention
that the Convention had violated the directions given by the
states.406 Despite these relatively minor disputes with Natelson
regarding these specific delegates, his article is singularly
noteworthy for looking at the correct documents and reasoni
to sound conclusions therefrom.
B. Answering Ackerman and Katyal
Professors Bruce Ackerman and Neal Katyal407 stand nea
ly alone408 among legal scholars for having undertaken
404. See id. at 678 n.414.
405. Natelson, however, questions whether Hamilton should have continued as
a commissioner after the departure of his two New York colleagues. Id. at 722.
406. See Assembly Proceedings (Jan. 31 1788), reprinted in 20 DHRC, supra note
at 703, 704; 16 DHRC, supra note 4, at 68.
407. Katyal was a third-year student at Yale Law School at the time of publica-
tion. He is now a professor at Georgetown University Law Center.
408. Professor Akhil Amar has responded twice to the arguments of Ackerma
and Katyal. See Akhil Reed Amar, The Consent of the Governed: Constitutional
Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) [hereinafter Consent
Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Articl
V, 55 U. CHI. L. REV. 1043, 1047–60 (1988) [hereinafter Philadelphia]. As the titles o
both articles suggest, his discussions of the legality of the adoption of the Consti-
tution are made in service of his argument that there are paths to amend the C
stitution that are outside of Article V. See Amar, Consent, supra, at 494–508; Am
Philadelphia, supra, at 1072–76. Moreover, his defense of the legality of the Con
tution is much more like an affirmative defense in a criminal case than a true
130
126
Harvard Journal of Law & Public Policy
[Vol. 40
comprehensive review of the legality of the adoption of the
Constitution.409 An earlier article, not cited by Ackerman and
Katyal, makes very similar arguments.410 Ackerman and
Katyal’s premises and conclusions are concisely described in
their fourth paragraph:
Our main task, however, is to confront the problem raised by
the Federalists’ flagrant illegalities. Movements that indulge in sys-
tematic contempt for the law risk a violent backlash. Rather than
establish a new and stable regime, revolutionary acts of illegality
can catalyze an escalating cycle of incivility, violence, and civil
war. How did the Federalists avoid this dismal cycle? More
positively: How did the Founders manage to win acceptance of
their claim to speak for the People at the same moment that
they were breaking the rules of the game?411
This excerpt is typical of the highly charged language that per-
vades their work. The illegality of the adoption of the Constitu-
tion is not treated as a close question—the process of adopting
fense. He essentially argues that while there is a facial inconsistency with Article
XIII of the Articles of Confederation, the Constitution was lawfully adopted be-
cause the Articles were a treaty that had been breached by the states. Amar, Con-
sent, supra, at 465–69. Thus, having been breached, the states were at liberty to
write a new document that would otherwise be illegal. While we certainly find
elements of international law parallels in the arguments of the Federalists, his
concession that there is a facial violation is a much different defense than is ar-
gued here. His thesis that there is an extra-constitutional method of amending the
Constitution takes the contention outside of anything that would amount to an
originalist or textualist defense of the Constitution. It is a creative argument, but
Ackerman and Katyal’s critiques of it are powerful. See Ackerman & Kaytal, supra
note 14, at 476–487. This article is the first comprehensive direct defense (as op-
posed to Amar’s affirmative defense) of the legality of the Constitution.
409. See Ackerman & Katyal, supra note 14.
410. Kay, supra note 14. Kay bases his argument on the familiar and erroneous
assertion that the Annapolis Convention “proposed that Congress call another
convention to be held in Philadelphia.” Id. at 63. He fails to cite or quote the actual
language of the report from the Annapolis Convention which clearly addressed
its recommendations to the state legislatures to call a convention. The conven-
tion’s stated reasons for sending a copy to Congress was to demonstrate courtesy.
He then asserts the common claim that Congress called the Convention and lim-
ited their authority to the revision of the Articles. Id. at 63–64. Kay embellishes on
this claim by stating “the Congressional resolution calling the convention, as well
as the instructions to a number of state delegations, restricted the convention’s
mission to ‘revising the Articles . . . .’” Id. at 64. He fails to examine the actual lan-
guage of any state’s delegation, nor does he consider the argument made by Mad-
ison in Federalist No. 40 that the actual call of the Convention came from the states.
411. See Ackerman & Katyal, supra note 14, at 476–77 (emphasis added).
No. 1]
Defying Conventional Wisdom 127
the Constitution was “flagrant[ly]” illegal.412 The Founders
demonstrated “systematic contempt for the law.”413 They
committed “revolutionary acts of illegality.”414 They were not
merely “breaking the rules of the game”—Madison, Hamilton,
and Washington were doing so with deliberate disdain.415
Ackerman and Katyal purport to paraphrase the Founders’
justification for this unscrupulous maneuvering:
Granted, we did not play by the old rules. But we did some-
thing just as good. We have beaten our opponents time after
time in an arduous series of electoral struggles within a large
number of familiar lawmaking institutions. True, our repeated
victories don’t add up to a formal constitutional amendment
under the existing rules. But we never would have emerged
victorious in election after election without the considered sup-
port of a mobilized majority of the American People. Moreover,
the premises underlying the old rules for constitutional
amendment are deeply defective, inconsistent with a better un-
derstanding of the nature of democratic popular rule. We there-
fore claim that our repeated legislative and electoral victories
have already provided us with a legitimate mandate from the
People to make new constitutional law. Forcing us to play by
the old rules would only allow a minority to stifle the living
voice of the People by manipulating legalisms that have lost
their underlying functions.416
This paraphrase was unsupported by any citation to the actual
words of the Federalists. Statements can be found from Madi-
son and other Federalists that support the claim that they be-
lieved their actions were morally justified,417 but nothing at all
can be found to support the overall tone and thesis of this effort
at historical ventriloquism. The Federalists defended both the
legal and moral basis of their actions. They would at times ar-
gue these defenses in the alternative. But absolutely nothing
can be found from the Framers that demonstrates that they be-
lieved their actions were clearly illegal and revolutionary and
were nonetheless justified.
412. Id. at 476.
413. Id.
414. Id.
415. See id. at 476–77.
416. Id. at 478.
417. See, e.g., THE FEDERALIST NO. 40, at 252–54 (James Madison) (Clinton Rossi-
er ed., 1961).
126
Harvard Journal of Law & Public Policy
[Vol. 40
comprehensive review of the legality of the adoption of the
Constitution.409 An earlier article, not cited by Ackerman and
Katyal, makes very similar arguments.410 Ackerman and
Katyal’s premises and conclusions are concisely described in
their fourth paragraph:
Our main task, however, is to confront the problem raised by
the Federalists’ flagrant illegalities. Movements that indulge in sys-
tematic contempt for the law risk a violent backlash. Rather than
establish a new and stable regime, revolutionary acts of illegality
can catalyze an escalating cycle of incivility, violence, and civil
war. How did the Federalists avoid this dismal cycle? More
positively: How did the Founders manage to win acceptance of
their claim to speak for the People at the same moment that
they were breaking the rules of the game?411
This excerpt is typical of the highly charged language that per-
vades their work. The illegality of the adoption of the Constitu-
tion is not treated as a close question—the process of adopting
fense. He essentially argues that while there is a facial inconsistency with Article
XIII of the Articles of Confederation, the Constitution was lawfully adopted be-
cause the Articles were a treaty that had been breached by the states. Amar, Con-
sent, supra, at 465–69. Thus, having been breached, the states were at liberty to
write a new document that would otherwise be illegal. While we certainly find
elements of international law parallels in the arguments of the Federalists, his
concession that there is a facial violation is a much different defense than is ar-
gued here. His thesis that there is an extra-constitutional method of amending the
Constitution takes the contention outside of anything that would amount to an
originalist or textualist defense of the Constitution. It is a creative argument, but
Ackerman and Katyal’s critiques of it are powerful. See Ackerman & Kaytal, supra
note 14, at 476–487. This article is the first comprehensive direct defense (as op-
posed to Amar’s affirmative defense) of the legality of the Constitution.
409. See Ackerman & Katyal, supra note 14.
410. Kay, supra note 14. Kay bases his argument on the familiar and erroneous
assertion that the Annapolis Convention “proposed that Congress call another
convention to be held in Philadelphia.” Id. at 63. He fails to cite or quote the actual
language of the report from the Annapolis Convention which clearly addressed
its recommendations to the state legislatures to call a convention. The conven-
tion’s stated reasons for sending a copy to Congress was to demonstrate courtesy.
He then asserts the common claim that Congress called the Convention and lim-
ited their authority to the revision of the Articles. Id. at 63–64. Kay embellishes on
this claim by stating “the Congressional resolution calling the convention, as well
as the instructions to a number of state delegations, restricted the convention’s
mission to ‘revising the Articles . . . .’” Id. at 64. He fails to examine the actual lan-
guage of any state’s delegation, nor does he consider the argument made by Mad-
ison in Federalist No. 40 that the actual call of the Convention came from the states.
411. See Ackerman & Katyal, supra note 14, at 476–77 (emphasis added).
No. 1]
Defying Conventional Wisdom 127
the Constitution was “flagrant[ly]” illegal.412 The Found
demonstrated “systematic contempt for the law.”413 They
committed “revolutionary acts of illegality.”414 They were n
merely “breaking the rules of the game”—Madison, Hamilton,
and Washington were doing so with deliberate disdain.415
Ackerman and Katyal purport to paraphrase the Founde
justification for this unscrupulous maneuvering:
Granted, we did not play by the old rules. But we did some-
thing just as good. We have beaten our opponents time after
time in an arduous series of electoral struggles within a large
number of familiar lawmaking institutions. True, our repeated
victories don’t add up to a formal constitutional amendment
under the existing rules. But we never would have emerged
victorious in election after election without the considered sup-
port of a mobilized majority of the American People. Moreover,
the premises underlying the old rules for constitutional
amendment are deeply defective, inconsistent with a better un-
derstanding of the nature of democratic popular rule. We there-
fore claim that our repeated legislative and electoral victories
have already provided us with a legitimate mandate from the
People to make new constitutional law. Forcing us to play by
the old rules would only allow a minority to stifle the living
voice of the People by manipulating legalisms that have lost
their underlying functions.416
This paraphrase was unsupported by any citation to the act
words of the Federalists. Statements can be found from Madi-
son and other Federalists that support the claim that they
lieved their actions were morally justified,417 but nothing at all
can be found to support the overall tone and thesis of this effort
at historical ventriloquism. The Federalists defended both
legal and moral basis of their actions. They would at times
gue these defenses in the alternative. But absolutely nothing
can be found from the Framers that demonstrates that they
lieved their actions were clearly illegal and revolutionary a
were nonetheless justified.
412. Id. at 476.
413. Id.
414. Id.
415. See id. at 476–77.
416. Id. at 478.
417. See, e.g., THE FEDERALIST NO. 40, at 252–54 (James Madison) (Clinton
er ed., 1961).
131
126
Harvard Journal of Law & Public Policy
[Vol. 40
comprehensive review of the legality of the adoption of the
Constitution.409 An earlier article, not cited by Ackerman and
Katyal, makes very similar arguments.410 Ackerman and
Katyal’s premises and conclusions are concisely described in
their fourth paragraph:
Our main task, however, is to confront the problem raised by
the Federalists’ flagrant illegalities. Movements that indulge in sys-
tematic contempt for the law risk a violent backlash. Rather than
establish a new and stable regime, revolutionary acts of illegality
can catalyze an escalating cycle of incivility, violence, and civil
war. How did the Federalists avoid this dismal cycle? More
positively: How did the Founders manage to win acceptance of
their claim to speak for the People at the same moment that
they were breaking the rules of the game?411
This excerpt is typical of the highly charged language that per-
vades their work. The illegality of the adoption of the Constitu-
tion is not treated as a close question—the process of adopting
fense. He essentially argues that while there is a facial inconsistency with Article
XIII of the Articles of Confederation, the Constitution was lawfully adopted be-
cause the Articles were a treaty that had been breached by the states. Amar, Con-
sent, supra, at 465–69. Thus, having been breached, the states were at liberty to
write a new document that would otherwise be illegal. While we certainly find
elements of international law parallels in the arguments of the Federalists, his
concession that there is a facial violation is a much different defense than is ar-
gued here. His thesis that there is an extra-constitutional method of amending the
Constitution takes the contention outside of anything that would amount to an
originalist or textualist defense of the Constitution. It is a creative argument, but
Ackerman and Katyal’s critiques of it are powerful. See Ackerman & Kaytal, supra
note 14, at 476–487. This article is the first comprehensive direct defense (as op-
posed to Amar’s affirmative defense) of the legality of the Constitution.
409. See Ackerman & Katyal, supra note 14.
410. Kay, supra note 14. Kay bases his argument on the familiar and erroneous
assertion that the Annapolis Convention “proposed that Congress call another
convention to be held in Philadelphia.” Id. at 63. He fails to cite or quote the actual
language of the report from the Annapolis Convention which clearly addressed
its recommendations to the state legislatures to call a convention. The conven-
tion’s stated reasons for sending a copy to Congress was to demonstrate courtesy.
He then asserts the common claim that Congress called the Convention and lim-
ited their authority to the revision of the Articles. Id. at 63–64. Kay embellishes on
this claim by stating “the Congressional resolution calling the convention, as well
as the instructions to a number of state delegations, restricted the convention’s
mission to ‘revising the Articles . . . .’” Id. at 64. He fails to examine the actual lan-
guage of any state’s delegation, nor does he consider the argument made by Mad-
ison in Federalist No. 40 that the actual call of the Convention came from the states.
411. See Ackerman & Katyal, supra note 14, at 476–77 (emphasis added).
No. 1]
Defying Conventional Wisdom 127
the Constitution was “flagrant[ly]” illegal.412 The Founders
demonstrated “systematic contempt for the law.”413 They
committed “revolutionary acts of illegality.”414 They were not
merely “breaking the rules of the game”—Madison, Hamilton,
and Washington were doing so with deliberate disdain.415
Ackerman and Katyal purport to paraphrase the Founders’
justification for this unscrupulous maneuvering:
Granted, we did not play by the old rules. But we did some-
thing just as good. We have beaten our opponents time after
time in an arduous series of electoral struggles within a large
number of familiar lawmaking institutions. True, our repeated
victories don’t add up to a formal constitutional amendment
under the existing rules. But we never would have emerged
victorious in election after election without the considered sup-
port of a mobilized majority of the American People. Moreover,
the premises underlying the old rules for constitutional
amendment are deeply defective, inconsistent with a better un-
derstanding of the nature of democratic popular rule. We there-
fore claim that our repeated legislative and electoral victories
have already provided us with a legitimate mandate from the
People to make new constitutional law. Forcing us to play by
the old rules would only allow a minority to stifle the living
voice of the People by manipulating legalisms that have lost
their underlying functions.416
This paraphrase was unsupported by any citation to the actual
words of the Federalists. Statements can be found from Madi-
son and other Federalists that support the claim that they be-
lieved their actions were morally justified,417 but nothing at all
can be found to support the overall tone and thesis of this effort
at historical ventriloquism. The Federalists defended both the
legal and moral basis of their actions. They would at times ar-
gue these defenses in the alternative. But absolutely nothing
can be found from the Framers that demonstrates that they be-
lieved their actions were clearly illegal and revolutionary and
were nonetheless justified.
412. Id. at 476.
413. Id.
414. Id.
415. See id. at 476–77.
416. Id. at 478.
417. See, e.g., THE FEDERALIST NO. 40, at 252–54 (James Madison) (Clinton Rossi-
er ed., 1961).
126
Harvard Journal of Law & Public Policy
[Vol. 40
comprehensive review of the legality of the adoption of the
Constitution.409 An earlier article, not cited by Ackerman and
Katyal, makes very similar arguments.410 Ackerman and
Katyal’s premises and conclusions are concisely described in
their fourth paragraph:
Our main task, however, is to confront the problem raised by
the Federalists’ flagrant illegalities. Movements that indulge in sys-
tematic contempt for the law risk a violent backlash. Rather than
establish a new and stable regime, revolutionary acts of illegality
can catalyze an escalating cycle of incivility, violence, and civil
war. How did the Federalists avoid this dismal cycle? More
positively: How did the Founders manage to win acceptance of
their claim to speak for the People at the same moment that
they were breaking the rules of the game?411
This excerpt is typical of the highly charged language that per-
vades their work. The illegality of the adoption of the Constitu-
tion is not treated as a close question—the process of adopting
fense. He essentially argues that while there is a facial inconsistency with Article
XIII of the Articles of Confederation, the Constitution was lawfully adopted be-
cause the Articles were a treaty that had been breached by the states. Amar, Con-
sent, supra, at 465–69. Thus, having been breached, the states were at liberty to
write a new document that would otherwise be illegal. While we certainly find
elements of international law parallels in the arguments of the Federalists, his
concession that there is a facial violation is a much different defense than is ar-
gued here. His thesis that there is an extra-constitutional method of amending the
Constitution takes the contention outside of anything that would amount to an
originalist or textualist defense of the Constitution. It is a creative argument, but
Ackerman and Katyal’s critiques of it are powerful. See Ackerman & Kaytal, supra
note 14, at 476–487. This article is the first comprehensive direct defense (as op-
posed to Amar’s affirmative defense) of the legality of the Constitution.
409. See Ackerman & Katyal, supra note 14.
410. Kay, supra note 14. Kay bases his argument on the familiar and erroneous
assertion that the Annapolis Convention “proposed that Congress call another
convention to be held in Philadelphia.” Id. at 63. He fails to cite or quote the actual
language of the report from the Annapolis Convention which clearly addressed
its recommendations to the state legislatures to call a convention. The conven-
tion’s stated reasons for sending a copy to Congress was to demonstrate courtesy.
He then asserts the common claim that Congress called the Convention and lim-
ited their authority to the revision of the Articles. Id. at 63–64. Kay embellishes on
this claim by stating “the Congressional resolution calling the convention, as well
as the instructions to a number of state delegations, restricted the convention’s
mission to ‘revising the Articles . . . .’” Id. at 64. He fails to examine the actual lan-
guage of any state’s delegation, nor does he consider the argument made by Mad-
ison in Federalist No. 40 that the actual call of the Convention came from the states.
411. See Ackerman & Katyal, supra note 14, at 476–77 (emphasis added).
No. 1]
Defying Conventional Wisdom 127
the Constitution was “flagrant[ly]” illegal.412 The Found
demonstrated “systematic contempt for the law.”413 They
committed “revolutionary acts of illegality.”414 They were n
merely “breaking the rules of the game”—Madison, Hamilton,
and Washington were doing so with deliberate disdain.415
Ackerman and Katyal purport to paraphrase the Founde
justification for this unscrupulous maneuvering:
Granted, we did not play by the old rules. But we did some-
thing just as good. We have beaten our opponents time after
time in an arduous series of electoral struggles within a large
number of familiar lawmaking institutions. True, our repeated
victories don’t add up to a formal constitutional amendment
under the existing rules. But we never would have emerged
victorious in election after election without the considered sup-
port of a mobilized majority of the American People. Moreover,
the premises underlying the old rules for constitutional
amendment are deeply defective, inconsistent with a better un-
derstanding of the nature of democratic popular rule. We there-
fore claim that our repeated legislative and electoral victories
have already provided us with a legitimate mandate from the
People to make new constitutional law. Forcing us to play by
the old rules would only allow a minority to stifle the living
voice of the People by manipulating legalisms that have lost
their underlying functions.416
This paraphrase was unsupported by any citation to the act
words of the Federalists. Statements can be found from Madi-
son and other Federalists that support the claim that they
lieved their actions were morally justified,417 but nothing at all
can be found to support the overall tone and thesis of this effort
at historical ventriloquism. The Federalists defended both
legal and moral basis of their actions. They would at times
gue these defenses in the alternative. But absolutely nothing
can be found from the Framers that demonstrates that they
lieved their actions were clearly illegal and revolutionary a
were nonetheless justified.
412. Id. at 476.
413. Id.
414. Id.
415. See id. at 476–77.
416. Id. at 478.
417. See, e.g., THE FEDERALIST NO. 40, at 252–54 (James Madison) (Clinton
er ed., 1961).
132
128
Harvard Journal of Law & Public Policy
[Vol. 40
Ackerman and Katyal allege “three legal obstacles” that pur-
portedly demonstrate the illegality of the Founders’ conduct:
Problems with the Articles of Confederation
Problems with the Convention
Problems with State Constitutions418
The professors allege ten distinct violations under these three
categories.419 However, their “three legal obstacles” and ten
specific allegations are not well-organized. A more logical or-
ganization of the professors’ legal arguments would be:
The process was illegal from beginning to end be-
cause Article XIII provided the exclusive method for
amending the form of governance of the United
States.
The delegates went beyond the call of the convention
containing their controlling instructions.
The method of ratification chosen violated both Arti-
cle XIII and several state constitutions.420
418. Ackerman & Katyal, supra note 14, at 475–487.
419. See id. at 478–486. The violations are as follows: (1) the Constitution invited
secession; (2) the Constitutional Convention ignored the role the Articles “ex-
pressly assigned to the Continental Congress” for approving subsequent amend-
ments; (3) the Founders cut the state legislatures out of the ratifying process; (4)
the entire process was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision;” (5) the Convention was a secessionist body;
(6) Delaware’s delegation “recognized that it was acting in contempt of its com-
mission;” (7) the delegates had been “charged” by the “Continental Congress” to
meet “for the sole and express purpose of revising the Articles” and the delegates
went “beyond their legal authority when they ripped up the Articles and pro-
posed an entirely new text;” (8) the delegations from New York, Connecticut, and
Massachusetts clearly violated their commissions; (9) all states that gave instruc-
tions as to the mode of ratification specified approval by Congress followed by
approval of the state legislatures—which was not followed; and (10) the Suprem-
acy Clause of the Constitution created an implied conflict with and de facto
change in several state constitutional amendments. Thus, the process for obtain-
ing amendments to state constitutions was applicable and was not followed. Id.
420. One of their arguments does not fit this outline but can be easily dismissed.
The contention that the Convention was secessionist is nothing more than a politi-
cal criticism and does not rise to the level of a serious legal argument. Moreover, it
is a stretch to contend that it is a secessionist act to invite all states to a convention
to discuss possible changes to the form of government. The fact that one state
chose not to attend does not alter the nature of the Convention. If Rhode Island
had been excluded by the others from the drafting convention it would plausibly
raise the specter of secessionism. Describing Rhode Island’s refusal to attend the
Convention as an act of secession by the other twelve states is facially without
merit.
No. 1]
Defying Conventional Wisdom 129
1. The Contention that the Whole Process Was Illegal under the
Articles of Confederation May Be Summarily Dismissed
Although the professors’ argument that the entire process
was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision”421 made the list of their ten
specific illegalities, a reader must hunt diligently through the
remainder of their article for any supporting argumentation.
Random statements in support of this argument are sprinkled
throughout the article, but if this theory is to be considered se-
riously, it demands robust development and careful considera-
tion rather than scattered and disjointed assertions.422
The longest single presentation of this theory is a mere two
sentences that refer to the Annapolis Convention:
The commissioners had taken upon themselves the right
to propose a fundamental change in constitutional law.
While Article XIII had confided exclusive authority in
Congress to propose amendments, Annapolis was making
an end run around the existing institution by calling for a
second body, the convention, unknown to the Confedera-
cy’s higher lawmaking system.423
Ackerman and Katyal critique their rival Akhil Amar for making
claims unsupported by evidence from the contemporaneous de-
bates.424 Amar’s theory (alleging a breach of treaty obligations)
should be rejected, they say, because there wasn’t “any evidence
that Americans took Amar’s argument seriously.”425 However,
in their own article, despite their self-described exhaustive re-
search,426 they cite very slender evidence that anyone at the time
421. Ackerman & Katyal, supra note 14, at 480.
422. If this theory was advanced in this manner in an appellate brief, it is clear
that it would be dismissed under the familiar standard for undeveloped claims.
See Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59
F.3d 284, 293–94 (1st Cir. 1995) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.
It is not sufficient for a party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its bones.”); United States v. Hayter Oil
Co., 51 F.3d 1265, 1269 (6th Cir. 1995) (finding that defendants waived issue by
making conclusory statements and failing to develop their theory).
423. Ackerman & Katyal, supra note 14, at 497.
424. See, e.g., id. at 488 n.35.
425. Id. at 539–540.
426.
Id. at 540 (”[W]e have amassed an enormous body of evidence expressing
legalistic objections to the Federalists’ unconventional activities.”).
128
Harvard Journal of Law & Public Policy
[Vol. 40
Ackerman and Katyal allege “three legal obstacles” that pur-
portedly demonstrate the illegality of the Founders’ conduct:
Problems with the Articles of Confederation
Problems with the Convention
Problems with State Constitutions418
The professors allege ten distinct violations under these three
categories.419 However, their “three legal obstacles” and ten
specific allegations are not well-organized. A more logical or-
ganization of the professors’ legal arguments would be:
The process was illegal from beginning to end be-
cause Article XIII provided the exclusive method for
amending the form of governance of the United
States.
The delegates went beyond the call of the convention
containing their controlling instructions.
The method of ratification chosen violated both Arti-
cle XIII and several state constitutions.420
418. Ackerman & Katyal, supra note 14, at 475–487.
419. See id. at 478–486. The violations are as follows: (1) the Constitution invited
secession; (2) the Constitutional Convention ignored the role the Articles “ex-
pressly assigned to the Continental Congress” for approving subsequent amend-
ments; (3) the Founders cut the state legislatures out of the ratifying process; (4)
the entire process was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision;” (5) the Convention was a secessionist body;
(6) Delaware’s delegation “recognized that it was acting in contempt of its com-
mission;” (7) the delegates had been “charged” by the “Continental Congress” to
meet “for the sole and express purpose of revising the Articles” and the delegates
went “beyond their legal authority when they ripped up the Articles and pro-
posed an entirely new text;” (8) the delegations from New York, Connecticut, and
Massachusetts clearly violated their commissions; (9) all states that gave instruc-
tions as to the mode of ratification specified approval by Congress followed by
approval of the state legislatures—which was not followed; and (10) the Suprem-
acy Clause of the Constitution created an implied conflict with and de facto
change in several state constitutional amendments. Thus, the process for obtain-
ing amendments to state constitutions was applicable and was not followed. Id.
420. One of their arguments does not fit this outline but can be easily dismissed.
The contention that the Convention was secessionist is nothing more than a politi-
cal criticism and does not rise to the level of a serious legal argument. Moreover, it
is a stretch to contend that it is a secessionist act to invite all states to a convention
to discuss possible changes to the form of government. The fact that one state
chose not to attend does not alter the nature of the Convention. If Rhode Island
had been excluded by the others from the drafting convention it would plausibly
raise the specter of secessionism. Describing Rhode Island’s refusal to attend the
Convention as an act of secession by the other twelve states is facially without
merit.
No. 1]
Defying Conventional Wisdom 129
1. The Contention that the Whole Process Was Illegal under the
Articles of Confederation May Be Summarily Dismissed
Although the professors’ argument that the entire proces
was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision”421 made the list of their te
specific illegalities, a reader must hunt diligently through the
remainder of their article for any supporting argumentation.
Random statements in support of this argument are sprinkled
throughout the article, but if this theory is to be considered
riously, it demands robust development and careful considera-
tion rather than scattered and disjointed assertions.422
The longest single presentation of this theory is a mere tw
sentences that refer to the Annapolis Convention:
The commissioners had taken upon themselves the right
to propose a fundamental change in constitutional law.
While Article XIII had confided exclusive authority in
Congress to propose amendments, Annapolis was making
an end run around the existing institution by calling for a
second body, the convention, unknown to the Confedera-
cy’s higher lawmaking system.423
Ackerman and Katyal critique their rival Akhil Amar for maki
claims unsupported by evidence from the contemporaneous de-
bates.424 Amar’s theory (alleging a breach of treaty obligatio
should be rejected, they say, because there wasn’t “any eviden
that Americans took Amar’s argument seriously.”425 Howeve
in their own article, despite their self-described exhaustive r
search,426 they cite very slender evidence that anyone at the tim
421. Ackerman & Katyal, supra note 14, at 480.
422. If this theory was advanced in this manner in an appellate brief, it is clear
that it would be dismissed under the familiar standard for undeveloped claims.
See Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59
F.3d 284, 293–94 (1st Cir. 1995) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.
It is not sufficient for a party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its bones.”); United States v. Hayter Oil
Co., 51 F.3d 1265, 1269 (6th Cir. 1995) (finding that defendants waived issue by
making conclusory statements and failing to develop their theory).
423. Ackerman & Katyal, supra note 14, at 497.
424. See, e.g., id. at 488 n.35.
425. Id. at 539–540.
426.
Id. at 540 (”[W]e have amassed an enormous body of evidence expressing
legalistic objections to the Federalists’ unconventional activities.”).
133
128
Harvard Journal of Law & Public Policy
[Vol. 40
Ackerman and Katyal allege “three legal obstacles” that pur-
portedly demonstrate the illegality of the Founders’ conduct:
Problems with the Articles of Confederation
Problems with the Convention
Problems with State Constitutions418
The professors allege ten distinct violations under these three
categories.419 However, their “three legal obstacles” and ten
specific allegations are not well-organized. A more logical or-
ganization of the professors’ legal arguments would be:
The process was illegal from beginning to end be-
cause Article XIII provided the exclusive method for
amending the form of governance of the United
States.
The delegates went beyond the call of the convention
containing their controlling instructions.
The method of ratification chosen violated both Arti-
cle XIII and several state constitutions.420
418. Ackerman & Katyal, supra note 14, at 475–487.
419. See id. at 478–486. The violations are as follows: (1) the Constitution invited
secession; (2) the Constitutional Convention ignored the role the Articles “ex-
pressly assigned to the Continental Congress” for approving subsequent amend-
ments; (3) the Founders cut the state legislatures out of the ratifying process; (4)
the entire process was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision;” (5) the Convention was a secessionist body;
(6) Delaware’s delegation “recognized that it was acting in contempt of its com-
mission;” (7) the delegates had been “charged” by the “Continental Congress” to
meet “for the sole and express purpose of revising the Articles” and the delegates
went “beyond their legal authority when they ripped up the Articles and pro-
posed an entirely new text;” (8) the delegations from New York, Connecticut, and
Massachusetts clearly violated their commissions; (9) all states that gave instruc-
tions as to the mode of ratification specified approval by Congress followed by
approval of the state legislatures—which was not followed; and (10) the Suprem-
acy Clause of the Constitution created an implied conflict with and de facto
change in several state constitutional amendments. Thus, the process for obtain-
ing amendments to state constitutions was applicable and was not followed. Id.
420. One of their arguments does not fit this outline but can be easily dismissed.
The contention that the Convention was secessionist is nothing more than a politi-
cal criticism and does not rise to the level of a serious legal argument. Moreover, it
is a stretch to contend that it is a secessionist act to invite all states to a convention
to discuss possible changes to the form of government. The fact that one state
chose not to attend does not alter the nature of the Convention. If Rhode Island
had been excluded by the others from the drafting convention it would plausibly
raise the specter of secessionism. Describing Rhode Island’s refusal to attend the
Convention as an act of secession by the other twelve states is facially without
merit.
No. 1]
Defying Conventional Wisdom 129
1. The Contention that the Whole Process Was Illegal under the
Articles of Confederation May Be Summarily Dismissed
Although the professors’ argument that the entire process
was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision”421 made the list of their ten
specific illegalities, a reader must hunt diligently through the
remainder of their article for any supporting argumentation.
Random statements in support of this argument are sprinkled
throughout the article, but if this theory is to be considered se-
riously, it demands robust development and careful considera-
tion rather than scattered and disjointed assertions.422
The longest single presentation of this theory is a mere two
sentences that refer to the Annapolis Convention:
The commissioners had taken upon themselves the right
to propose a fundamental change in constitutional law.
While Article XIII had confided exclusive authority in
Congress to propose amendments, Annapolis was making
an end run around the existing institution by calling for a
second body, the convention, unknown to the Confedera-
cy’s higher lawmaking system.423
Ackerman and Katyal critique their rival Akhil Amar for making
claims unsupported by evidence from the contemporaneous de-
bates.424 Amar’s theory (alleging a breach of treaty obligations)
should be rejected, they say, because there wasn’t “any evidence
that Americans took Amar’s argument seriously.”425 However,
in their own article, despite their self-described exhaustive re-
search,426 they cite very slender evidence that anyone at the time
421. Ackerman & Katyal, supra note 14, at 480.
422. If this theory was advanced in this manner in an appellate brief, it is clear
that it would be dismissed under the familiar standard for undeveloped claims.
See Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59
F.3d 284, 293–94 (1st Cir. 1995) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.
It is not sufficient for a party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its bones.”); United States v. Hayter Oil
Co., 51 F.3d 1265, 1269 (6th Cir. 1995) (finding that defendants waived issue by
making conclusory statements and failing to develop their theory).
423. Ackerman & Katyal, supra note 14, at 497.
424. See, e.g., id. at 488 n.35.
425. Id. at 539–540.
426.
Id. at 540 (”[W]e have amassed an enormous body of evidence expressing
legalistic objections to the Federalists’ unconventional activities.”).
128
Harvard Journal of Law & Public Policy
[Vol. 40
Ackerman and Katyal allege “three legal obstacles” that pur-
portedly demonstrate the illegality of the Founders’ conduct:
Problems with the Articles of Confederation
Problems with the Convention
Problems with State Constitutions418
The professors allege ten distinct violations under these three
categories.419 However, their “three legal obstacles” and ten
specific allegations are not well-organized. A more logical or-
ganization of the professors’ legal arguments would be:
The process was illegal from beginning to end be-
cause Article XIII provided the exclusive method for
amending the form of governance of the United
States.
The delegates went beyond the call of the convention
containing their controlling instructions.
The method of ratification chosen violated both Arti-
cle XIII and several state constitutions.420
418. Ackerman & Katyal, supra note 14, at 475–487.
419. See id. at 478–486. The violations are as follows: (1) the Constitution invited
secession; (2) the Constitutional Convention ignored the role the Articles “ex-
pressly assigned to the Continental Congress” for approving subsequent amend-
ments; (3) the Founders cut the state legislatures out of the ratifying process; (4)
the entire process was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision;” (5) the Convention was a secessionist body;
(6) Delaware’s delegation “recognized that it was acting in contempt of its com-
mission;” (7) the delegates had been “charged” by the “Continental Congress” to
meet “for the sole and express purpose of revising the Articles” and the delegates
went “beyond their legal authority when they ripped up the Articles and pro-
posed an entirely new text;” (8) the delegations from New York, Connecticut, and
Massachusetts clearly violated their commissions; (9) all states that gave instruc-
tions as to the mode of ratification specified approval by Congress followed by
approval of the state legislatures—which was not followed; and (10) the Suprem-
acy Clause of the Constitution created an implied conflict with and de facto
change in several state constitutional amendments. Thus, the process for obtain-
ing amendments to state constitutions was applicable and was not followed. Id.
420. One of their arguments does not fit this outline but can be easily dismissed.
The contention that the Convention was secessionist is nothing more than a politi-
cal criticism and does not rise to the level of a serious legal argument. Moreover, it
is a stretch to contend that it is a secessionist act to invite all states to a convention
to discuss possible changes to the form of government. The fact that one state
chose not to attend does not alter the nature of the Convention. If Rhode Island
had been excluded by the others from the drafting convention it would plausibly
raise the specter of secessionism. Describing Rhode Island’s refusal to attend the
Convention as an act of secession by the other twelve states is facially without
merit.
No. 1]
Defying Conventional Wisdom 129
1. The Contention that the Whole Process Was Illegal under the
Articles of Confederation May Be Summarily Dismissed
Although the professors’ argument that the entire proces
was done “in the face of the Articles’ express claim to specify
the exclusive means for its revision”421 made the list of their te
specific illegalities, a reader must hunt diligently through the
remainder of their article for any supporting argumentation.
Random statements in support of this argument are sprinkled
throughout the article, but if this theory is to be considered
riously, it demands robust development and careful considera-
tion rather than scattered and disjointed assertions.422
The longest single presentation of this theory is a mere tw
sentences that refer to the Annapolis Convention:
The commissioners had taken upon themselves the right
to propose a fundamental change in constitutional law.
While Article XIII had confided exclusive authority in
Congress to propose amendments, Annapolis was making
an end run around the existing institution by calling for a
second body, the convention, unknown to the Confedera-
cy’s higher lawmaking system.423
Ackerman and Katyal critique their rival Akhil Amar for maki
claims unsupported by evidence from the contemporaneous de-
bates.424 Amar’s theory (alleging a breach of treaty obligatio
should be rejected, they say, because there wasn’t “any eviden
that Americans took Amar’s argument seriously.”425 Howeve
in their own article, despite their self-described exhaustive r
search,426 they cite very slender evidence that anyone at the tim
421. Ackerman & Katyal, supra note 14, at 480.
422. If this theory was advanced in this manner in an appellate brief, it is clear
that it would be dismissed under the familiar standard for undeveloped claims.
See Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59
F.3d 284, 293–94 (1st Cir. 1995) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.
It is not sufficient for a party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its bones.”); United States v. Hayter Oil
Co., 51 F.3d 1265, 1269 (6th Cir. 1995) (finding that defendants waived issue by
making conclusory statements and failing to develop their theory).
423. Ackerman & Katyal, supra note 14, at 497.
424. See, e.g., id. at 488 n.35.
425. Id. at 539–540.
426.
Id. at 540 (”[W]e have amassed an enormous body of evidence expressing
legalistic objections to the Federalists’ unconventional activities.”).
134
130
Harvard Journal of Law & Public Policy
[Vol. 40
even raised the argument that the entire Convention was illegal
from the beginning. And they offer no evidence at all that Amer-
icans at the time took the argument seriously.
The professors’ meager suggestion of contemporary support
comes from a statement on the floor of the Massachusetts legis-
lature by Rufus King:
The Confederation was the act of the people. No part could
be altered but by consent of Congress and confirmation of
the several Legislatures. Congress therefore ought to make
the examination first, because, if it was done by a conven-
tion, no Legislature could have a right to confirm it . . . . Be-
sides, if Congress should not agree upon a report of a con-
vention, the most fatal consequences might follow. Congress
therefore were the proper body to propose alterations . . . .427
But King stopped well short of the argument advanced by
Ackerman and Katyal. He did not say that it was illegal to call
a convention of states to draft amendments. Rather he began
with the premise that nothing could be finally altered except by
the consent of Congress and all of the states. In light of the legal
requirement for ratification, King makes a political argument
that it is wiser to have Congress make the proposed alterations
in the first place.
This explanation of King’s argument makes much more
sense in light of the fact that he was the co-author the success-
ful motion in Congress to endorse the Constitutional Conven-
tion on February 21st, 1787.428 The professors acknowledge
King’s role in the congressional resolution429 but shrug it off
without explanation—as if King had somehow been swept into
the vortex of Madison and Hamilton’s grand revolutionary
conspiracy. If King believed it was illegal for a convention to be
called, he was a hypocrite of the first order by making the mo-
tion. But a wise politician can change his views on the practi-
cality of a particular approach without duplicity. The better
reading of King’s words and actions leads to the conclusion
that he believed it was illegal to adopt changes without ap-
proval of Congress and the states.
427. Id. at 501 (quoting Proceedings of Government, Boston, October 12, WORCESTER
MAGAZINE, 3rd week of Oct. 1786, at 353).
428. Ackerman & Kaytal, supra note 14, at 503.
429. See id. at 501.
No. 1]
Defying Conventional Wisdom 131
Moreover, in the footnote citing the original source of
King’s speech in the Massachusetts legislature, the profes-
sors quote Nathan Dane on this topic.430 Dane, also speaking
in the state legislature, said:
[A] question arises as to the best mode of obtaining these altera-
tions, whether by the means of a convention, or by the constitu-
tional mode pointed out in the 13th article of the confederation.
In favour of a convention, it is said, that the States will probably
place more confidence in their doings, and that the alterations
there may be better adjusted, than in Congress.431
Far from arguing that Article XIII was the exclusive path for
changes, Dane clearly posits a convention as a legitimate alter-
native. The criteria for choosing one or the other, Dane sug-
gests, is simply political expediency.
I have found two contemporary critics of the Constitution
who did in fact make the argument advanced by Ackerman
and Katyal. In the New York ratification convention, Abraham
Yates unleashed a scattershot attack on the legality of the entire
process. He argued that on February 19th, 1787, the New York
legislature violated the state constitution when it instructed its
delegates in Congress to move an act recommending the con-
vention.432 Moreover, Congress violated Article XIII when it
passed its resolution of approval on February 21st.433 Congress
again violated Article XIII, on September 28th, when it sent the
Constitution to the state legislatures.434 And the New York leg-
islature violated its Constitution when it approved the calling
of the ratification convention in February 1788.435 The best read-
ing of Yates is that he was an ardent Anti-Federalist and that he
was willing to make shotgun attacks that were a mix of politi-
cal and legal rhetoric designed to serve his political viewpoint.
Treating Yates as a legal purist—or even as someone who mer-
its consideration as a serious legal critic—overstates both his
arguments and his importance.
430. See id. at 501 n.72.
431. Id. (quoting Nathan Dane, Speech to Massachusetts House of Representa-
tives, in Proceedings of Government, NEWPORT MERCURY, Nov. 17, 1786).
432.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1156.
433. Id.
434. Id. at 1157.
435. Id.
130
Harvard Journal of Law & Public Policy
[Vol. 40
even raised the argument that the entire Convention was illegal
from the beginning. And they offer no evidence at all that Amer-
icans at the time took the argument seriously.
The professors’ meager suggestion of contemporary support
comes from a statement on the floor of the Massachusetts legis-
lature by Rufus King:
The Confederation was the act of the people. No part could
be altered but by consent of Congress and confirmation of
the several Legislatures. Congress therefore ought to make
the examination first, because, if it was done by a conven-
tion, no Legislature could have a right to confirm it . . . . Be-
sides, if Congress should not agree upon a report of a con-
vention, the most fatal consequences might follow. Congress
therefore were the proper body to propose alterations . . . .427
But King stopped well short of the argument advanced by
Ackerman and Katyal. He did not say that it was illegal to call
a convention of states to draft amendments. Rather he began
with the premise that nothing could be finally altered except by
the consent of Congress and all of the states. In light of the legal
requirement for ratification, King makes a political argument
that it is wiser to have Congress make the proposed alterations
in the first place.
This explanation of King’s argument makes much more
sense in light of the fact that he was the co-author the success-
ful motion in Congress to endorse the Constitutional Conven-
tion on February 21st, 1787.428 The professors acknowledge
King’s role in the congressional resolution429 but shrug it off
without explanation—as if King had somehow been swept into
the vortex of Madison and Hamilton’s grand revolutionary
conspiracy. If King believed it was illegal for a convention to be
called, he was a hypocrite of the first order by making the mo-
tion. But a wise politician can change his views on the practi-
cality of a particular approach without duplicity. The better
reading of King’s words and actions leads to the conclusion
that he believed it was illegal to adopt changes without ap-
proval of Congress and the states.
427. Id. at 501 (quoting Proceedings of Government, Boston, October 12, WORCESTER
MAGAZINE, 3rd week of Oct. 1786, at 353).
428. Ackerman & Kaytal, supra note 14, at 503.
429. See id. at 501.
No. 1]
Defying Conventional Wisdom 131
Moreover, in the footnote citing the original source o
King’s speech in the Massachusetts legislature, the profes-
sors quote Nathan Dane on this topic.430 Dane, also speaking
in the state legislature, said:
[A] question arises as to the best mode of obtaining these altera-
tions, whether by the means of a convention, or by the constitu-
tional mode pointed out in the 13th article of the confederation.
In favour of a convention, it is said, that the States will probably
place more confidence in their doings, and that the alterations
there may be better adjusted, than in Congress.431
Far from arguing that Article XIII was the exclusive path
changes, Dane clearly posits a convention as a legitimate alt
native. The criteria for choosing one or the other, Dane sug-
gests, is simply political expediency.
I have found two contemporary critics of the Constitution
who did in fact make the argument advanced by Ackerman
and Katyal. In the New York ratification convention, Abraham
Yates unleashed a scattershot attack on the legality of the ent
process. He argued that on February 19th, 1787, the New York
legislature violated the state constitution when it instructed i
delegates in Congress to move an act recommending the con-
vention.432 Moreover, Congress violated Article XIII when
passed its resolution of approval on February 21st.433 Congress
again violated Article XIII, on September 28th, when it sent the
Constitution to the state legislatures.434 And the New York leg
islature violated its Constitution when it approved the calling
of the ratification convention in February 1788.435 The best read-
ing of Yates is that he was an ardent Anti-Federalist and that he
was willing to make shotgun attacks that were a mix of pol
cal and legal rhetoric designed to serve his political viewpoi
Treating Yates as a legal purist—or even as someone who mer-
its consideration as a serious legal critic—overstates both his
arguments and his importance.
430. See id. at 501 n.72.
431. Id. (quoting Nathan Dane, Speech to Massachusetts House of Representa-
tives, in Proceedings of Government, NEWPORT MERCURY, Nov. 17, 1786).
432.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153
1156.
433. Id.
434. Id. at 1157.
435. Id.
135
130
Harvard Journal of Law & Public Policy
[Vol. 40
even raised the argument that the entire Convention was illegal
from the beginning. And they offer no evidence at all that Amer-
icans at the time took the argument seriously.
The professors’ meager suggestion of contemporary support
comes from a statement on the floor of the Massachusetts legis-
lature by Rufus King:
The Confederation was the act of the people. No part could
be altered but by consent of Congress and confirmation of
the several Legislatures. Congress therefore ought to make
the examination first, because, if it was done by a conven-
tion, no Legislature could have a right to confirm it . . . . Be-
sides, if Congress should not agree upon a report of a con-
vention, the most fatal consequences might follow. Congress
therefore were the proper body to propose alterations . . . .427
But King stopped well short of the argument advanced by
Ackerman and Katyal. He did not say that it was illegal to call
a convention of states to draft amendments. Rather he began
with the premise that nothing could be finally altered except by
the consent of Congress and all of the states. In light of the legal
requirement for ratification, King makes a political argument
that it is wiser to have Congress make the proposed alterations
in the first place.
This explanation of King’s argument makes much more
sense in light of the fact that he was the co-author the success-
ful motion in Congress to endorse the Constitutional Conven-
tion on February 21st, 1787.428 The professors acknowledge
King’s role in the congressional resolution429 but shrug it off
without explanation—as if King had somehow been swept into
the vortex of Madison and Hamilton’s grand revolutionary
conspiracy. If King believed it was illegal for a convention to be
called, he was a hypocrite of the first order by making the mo-
tion. But a wise politician can change his views on the practi-
cality of a particular approach without duplicity. The better
reading of King’s words and actions leads to the conclusion
that he believed it was illegal to adopt changes without ap-
proval of Congress and the states.
427. Id. at 501 (quoting Proceedings of Government, Boston, October 12, WORCESTER
MAGAZINE, 3rd week of Oct. 1786, at 353).
428. Ackerman & Kaytal, supra note 14, at 503.
429. See id. at 501.
No. 1]
Defying Conventional Wisdom 131
Moreover, in the footnote citing the original source of
King’s speech in the Massachusetts legislature, the profes-
sors quote Nathan Dane on this topic.430 Dane, also speaking
in the state legislature, said:
[A] question arises as to the best mode of obtaining these altera-
tions, whether by the means of a convention, or by the constitu-
tional mode pointed out in the 13th article of the confederation.
In favour of a convention, it is said, that the States will probably
place more confidence in their doings, and that the alterations
there may be better adjusted, than in Congress.431
Far from arguing that Article XIII was the exclusive path for
changes, Dane clearly posits a convention as a legitimate alter-
native. The criteria for choosing one or the other, Dane sug-
gests, is simply political expediency.
I have found two contemporary critics of the Constitution
who did in fact make the argument advanced by Ackerman
and Katyal. In the New York ratification convention, Abraham
Yates unleashed a scattershot attack on the legality of the entire
process. He argued that on February 19th, 1787, the New York
legislature violated the state constitution when it instructed its
delegates in Congress to move an act recommending the con-
vention.432 Moreover, Congress violated Article XIII when it
passed its resolution of approval on February 21st.433 Congress
again violated Article XIII, on September 28th, when it sent the
Constitution to the state legislatures.434 And the New York leg-
islature violated its Constitution when it approved the calling
of the ratification convention in February 1788.435 The best read-
ing of Yates is that he was an ardent Anti-Federalist and that he
was willing to make shotgun attacks that were a mix of politi-
cal and legal rhetoric designed to serve his political viewpoint.
Treating Yates as a legal purist—or even as someone who mer-
its consideration as a serious legal critic—overstates both his
arguments and his importance.
430. See id. at 501 n.72.
431. Id. (quoting Nathan Dane, Speech to Massachusetts House of Representa-
tives, in Proceedings of Government, NEWPORT MERCURY, Nov. 17, 1786).
432.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153,
1156.
433. Id.
434. Id. at 1157.
435. Id.
130
Harvard Journal of Law & Public Policy
[Vol. 40
even raised the argument that the entire Convention was illegal
from the beginning. And they offer no evidence at all that Amer-
icans at the time took the argument seriously.
The professors’ meager suggestion of contemporary support
comes from a statement on the floor of the Massachusetts legis-
lature by Rufus King:
The Confederation was the act of the people. No part could
be altered but by consent of Congress and confirmation of
the several Legislatures. Congress therefore ought to make
the examination first, because, if it was done by a conven-
tion, no Legislature could have a right to confirm it . . . . Be-
sides, if Congress should not agree upon a report of a con-
vention, the most fatal consequences might follow. Congress
therefore were the proper body to propose alterations . . . .427
But King stopped well short of the argument advanced by
Ackerman and Katyal. He did not say that it was illegal to call
a convention of states to draft amendments. Rather he began
with the premise that nothing could be finally altered except by
the consent of Congress and all of the states. In light of the legal
requirement for ratification, King makes a political argument
that it is wiser to have Congress make the proposed alterations
in the first place.
This explanation of King’s argument makes much more
sense in light of the fact that he was the co-author the success-
ful motion in Congress to endorse the Constitutional Conven-
tion on February 21st, 1787.428 The professors acknowledge
King’s role in the congressional resolution429 but shrug it off
without explanation—as if King had somehow been swept into
the vortex of Madison and Hamilton’s grand revolutionary
conspiracy. If King believed it was illegal for a convention to be
called, he was a hypocrite of the first order by making the mo-
tion. But a wise politician can change his views on the practi-
cality of a particular approach without duplicity. The better
reading of King’s words and actions leads to the conclusion
that he believed it was illegal to adopt changes without ap-
proval of Congress and the states.
427. Id. at 501 (quoting Proceedings of Government, Boston, October 12, WORCESTER
MAGAZINE, 3rd week of Oct. 1786, at 353).
428. Ackerman & Kaytal, supra note 14, at 503.
429. See id. at 501.
No. 1]
Defying Conventional Wisdom 131
Moreover, in the footnote citing the original source o
King’s speech in the Massachusetts legislature, the profes-
sors quote Nathan Dane on this topic.430 Dane, also speaking
in the state legislature, said:
[A] question arises as to the best mode of obtaining these altera-
tions, whether by the means of a convention, or by the constitu-
tional mode pointed out in the 13th article of the confederation.
In favour of a convention, it is said, that the States will probably
place more confidence in their doings, and that the alterations
there may be better adjusted, than in Congress.431
Far from arguing that Article XIII was the exclusive path
changes, Dane clearly posits a convention as a legitimate alt
native. The criteria for choosing one or the other, Dane sug-
gests, is simply political expediency.
I have found two contemporary critics of the Constitution
who did in fact make the argument advanced by Ackerman
and Katyal. In the New York ratification convention, Abraham
Yates unleashed a scattershot attack on the legality of the ent
process. He argued that on February 19th, 1787, the New York
legislature violated the state constitution when it instructed i
delegates in Congress to move an act recommending the con-
vention.432 Moreover, Congress violated Article XIII when
passed its resolution of approval on February 21st.433 Congress
again violated Article XIII, on September 28th, when it sent the
Constitution to the state legislatures.434 And the New York leg
islature violated its Constitution when it approved the calling
of the ratification convention in February 1788.435 The best read-
ing of Yates is that he was an ardent Anti-Federalist and that he
was willing to make shotgun attacks that were a mix of pol
cal and legal rhetoric designed to serve his political viewpoi
Treating Yates as a legal purist—or even as someone who mer-
its consideration as a serious legal critic—overstates both his
arguments and his importance.
430. See id. at 501 n.72.
431. Id. (quoting Nathan Dane, Speech to Massachusetts House of Representa-
tives, in Proceedings of Government, NEWPORT MERCURY, Nov. 17, 1786).
432.
Sydney, N.Y.J., June 13–14, 1788, reprinted in 20 DHRC, supra note 4, at 1153
1156.
433. Id.
434. Id. at 1157.
435. Id.
136
132
Harvard Journal of Law & Public Policy
[Vol. 40
Moreover, the standard that Ackerman and Katyal raise
against Amar is truly appropriate: did Americans at the time
pay any serious attention to these arguments? Yates’ position
was never confirmed by the vote of any convention or legisla-
tive body. Not Congress, not the Constitutional Convention,
not any ratification convention, and not any state legislature.
New York, Massachusetts, Rhode Island, and North Carolina
all had problems with the adoption of the Constitution at one
time or another. Not even in any of these states was there ever
a successful resolution that condemned the very calling of a
Convention from its inception.
The void-from-the-beginning position did have one other
contemporary source of support not mentioned by the profes-
sors. The Town Meeting of Great Barrington, Massachusetts
approved the following resolution as an instruction to their
delegate to the state ratification convention:
First as the Constitution of this Commonwealth Invests the
Legslature [sic] with no such Power as sending Delligates
[sic] To a Convention for the purpose of framing a New Sys-
tem of Fedderal [sic] Government—we conceive that the
Constitution now offered us is Destituce [sic] of any Con-
stituenal [sic] authority either states or fodderal [sic].436
The small town in Massachusetts, relying primarily on its state
constitution, took the position that the legislature had no pow-
er to appoint delegates to the Constitutional Convention. The
additional contention that the proposed Constitution was
“Destituce” of any federal “Constituenal” authority was sum-
marily made. This paragraph represents the pinnacle of con-
temporary acceptance of the Ackerman/Katyal theory. Such
scant evidence fails to meet their own standard requiring evi-
dence that “Americans took [their] argument seriously.”437
There was nearly universal acceptance of the idea that a
Convention was a proper alternative to Congress for drafting
proposed changes, as Dane’s state legislative speech demon-
strates. Moreover, no one believed that the Convention had any
power to make law. They merely had the power to make a rec-
ommendation. As James Wilson said:
436. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
437. Ackerman & Katyal, supra note 14, at 539.
No. 1]
Defying Conventional Wisdom 133
I think the late Convention have done nothing beyond
their powers. The fact is, they have exercised no power at
all. And in point of validity, this Constitution, proposed
by them for the government of the United States, claims
no more than a production of the same nature would
claim, flowing from a private pen.438
Second, the overwhelming understanding was that the
states—which were clearly in possession of ultimate political
power—had the power to convene a convention if they wished.
In fact, the clear supremacy of the states was the very reason a
new Constitution was needed. The States created the Union.
The States created the Articles of Confederation. The States ap-
pointed the members of Congress. The state legislatures could
and did issue binding directions to their members in Congress.
Indeed, the February 21st, 1787, resolution by Congress ap-
proving the Convention was the result of a process started by
the New York congressional delegation who were acting in
obedience to directions received from their legislature.439
The States called the Convention. The States appointed dele-
gates to the convention and gave them instructions on the
scope of their authority and quorum rules for casting the single
vote of their state. Natelson records that from “1774 until 1787,
there were at least a dozen inter-colonial or interstate conven-
tions.”440 Convening conventions of the states to recommend
solutions for problems was common political practice. The ar-
gument that it was a violation of Article XIII for the states to
convene a convention to propose changes in the Constitution
was made by a scant few at the time and accepted only by the
single town of Great Barrington. Ackerman and Katyal’s con-
tention that the convention was void ab initio cannot bear up
under focused scrutiny.
438. Convention Debates, A.M. (Dec. 4, 1787), reprinted in 2 DHRC, supra note 4,
at 483.
439. See 19 DHRC, supra note 4, at xl; 32 JOURNALS OF CONGRESS, supra note 70,
at 72.
440. Robert Natelson, James Madison and the Constitution’s “Convention for Propos-
ing Amendments”, 45 AKRON L. REV. 431, 434 (2012).
132
Harvard Journal of Law & Public Policy
[Vol. 40
Moreover, the standard that Ackerman and Katyal raise
against Amar is truly appropriate: did Americans at the time
pay any serious attention to these arguments? Yates’ position
was never confirmed by the vote of any convention or legisla-
tive body. Not Congress, not the Constitutional Convention,
not any ratification convention, and not any state legislature.
New York, Massachusetts, Rhode Island, and North Carolina
all had problems with the adoption of the Constitution at one
time or another. Not even in any of these states was there ever
a successful resolution that condemned the very calling of a
Convention from its inception.
The void-from-the-beginning position did have one other
contemporary source of support not mentioned by the profes-
sors. The Town Meeting of Great Barrington, Massachusetts
approved the following resolution as an instruction to their
delegate to the state ratification convention:
First as the Constitution of this Commonwealth Invests the
Legslature [sic] with no such Power as sending Delligates
[sic] To a Convention for the purpose of framing a New Sys-
tem of Fedderal [sic] Government—we conceive that the
Constitution now offered us is Destituce [sic] of any Con-
stituenal [sic] authority either states or fodderal [sic].436
The small town in Massachusetts, relying primarily on its state
constitution, took the position that the legislature had no pow-
er to appoint delegates to the Constitutional Convention. The
additional contention that the proposed Constitution was
“Destituce” of any federal “Constituenal” authority was sum-
marily made. This paragraph represents the pinnacle of con-
temporary acceptance of the Ackerman/Katyal theory. Such
scant evidence fails to meet their own standard requiring evi-
dence that “Americans took [their] argument seriously.”437
There was nearly universal acceptance of the idea that a
Convention was a proper alternative to Congress for drafting
proposed changes, as Dane’s state legislative speech demon-
strates. Moreover, no one believed that the Convention had any
power to make law. They merely had the power to make a rec-
ommendation. As James Wilson said:
436. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
437. Ackerman & Katyal, supra note 14, at 539.
No. 1]
Defying Conventional Wisdom 133
I think the late Convention have done nothing beyond
their powers. The fact is, they have exercised no power at
all. And in point of validity, this Constitution, proposed
by them for the government of the United States, claims
no more than a production of the same nature would
claim, flowing from a private pen.438
Second, the overwhelming understanding was that t
states—which were clearly in possession of ultimate political
power—had the power to convene a convention if they wished.
In fact, the clear supremacy of the states was the very reason a
new Constitution was needed. The States created the Union.
The States created the Articles of Confederation. The States a
pointed the members of Congress. The state legislatures could
and did issue binding directions to their members in Congre
Indeed, the February 21st, 1787, resolution by Congress ap-
proving the Convention was the result of a process started
the New York congressional delegation who were acting in
obedience to directions received from their legislature.439
The States called the Convention. The States appointed dele-
gates to the convention and gave them instructions on the
scope of their authority and quorum rules for casting the sin
vote of their state. Natelson records that from “1774 until 1787,
there were at least a dozen inter-colonial or interstate conven-
tions.”440 Convening conventions of the states to recommend
solutions for problems was common political practice. The
gument that it was a violation of Article XIII for the states
convene a convention to propose changes in the Constituti
was made by a scant few at the time and accepted only by the
single town of Great Barrington. Ackerman and Katyal’s co
tention that the convention was void ab initio cannot bear
under focused scrutiny.
438. Convention Debates, A.M. (Dec. 4, 1787), reprinted in 2 DHRC, supra note 4,
at 483.
439. See 19 DHRC, supra note 4, at xl; 32 JOURNALS OF CONGRESS, supra note 70
at 72.
440. Robert Natelson, James Madison and the Constitution’s “Convention for Propos-
ing Amendments”, 45 AKRON L. REV. 431, 434 (2012).
137
132
Harvard Journal of Law & Public Policy
[Vol. 40
Moreover, the standard that Ackerman and Katyal raise
against Amar is truly appropriate: did Americans at the time
pay any serious attention to these arguments? Yates’ position
was never confirmed by the vote of any convention or legisla-
tive body. Not Congress, not the Constitutional Convention,
not any ratification convention, and not any state legislature.
New York, Massachusetts, Rhode Island, and North Carolina
all had problems with the adoption of the Constitution at one
time or another. Not even in any of these states was there ever
a successful resolution that condemned the very calling of a
Convention from its inception.
The void-from-the-beginning position did have one other
contemporary source of support not mentioned by the profes-
sors. The Town Meeting of Great Barrington, Massachusetts
approved the following resolution as an instruction to their
delegate to the state ratification convention:
First as the Constitution of this Commonwealth Invests the
Legslature [sic] with no such Power as sending Delligates
[sic] To a Convention for the purpose of framing a New Sys-
tem of Fedderal [sic] Government—we conceive that the
Constitution now offered us is Destituce [sic] of any Con-
stituenal [sic] authority either states or fodderal [sic].436
The small town in Massachusetts, relying primarily on its state
constitution, took the position that the legislature had no pow-
er to appoint delegates to the Constitutional Convention. The
additional contention that the proposed Constitution was
“Destituce” of any federal “Constituenal” authority was sum-
marily made. This paragraph represents the pinnacle of con-
temporary acceptance of the Ackerman/Katyal theory. Such
scant evidence fails to meet their own standard requiring evi-
dence that “Americans took [their] argument seriously.”437
There was nearly universal acceptance of the idea that a
Convention was a proper alternative to Congress for drafting
proposed changes, as Dane’s state legislative speech demon-
strates. Moreover, no one believed that the Convention had any
power to make law. They merely had the power to make a rec-
ommendation. As James Wilson said:
436. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
437. Ackerman & Katyal, supra note 14, at 539.
No. 1]
Defying Conventional Wisdom 133
I think the late Convention have done nothing beyond
their powers. The fact is, they have exercised no power at
all. And in point of validity, this Constitution, proposed
by them for the government of the United States, claims
no more than a production of the same nature would
claim, flowing from a private pen.438
Second, the overwhelming understanding was that the
states—which were clearly in possession of ultimate political
power—had the power to convene a convention if they wished.
In fact, the clear supremacy of the states was the very reason a
new Constitution was needed. The States created the Union.
The States created the Articles of Confederation. The States ap-
pointed the members of Congress. The state legislatures could
and did issue binding directions to their members in Congress.
Indeed, the February 21st, 1787, resolution by Congress ap-
proving the Convention was the result of a process started by
the New York congressional delegation who were acting in
obedience to directions received from their legislature.439
The States called the Convention. The States appointed dele-
gates to the convention and gave them instructions on the
scope of their authority and quorum rules for casting the single
vote of their state. Natelson records that from “1774 until 1787,
there were at least a dozen inter-colonial or interstate conven-
tions.”440 Convening conventions of the states to recommend
solutions for problems was common political practice. The ar-
gument that it was a violation of Article XIII for the states to
convene a convention to propose changes in the Constitution
was made by a scant few at the time and accepted only by the
single town of Great Barrington. Ackerman and Katyal’s con-
tention that the convention was void ab initio cannot bear up
under focused scrutiny.
438. Convention Debates, A.M. (Dec. 4, 1787), reprinted in 2 DHRC, supra note 4,
at 483.
439. See 19 DHRC, supra note 4, at xl; 32 JOURNALS OF CONGRESS, supra note 70,
at 72.
440. Robert Natelson, James Madison and the Constitution’s “Convention for Propos-
ing Amendments”, 45 AKRON L. REV. 431, 434 (2012).
132
Harvard Journal of Law & Public Policy
[Vol. 40
Moreover, the standard that Ackerman and Katyal raise
against Amar is truly appropriate: did Americans at the time
pay any serious attention to these arguments? Yates’ position
was never confirmed by the vote of any convention or legisla-
tive body. Not Congress, not the Constitutional Convention,
not any ratification convention, and not any state legislature.
New York, Massachusetts, Rhode Island, and North Carolina
all had problems with the adoption of the Constitution at one
time or another. Not even in any of these states was there ever
a successful resolution that condemned the very calling of a
Convention from its inception.
The void-from-the-beginning position did have one other
contemporary source of support not mentioned by the profes-
sors. The Town Meeting of Great Barrington, Massachusetts
approved the following resolution as an instruction to their
delegate to the state ratification convention:
First as the Constitution of this Commonwealth Invests the
Legslature [sic] with no such Power as sending Delligates
[sic] To a Convention for the purpose of framing a New Sys-
tem of Fedderal [sic] Government—we conceive that the
Constitution now offered us is Destituce [sic] of any Con-
stituenal [sic] authority either states or fodderal [sic].436
The small town in Massachusetts, relying primarily on its state
constitution, took the position that the legislature had no pow-
er to appoint delegates to the Constitutional Convention. The
additional contention that the proposed Constitution was
“Destituce” of any federal “Constituenal” authority was sum-
marily made. This paragraph represents the pinnacle of con-
temporary acceptance of the Ackerman/Katyal theory. Such
scant evidence fails to meet their own standard requiring evi-
dence that “Americans took [their] argument seriously.”437
There was nearly universal acceptance of the idea that a
Convention was a proper alternative to Congress for drafting
proposed changes, as Dane’s state legislative speech demon-
strates. Moreover, no one believed that the Convention had any
power to make law. They merely had the power to make a rec-
ommendation. As James Wilson said:
436. Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at 959.
437. Ackerman & Katyal, supra note 14, at 539.
No. 1]
Defying Conventional Wisdom 133
I think the late Convention have done nothing beyond
their powers. The fact is, they have exercised no power at
all. And in point of validity, this Constitution, proposed
by them for the government of the United States, claims
no more than a production of the same nature would
claim, flowing from a private pen.438
Second, the overwhelming understanding was that t
states—which were clearly in possession of ultimate political
power—had the power to convene a convention if they wished.
In fact, the clear supremacy of the states was the very reason a
new Constitution was needed. The States created the Union.
The States created the Articles of Confederation. The States a
pointed the members of Congress. The state legislatures could
and did issue binding directions to their members in Congre
Indeed, the February 21st, 1787, resolution by Congress ap-
proving the Convention was the result of a process started
the New York congressional delegation who were acting in
obedience to directions received from their legislature.439
The States called the Convention. The States appointed dele-
gates to the convention and gave them instructions on the
scope of their authority and quorum rules for casting the sin
vote of their state. Natelson records that from “1774 until 1787,
there were at least a dozen inter-colonial or interstate conven-
tions.”440 Convening conventions of the states to recommend
solutions for problems was common political practice. The
gument that it was a violation of Article XIII for the states
convene a convention to propose changes in the Constituti
was made by a scant few at the time and accepted only by the
single town of Great Barrington. Ackerman and Katyal’s co
tention that the convention was void ab initio cannot bear
under focused scrutiny.
438. Convention Debates, A.M. (Dec. 4, 1787), reprinted in 2 DHRC, supra note 4,
at 483.
439. See 19 DHRC, supra note 4, at xl; 32 JOURNALS OF CONGRESS, supra note 70
at 72.
440. Robert Natelson, James Madison and the Constitution’s “Convention for Propos-
ing Amendments”, 45 AKRON L. REV. 431, 434 (2012).
138
134
Harvard Journal of Law & Public Policy
[Vol. 40
2. Conspiracy Theories and Character Attacks: Exploring the
Legality of the Delegates’ Conduct
Ackerman and Katyal paint a picture of the Federalists as
“dangerous revolutionaries”441 who “lacked the legal authori-
ty . . . to make such an end run”442 around the existing legal re-
quirements. Yet, here again, the professors make a scattershot
attack, failing to ever engage in a focused analysis of the ques-
tions of: (a) who called the convention; and (b) what were the
instructions given to the delegates. Some of their analytical dif-
ficulty seems to arise from the professors’ failure to make any
distinction between informal measures that suggest, support,
or endorse a convention and formal “calls” for a convention.443
a. The Call
The professors claim that in “calling for the Philadelphia
Convention, the Continental Congress had charged the dele-
gates to meet ‘for the sole and express purpose of revising the
Articles.’”444 Later, they say that the Continental Congress
“join[ed] the call for the convention.”445 In other places, they
say that the “commercial commissioners” at the Annapolis
Convention called the Convention.446 Then later, they describe
the Annapolis Convention with a bit more nuance: “[T]he
commissioners did not take decisive action unilaterally. They
merely called upon Congress and the thirteen state legislatures
to issue such calls.”447 The report language from Annapolis
clearly contradicts even this version of their assertion. The An-
napolis delegates asked their state legislatures to appoint
commissioners with broader powers and to use their good of-
fices to get other states to do the same.448 They sent copies of
441. Ackerman & Katyal, supra note 14, at 495.
442. Id. at 487.
443. See, e.g., id. at 486 (describing the Federalists’ general plan for ratification as
the “Federalists’ call for ratifying conventions”); id. at 498 (describing Hamilton’s
recommendation at Annapolis as a “dramatic call”).
444. Id. at 481; see also id. at 501 (“[King and Dane] would be the authors of the
congressional resolution calling upon the states to send delegates to Philadelph-
ia.”).
445. Id. at 483.
446. Id. at 496.
447. Id. at 497.
448. 1 ELLIOT’S DEBATES, supra note 23, at 118.
No. 1]
Defying Conventional Wisdom 135
their report both to Congress and to the Governors “from mo-
tives of respect.”449 By Ackerman and Katyal’s logic, it would
be equally valid to suggest that the Annapolis delegates asked
the thirteen governors to call a convention.
The professors review the historical sequence leading up to the
Convention without ever trying to conclusively answer the ques-
tion: Who formally called the convention? In their sequential nar-
rative, Ackerman and Katyal begin with efforts to amend the Ar-
ticles in 1781, move on to the Mount Vernon Conference between
Virginia and Maryland, then to the Annapolis Convention, then
to a discussion of the impact of Shay’s Rebellion, onto the Febru-
ary, 1787 resolution by Congress, a protest from Rhode Island,
and finally to the Constitutional Convention itself.450
There is a significant gap in this sequence. Ackerman and
Katyal do not give any consideration to the actions of the legis-
latures in actually calling for the Philadelphia Convention. This
failure is no mere oversight, since Federalist No. 40 expressly
contended that the delegates’ authority did not come from ei-
ther the Annapolis Convention or the resolution from the Con-
federation Congress—but from the several states.451 Moreover,
the professors themselves noted that the Annapolis Convention
had “called upon” both Congress and the thirteen state legisla-
tures to call the Convention.452 They duly discuss the role of
Congress but inexplicably fail to discuss the role of the state
legislatures. Avoiding this inconvenient set of facts relieves
them of the difficulty of explaining how Congress could issue
the official call for a convention when in fact, before Congress
acted, six states had already named the time and place, chosen
delegates, set the agenda, and had issued instructions to con-
trol their delegates’ actions in Philadelphia.
While this is the professors’ principal failure in describing the
sequence of events, their reference to “Rhode Island’s Protest” is
449. Id.
450. Ackerman & Katyal, supra note 14, at 489–514.
451. See THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed.,
1961) (“[B]y the assent . . . of the legislatures of the several states . . . a convention
of delegates, who shall have been appointed by the several states . . . .”); see also id.
at 249 (“The States would never have appointed a convention with so much so-
lemnity, nor described its objects with so much latitude, if some substantial reform
had not been in contemplation.”).
452. Ackerman & Katyal, supra note 14, at 497.
134
Harvard Journal of Law & Public Policy
[Vol. 40
2. Conspiracy Theories and Character Attacks: Exploring the
Legality of the Delegates’ Conduct
Ackerman and Katyal paint a picture of the Federalists as
“dangerous revolutionaries”441 who “lacked the legal authori-
ty . . . to make such an end run”442 around the existing legal re-
quirements. Yet, here again, the professors make a scattershot
attack, failing to ever engage in a focused analysis of the ques-
tions of: (a) who called the convention; and (b) what were the
instructions given to the delegates. Some of their analytical dif-
ficulty seems to arise from the professors’ failure to make any
distinction between informal measures that suggest, support,
or endorse a convention and formal “calls” for a convention.443
a. The Call
The professors claim that in “calling for the Philadelphia
Convention, the Continental Congress had charged the dele-
gates to meet ‘for the sole and express purpose of revising the
Articles.’”444 Later, they say that the Continental Congress
“join[ed] the call for the convention.”445 In other places, they
say that the “commercial commissioners” at the Annapolis
Convention called the Convention.446 Then later, they describe
the Annapolis Convention with a bit more nuance: “[T]he
commissioners did not take decisive action unilaterally. They
merely called upon Congress and the thirteen state legislatures
to issue such calls.”447 The report language from Annapolis
clearly contradicts even this version of their assertion. The An-
napolis delegates asked their state legislatures to appoint
commissioners with broader powers and to use their good of-
fices to get other states to do the same.448 They sent copies of
441. Ackerman & Katyal, supra note 14, at 495.
442. Id. at 487.
443. See, e.g., id. at 486 (describing the Federalists’ general plan for ratification as
the “Federalists’ call for ratifying conventions”); id. at 498 (describing Hamilton’s
recommendation at Annapolis as a “dramatic call”).
444. Id. at 481; see also id. at 501 (“[King and Dane] would be the authors of the
congressional resolution calling upon the states to send delegates to Philadelph-
ia.”).
445. Id. at 483.
446. Id. at 496.
447. Id. at 497.
448. 1 ELLIOT’S DEBATES, supra note 23, at 118.
No. 1]
Defying Conventional Wisdom 135
their report both to Congress and to the Governors “from mo-
tives of respect.”449 By Ackerman and Katyal’s logic, it would
be equally valid to suggest that the Annapolis delegates ask
the thirteen governors to call a convention.
The professors review the historical sequence leading up to t
Convention without ever trying to conclusively answer the qu
tion: Who formally called the convention? In their sequential na
rative, Ackerman and Katyal begin with efforts to amend the Ar
ticles in 1781, move on to the Mount Vernon Conference betwee
Virginia and Maryland, then to the Annapolis Convention, th
to a discussion of the impact of Shay’s Rebellion, onto the Feb
ary, 1787 resolution by Congress, a protest from Rhode Island,
and finally to the Constitutional Convention itself.450
There is a significant gap in this sequence. Ackerman and
Katyal do not give any consideration to the actions of the legis-
latures in actually calling for the Philadelphia Convention. This
failure is no mere oversight, since Federalist No. 40 expressly
contended that the delegates’ authority did not come from ei-
ther the Annapolis Convention or the resolution from the Con-
federation Congress—but from the several states.451 Moreover,
the professors themselves noted that the Annapolis Convention
had “called upon” both Congress and the thirteen state legisla-
tures to call the Convention.452 They duly discuss the role of
Congress but inexplicably fail to discuss the role of the state
legislatures. Avoiding this inconvenient set of facts relieves
them of the difficulty of explaining how Congress could issue
the official call for a convention when in fact, before Congress
acted, six states had already named the time and place, chosen
delegates, set the agenda, and had issued instructions to con-
trol their delegates’ actions in Philadelphia.
While this is the professors’ principal failure in describing the
sequence of events, their reference to “Rhode Island’s Protest”
449. Id.
450. Ackerman & Katyal, supra note 14, at 489–514.
451. See THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter e
1961) (“[B]y the assent . . . of the legislatures of the several states . . . a conventi
of delegates, who shall have been appointed by the several states . . . .”); see also id
at 249 (“The States would never have appointed a convention with so muc
lemnity, nor described its objects with so much latitude, if some substantial ref
had not been in contemplation.”).
452. Ackerman & Katyal, supra note 14, at 497.
139
134
Harvard Journal of Law & Public Policy
[Vol. 40
2. Conspiracy Theories and Character Attacks: Exploring the
Legality of the Delegates’ Conduct
Ackerman and Katyal paint a picture of the Federalists as
“dangerous revolutionaries”441 who “lacked the legal authori-
ty . . . to make such an end run”442 around the existing legal re-
quirements. Yet, here again, the professors make a scattershot
attack, failing to ever engage in a focused analysis of the ques-
tions of: (a) who called the convention; and (b) what were the
instructions given to the delegates. Some of their analytical dif-
ficulty seems to arise from the professors’ failure to make any
distinction between informal measures that suggest, support,
or endorse a convention and formal “calls” for a convention.443
a. The Call
The professors claim that in “calling for the Philadelphia
Convention, the Continental Congress had charged the dele-
gates to meet ‘for the sole and express purpose of revising the
Articles.’”444 Later, they say that the Continental Congress
“join[ed] the call for the convention.”445 In other places, they
say that the “commercial commissioners” at the Annapolis
Convention called the Convention.446 Then later, they describe
the Annapolis Convention with a bit more nuance: “[T]he
commissioners did not take decisive action unilaterally. They
merely called upon Congress and the thirteen state legislatures
to issue such calls.”447 The report language from Annapolis
clearly contradicts even this version of their assertion. The An-
napolis delegates asked their state legislatures to appoint
commissioners with broader powers and to use their good of-
fices to get other states to do the same.448 They sent copies of
441. Ackerman & Katyal, supra note 14, at 495.
442. Id. at 487.
443. See, e.g., id. at 486 (describing the Federalists’ general plan for ratification as
the “Federalists’ call for ratifying conventions”); id. at 498 (describing Hamilton’s
recommendation at Annapolis as a “dramatic call”).
444. Id. at 481; see also id. at 501 (“[King and Dane] would be the authors of the
congressional resolution calling upon the states to send delegates to Philadelph-
ia.”).
445. Id. at 483.
446. Id. at 496.
447. Id. at 497.
448. 1 ELLIOT’S DEBATES, supra note 23, at 118.
No. 1]
Defying Conventional Wisdom 135
their report both to Congress and to the Governors “from mo-
tives of respect.”449 By Ackerman and Katyal’s logic, it would
be equally valid to suggest that the Annapolis delegates asked
the thirteen governors to call a convention.
The professors review the historical sequence leading up to the
Convention without ever trying to conclusively answer the ques-
tion: Who formally called the convention? In their sequential nar-
rative, Ackerman and Katyal begin with efforts to amend the Ar-
ticles in 1781, move on to the Mount Vernon Conference between
Virginia and Maryland, then to the Annapolis Convention, then
to a discussion of the impact of Shay’s Rebellion, onto the Febru-
ary, 1787 resolution by Congress, a protest from Rhode Island,
and finally to the Constitutional Convention itself.450
There is a significant gap in this sequence. Ackerman and
Katyal do not give any consideration to the actions of the legis-
latures in actually calling for the Philadelphia Convention. This
failure is no mere oversight, since Federalist No. 40 expressly
contended that the delegates’ authority did not come from ei-
ther the Annapolis Convention or the resolution from the Con-
federation Congress—but from the several states.451 Moreover,
the professors themselves noted that the Annapolis Convention
had “called upon” both Congress and the thirteen state legisla-
tures to call the Convention.452 They duly discuss the role of
Congress but inexplicably fail to discuss the role of the state
legislatures. Avoiding this inconvenient set of facts relieves
them of the difficulty of explaining how Congress could issue
the official call for a convention when in fact, before Congress
acted, six states had already named the time and place, chosen
delegates, set the agenda, and had issued instructions to con-
trol their delegates’ actions in Philadelphia.
While this is the professors’ principal failure in describing the
sequence of events, their reference to “Rhode Island’s Protest” is
449. Id.
450. Ackerman & Katyal, supra note 14, at 489–514.
451. See THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed.,
1961) (“[B]y the assent . . . of the legislatures of the several states . . . a convention
of delegates, who shall have been appointed by the several states . . . .”); see also id.
at 249 (“The States would never have appointed a convention with so much so-
lemnity, nor described its objects with so much latitude, if some substantial reform
had not been in contemplation.”).
452. Ackerman & Katyal, supra note 14, at 497.
134
Harvard Journal of Law & Public Policy
[Vol. 40
2. Conspiracy Theories and Character Attacks: Exploring the
Legality of the Delegates’ Conduct
Ackerman and Katyal paint a picture of the Federalists as
“dangerous revolutionaries”441 who “lacked the legal authori-
ty . . . to make such an end run”442 around the existing legal re-
quirements. Yet, here again, the professors make a scattershot
attack, failing to ever engage in a focused analysis of the ques-
tions of: (a) who called the convention; and (b) what were the
instructions given to the delegates. Some of their analytical dif-
ficulty seems to arise from the professors’ failure to make any
distinction between informal measures that suggest, support,
or endorse a convention and formal “calls” for a convention.443
a. The Call
The professors claim that in “calling for the Philadelphia
Convention, the Continental Congress had charged the dele-
gates to meet ‘for the sole and express purpose of revising the
Articles.’”444 Later, they say that the Continental Congress
“join[ed] the call for the convention.”445 In other places, they
say that the “commercial commissioners” at the Annapolis
Convention called the Convention.446 Then later, they describe
the Annapolis Convention with a bit more nuance: “[T]he
commissioners did not take decisive action unilaterally. They
merely called upon Congress and the thirteen state legislatures
to issue such calls.”447 The report language from Annapolis
clearly contradicts even this version of their assertion. The An-
napolis delegates asked their state legislatures to appoint
commissioners with broader powers and to use their good of-
fices to get other states to do the same.448 They sent copies of
441. Ackerman & Katyal, supra note 14, at 495.
442. Id. at 487.
443. See, e.g., id. at 486 (describing the Federalists’ general plan for ratification as
the “Federalists’ call for ratifying conventions”); id. at 498 (describing Hamilton’s
recommendation at Annapolis as a “dramatic call”).
444. Id. at 481; see also id. at 501 (“[King and Dane] would be the authors of the
congressional resolution calling upon the states to send delegates to Philadelph-
ia.”).
445. Id. at 483.
446. Id. at 496.
447. Id. at 497.
448. 1 ELLIOT’S DEBATES, supra note 23, at 118.
No. 1]
Defying Conventional Wisdom 135
their report both to Congress and to the Governors “from mo-
tives of respect.”449 By Ackerman and Katyal’s logic, it would
be equally valid to suggest that the Annapolis delegates ask
the thirteen governors to call a convention.
The professors review the historical sequence leading up to t
Convention without ever trying to conclusively answer the qu
tion: Who formally called the convention? In their sequential na
rative, Ackerman and Katyal begin with efforts to amend the Ar
ticles in 1781, move on to the Mount Vernon Conference betwee
Virginia and Maryland, then to the Annapolis Convention, th
to a discussion of the impact of Shay’s Rebellion, onto the Feb
ary, 1787 resolution by Congress, a protest from Rhode Island,
and finally to the Constitutional Convention itself.450
There is a significant gap in this sequence. Ackerman and
Katyal do not give any consideration to the actions of the legis-
latures in actually calling for the Philadelphia Convention. This
failure is no mere oversight, since Federalist No. 40 expressly
contended that the delegates’ authority did not come from ei-
ther the Annapolis Convention or the resolution from the Con-
federation Congress—but from the several states.451 Moreover,
the professors themselves noted that the Annapolis Convention
had “called upon” both Congress and the thirteen state legisla-
tures to call the Convention.452 They duly discuss the role of
Congress but inexplicably fail to discuss the role of the state
legislatures. Avoiding this inconvenient set of facts relieves
them of the difficulty of explaining how Congress could issue
the official call for a convention when in fact, before Congress
acted, six states had already named the time and place, chosen
delegates, set the agenda, and had issued instructions to con-
trol their delegates’ actions in Philadelphia.
While this is the professors’ principal failure in describing the
sequence of events, their reference to “Rhode Island’s Protest”
449. Id.
450. Ackerman & Katyal, supra note 14, at 489–514.
451. See THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter e
1961) (“[B]y the assent . . . of the legislatures of the several states . . . a conventi
of delegates, who shall have been appointed by the several states . . . .”); see also id
at 249 (“The States would never have appointed a convention with so muc
lemnity, nor described its objects with so much latitude, if some substantial ref
had not been in contemplation.”).
452. Ackerman & Katyal, supra note 14, at 497.
140
136
Harvard Journal of Law & Public Policy
[Vol. 40
simply odd. It is the only state action that is reviewed in this se-
quence of events. And this discussion is placed prior to the dis-
cussion of the Convention itself. Rhode Island’s “protest” was is-
sued September 15th, 1787, just two days before the conclusion of
the Convention.453 Moreover, Ackerman and Katyal fail to note
that Rhode Island’s protest was itself protested by the towns of
Newport and Providence.454 Yet, in their discussion of Rhode Is-
land’s protest, the professors give yet another explanation for the
call of the Convention. They note that “the Philadelphia Conven-
tion was a creature of state legislatures.”455 However, three pages
later Ackerman and Katyal return to their claim that Congress
called the convention and gave the delegates their instructions—a
claim repeated at least twice thereafter.456
The best explanation for this shifting cloud of confusion is that
the professors simply did not think through the difference be-
tween a formal call and various informal suggestions, endorse-
ments, and encouragements. The full historical record and docu-
ments give us the correct answer: Virginia called the Convention
and this formal call was joined by eleven other states.
b. The Delegates’ Authority
Ackerman and Katyal continue their inconsistent analysis
with respect to the source of the delegates’ instructions and au-
thority. At times they argue that “Congress had charged the
delegates” to only amend the Articles.457 They favorably recite
Anti-Federalist claims that the federalist proposals “were simp-
ly beyond the convention’s authority.”458 And yet, they be-
453. Nearly every mention of Rhode Island in the debates of the Philadelphia
Convention and the subsequent ratification conventions was pejorative in nature.
See, e.g., The Virginia Convention Debates (Jun. 25, 1788), reprinted in 10 DHRC,
supra note 4, at 1515, 1516 (Benjamin Harrison V stated that “Rhode-Island is not
worthy of the attention of this House—She is of no weight or importance to influ-
ence any general subject of consequence.” Harrison was a signer of the Declara-
tion of Independence and former Governor of Virginia).
454. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress, (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–
23.
455. Ackerman & Katyal, supra note 14, at 505.
456. Id. at 508–509, 514.
457. Id. at 481.
458. Id. at 508.
No. 1]
Defying Conventional Wisdom 137
grudgingly admit, often in footnotes, that the instructions from
the states actually mattered.459 The following passage is crucial:
In calling for the Philadelphia Convention, the Continen-
tal Congress had charged the delegates to meet “for the sole
and express purpose of revising the Articles.” Given this ex-
plicit language, did the delegates go beyond their legal au-
thority when they ripped the Articles up and proposed an
entirely new text?
This charge was raised repeatedly—and justifiably in the
cases of Massachussetts [sic], New York, and Connecticut,
where legislatures had expressly incorporated Congress’s
restrictive language in their own instructions to delegates.
Other state delegations, however, came with a broader
mandate, allowing them to make any constitutional pro-
posal they thought appropriate. Thus, while some key dele-
gates may well have acted beyond their commission, this
was not true of all.460
While the strong inference is raised that all delegates were
bound by the “explicit language” from Congress, Ackerman
and Katyal make the curious claim that the delegates from
Massachusetts, New York, and Connecticut were justifiably
accused of violating their instructions from their own state legis-
latures. The professors do not explain how New York’s delega-
tion could be accused of violating their instructions by voting
for the Constitution since New York cast no vote one way or
the other. Yet, they inexplicably contend that New York’s dele-
gates are “justifiably” charged of going “beyond their commis-
sion” when they “ripped the Articles up and proposed an en-
tirely new text.”461
As to Connecticut, the professors fail to quote or consider
the actual legislative language appointing the delegates. As
we have already seen, while the Connecticut resolution re-
fers to the congressional resolution, its delegates were ulti-
mately given much broader authority.462 Connecticut more
properly belongs in the category of states essentially follow-
ing the Virginia model, granting broad authority to their
459. See, e.g., id. at 482 n.18, 483 n.20.
460. Id. at 481–83 (footnotes omitted).
461. Id. at 482–83.
462. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 216.
136
Harvard Journal of Law & Public Policy
[Vol. 40
simply odd. It is the only state action that is reviewed in this se-
quence of events. And this discussion is placed prior to the dis-
cussion of the Convention itself. Rhode Island’s “protest” was is-
sued September 15th, 1787, just two days before the conclusion of
the Convention.453 Moreover, Ackerman and Katyal fail to note
that Rhode Island’s protest was itself protested by the towns of
Newport and Providence.454 Yet, in their discussion of Rhode Is-
land’s protest, the professors give yet another explanation for the
call of the Convention. They note that “the Philadelphia Conven-
tion was a creature of state legislatures.”455 However, three pages
later Ackerman and Katyal return to their claim that Congress
called the convention and gave the delegates their instructions—a
claim repeated at least twice thereafter.456
The best explanation for this shifting cloud of confusion is that
the professors simply did not think through the difference be-
tween a formal call and various informal suggestions, endorse-
ments, and encouragements. The full historical record and docu-
ments give us the correct answer: Virginia called the Convention
and this formal call was joined by eleven other states.
b. The Delegates’ Authority
Ackerman and Katyal continue their inconsistent analysis
with respect to the source of the delegates’ instructions and au-
thority. At times they argue that “Congress had charged the
delegates” to only amend the Articles.457 They favorably recite
Anti-Federalist claims that the federalist proposals “were simp-
ly beyond the convention’s authority.”458 And yet, they be-
453. Nearly every mention of Rhode Island in the debates of the Philadelphia
Convention and the subsequent ratification conventions was pejorative in nature.
See, e.g., The Virginia Convention Debates (Jun. 25, 1788), reprinted in 10 DHRC,
supra note 4, at 1515, 1516 (Benjamin Harrison V stated that “Rhode-Island is not
worthy of the attention of this House—She is of no weight or importance to influ-
ence any general subject of consequence.” Harrison was a signer of the Declara-
tion of Independence and former Governor of Virginia).
454. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress, (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–
23.
455. Ackerman & Katyal, supra note 14, at 505.
456. Id. at 508–509, 514.
457. Id. at 481.
458. Id. at 508.
No. 1]
Defying Conventional Wisdom 137
grudgingly admit, often in footnotes, that the instructions from
the states actually mattered.459 The following passage is crucia
In calling for the Philadelphia Convention, the Continen-
tal Congress had charged the delegates to meet “for the sole
and express purpose of revising the Articles.” Given this ex-
plicit language, did the delegates go beyond their legal au-
thority when they ripped the Articles up and proposed an
entirely new text?
This charge was raised repeatedly—and justifiably in the
cases of Massachussetts [sic], New York, and Connecticut,
where legislatures had expressly incorporated Congress’s
restrictive language in their own instructions to delegates.
Other state delegations, however, came with a broader
mandate, allowing them to make any constitutional pro-
posal they thought appropriate. Thus, while some key dele-
gates may well have acted beyond their commission, this
was not true of all.460
While the strong inference is raised that all delegates were
bound by the “explicit language” from Congress, Ackerman
and Katyal make the curious claim that the delegates fro
Massachusetts, New York, and Connecticut were justifiably
accused of violating their instructions from their own state legis-
latures. The professors do not explain how New York’s delega-
tion could be accused of violating their instructions by voti
for the Constitution since New York cast no vote one way
the other. Yet, they inexplicably contend that New York’s dele-
gates are “justifiably” charged of going “beyond their commis-
sion” when they “ripped the Articles up and proposed an e
tirely new text.”461
As to Connecticut, the professors fail to quote or conside
the actual legislative language appointing the delegates. As
we have already seen, while the Connecticut resolution r
fers to the congressional resolution, its delegates were ulti
mately given much broader authority.462 Connecticut mo
properly belongs in the category of states essentially follo
ing the Virginia model, granting broad authority to th
459. See, e.g., id. at 482 n.18, 483 n.20.
460. Id. at 481–83 (footnotes omitted).
461. Id. at 482–83.
462. Act Electing and Empowering Delegates (May 17, 1787), reprinted in
DHRC, supra note 4, at 215, 216.
141
136
Harvard Journal of Law & Public Policy
[Vol. 40
simply odd. It is the only state action that is reviewed in this se-
quence of events. And this discussion is placed prior to the dis-
cussion of the Convention itself. Rhode Island’s “protest” was is-
sued September 15th, 1787, just two days before the conclusion of
the Convention.453 Moreover, Ackerman and Katyal fail to note
that Rhode Island’s protest was itself protested by the towns of
Newport and Providence.454 Yet, in their discussion of Rhode Is-
land’s protest, the professors give yet another explanation for the
call of the Convention. They note that “the Philadelphia Conven-
tion was a creature of state legislatures.”455 However, three pages
later Ackerman and Katyal return to their claim that Congress
called the convention and gave the delegates their instructions—a
claim repeated at least twice thereafter.456
The best explanation for this shifting cloud of confusion is that
the professors simply did not think through the difference be-
tween a formal call and various informal suggestions, endorse-
ments, and encouragements. The full historical record and docu-
ments give us the correct answer: Virginia called the Convention
and this formal call was joined by eleven other states.
b. The Delegates’ Authority
Ackerman and Katyal continue their inconsistent analysis
with respect to the source of the delegates’ instructions and au-
thority. At times they argue that “Congress had charged the
delegates” to only amend the Articles.457 They favorably recite
Anti-Federalist claims that the federalist proposals “were simp-
ly beyond the convention’s authority.”458 And yet, they be-
453. Nearly every mention of Rhode Island in the debates of the Philadelphia
Convention and the subsequent ratification conventions was pejorative in nature.
See, e.g., The Virginia Convention Debates (Jun. 25, 1788), reprinted in 10 DHRC,
supra note 4, at 1515, 1516 (Benjamin Harrison V stated that “Rhode-Island is not
worthy of the attention of this House—She is of no weight or importance to influ-
ence any general subject of consequence.” Harrison was a signer of the Declara-
tion of Independence and former Governor of Virginia).
454. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress, (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–
23.
455. Ackerman & Katyal, supra note 14, at 505.
456. Id. at 508–509, 514.
457. Id. at 481.
458. Id. at 508.
No. 1]
Defying Conventional Wisdom 137
grudgingly admit, often in footnotes, that the instructions from
the states actually mattered.459 The following passage is crucial:
In calling for the Philadelphia Convention, the Continen-
tal Congress had charged the delegates to meet “for the sole
and express purpose of revising the Articles.” Given this ex-
plicit language, did the delegates go beyond their legal au-
thority when they ripped the Articles up and proposed an
entirely new text?
This charge was raised repeatedly—and justifiably in the
cases of Massachussetts [sic], New York, and Connecticut,
where legislatures had expressly incorporated Congress’s
restrictive language in their own instructions to delegates.
Other state delegations, however, came with a broader
mandate, allowing them to make any constitutional pro-
posal they thought appropriate. Thus, while some key dele-
gates may well have acted beyond their commission, this
was not true of all.460
While the strong inference is raised that all delegates were
bound by the “explicit language” from Congress, Ackerman
and Katyal make the curious claim that the delegates from
Massachusetts, New York, and Connecticut were justifiably
accused of violating their instructions from their own state legis-
latures. The professors do not explain how New York’s delega-
tion could be accused of violating their instructions by voting
for the Constitution since New York cast no vote one way or
the other. Yet, they inexplicably contend that New York’s dele-
gates are “justifiably” charged of going “beyond their commis-
sion” when they “ripped the Articles up and proposed an en-
tirely new text.”461
As to Connecticut, the professors fail to quote or consider
the actual legislative language appointing the delegates. As
we have already seen, while the Connecticut resolution re-
fers to the congressional resolution, its delegates were ulti-
mately given much broader authority.462 Connecticut more
properly belongs in the category of states essentially follow-
ing the Virginia model, granting broad authority to their
459. See, e.g., id. at 482 n.18, 483 n.20.
460. Id. at 481–83 (footnotes omitted).
461. Id. at 482–83.
462. Act Electing and Empowering Delegates (May 17, 1787), reprinted in 1
DHRC, supra note 4, at 215, 216.
136
Harvard Journal of Law & Public Policy
[Vol. 40
simply odd. It is the only state action that is reviewed in this se-
quence of events. And this discussion is placed prior to the dis-
cussion of the Convention itself. Rhode Island’s “protest” was is-
sued September 15th, 1787, just two days before the conclusion of
the Convention.453 Moreover, Ackerman and Katyal fail to note
that Rhode Island’s protest was itself protested by the towns of
Newport and Providence.454 Yet, in their discussion of Rhode Is-
land’s protest, the professors give yet another explanation for the
call of the Convention. They note that “the Philadelphia Conven-
tion was a creature of state legislatures.”455 However, three pages
later Ackerman and Katyal return to their claim that Congress
called the convention and gave the delegates their instructions—a
claim repeated at least twice thereafter.456
The best explanation for this shifting cloud of confusion is that
the professors simply did not think through the difference be-
tween a formal call and various informal suggestions, endorse-
ments, and encouragements. The full historical record and docu-
ments give us the correct answer: Virginia called the Convention
and this formal call was joined by eleven other states.
b. The Delegates’ Authority
Ackerman and Katyal continue their inconsistent analysis
with respect to the source of the delegates’ instructions and au-
thority. At times they argue that “Congress had charged the
delegates” to only amend the Articles.457 They favorably recite
Anti-Federalist claims that the federalist proposals “were simp-
ly beyond the convention’s authority.”458 And yet, they be-
453. Nearly every mention of Rhode Island in the debates of the Philadelphia
Convention and the subsequent ratification conventions was pejorative in nature.
See, e.g., The Virginia Convention Debates (Jun. 25, 1788), reprinted in 10 DHRC,
supra note 4, at 1515, 1516 (Benjamin Harrison V stated that “Rhode-Island is not
worthy of the attention of this House—She is of no weight or importance to influ-
ence any general subject of consequence.” Harrison was a signer of the Declara-
tion of Independence and former Governor of Virginia).
454. Newport and Providence’s Protest of Rhode Island General Assembly’s
Letter to Congress, (Sept. 17, 1787), reprinted in 24 DHRC, supra note 4, at 21, 21–
23.
455. Ackerman & Katyal, supra note 14, at 505.
456. Id. at 508–509, 514.
457. Id. at 481.
458. Id. at 508.
No. 1]
Defying Conventional Wisdom 137
grudgingly admit, often in footnotes, that the instructions from
the states actually mattered.459 The following passage is crucia
In calling for the Philadelphia Convention, the Continen-
tal Congress had charged the delegates to meet “for the sole
and express purpose of revising the Articles.” Given this ex-
plicit language, did the delegates go beyond their legal au-
thority when they ripped the Articles up and proposed an
entirely new text?
This charge was raised repeatedly—and justifiably in the
cases of Massachussetts [sic], New York, and Connecticut,
where legislatures had expressly incorporated Congress’s
restrictive language in their own instructions to delegates.
Other state delegations, however, came with a broader
mandate, allowing them to make any constitutional pro-
posal they thought appropriate. Thus, while some key dele-
gates may well have acted beyond their commission, this
was not true of all.460
While the strong inference is raised that all delegates were
bound by the “explicit language” from Congress, Ackerman
and Katyal make the curious claim that the delegates fro
Massachusetts, New York, and Connecticut were justifiably
accused of violating their instructions from their own state legis-
latures. The professors do not explain how New York’s delega-
tion could be accused of violating their instructions by voti
for the Constitution since New York cast no vote one way
the other. Yet, they inexplicably contend that New York’s dele-
gates are “justifiably” charged of going “beyond their commis-
sion” when they “ripped the Articles up and proposed an e
tirely new text.”461
As to Connecticut, the professors fail to quote or conside
the actual legislative language appointing the delegates. As
we have already seen, while the Connecticut resolution r
fers to the congressional resolution, its delegates were ulti
mately given much broader authority.462 Connecticut mo
properly belongs in the category of states essentially follo
ing the Virginia model, granting broad authority to th
459. See, e.g., id. at 482 n.18, 483 n.20.
460. Id. at 481–83 (footnotes omitted).
461. Id. at 482–83.
462. Act Electing and Empowering Delegates (May 17, 1787), reprinted in
DHRC, supra note 4, at 215, 216.
142
138
Harvard Journal of Law & Public Policy
[Vol. 40
delegates. The charge against the Massachusetts delegation
is facially more plausible. However, there are two significant
factors, previously reviewed, that place this claim in a differ-
ent light.463 The professors fail to mention that the Massachu-
setts legislature debated the question of whether the Con-
vention had “assum[ed] powers not delegated to them by
their commissions.”464 Despite this contention, that legisla-
ture agreed to call the state ratification convention by a vote
of 129 to 32.465 Moreover, the Massachusetts convention, by a
vote of “90 & od to 50 & od,” expressly rejected the argu-
ment that their delegates had violated their instructions.466
Moreover, James Madison strongly defended the legality of
the actions of the delegates from those states that adopted
the congressional language in their instructions.467 In their
review of Federalist No. 40, the professors summarily pro-
nounce Madison’s legal analysis of the instructions as
“strained” without the benefit of further discussion.468 Thus,
we are left with the choice of accepting the conclusions of
the Massachusetts legislature, ratifying convention, and
James Madison or the undeveloped assertions of two leading
modern scholars in pursuit of a grand theory that the Feder-
alists were unconventional revolutionaries.
But we should not lose sight of the fact that Ackerman and
Katyal make an important admission regarding the other nine
states. As to the charge that the delegates from these states violat-
ed their commissions, the professors pronounce judgment: “this
was not true.”469 Notwithstanding this begrudging exoneration of
the actions of delegates from nine states, the balance of the article
proceeds on the basis of a cloud of assumed impropriety by all
delegates. “Illegality was a leitmotif at the convention from its
463. See supra notes 229–33 and accompanying text.
464.
Speech of Dr. Kilham, MASS. CENTINEL, Oct. 27, 1787, in 4 DHRC, supra note
4, at 135.
465. MASS. CENTINEL (Oct. 27, 1787) reprinted in 4 DHRC, supra note 4, at 135,
138.
466. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
467. See THE FEDERALIST NO. 40, at 248–55 (James Madison) (Clinton Rossiter
ed., 1961).
468. Ackerman & Katyal, supra note 14, at 544.
469. Id. at 483.
No. 1]
Defying Conventional Wisdom 139
first days to its last.”470 Musical imagery is no substitute for actual
evidence nor does it resolve the professors’ numerous internal
inconsistencies on this issue. We have previously reviewed the
full historical record on this subject. The claim that recognized
and deliberate illegality was the overriding theme of the Conven-
tion is without merit.
c. The Delaware Claim
The professors make the particular claim that Delaware’s
delegation “recognized that it was acting in contempt of its
commission.”471 This assertion is supported by a footnote with
a variety of citations—not one of which supports the claim that
the Delaware delegates recognized that they were violating
their commissions.472 The first citation is nothing more than
Merrill Jensen’s reproduction of the commission by the Dela-
ware legislature.473 Ackerman and Katyal then say that the
“Delaware problem was broadly recognized by the delegates to
Philadelphia.”474 For this assertion, they cite the minutes of
Convention when the Delaware credentials were first read.475
This was a mere notation that Delaware’s delegates had been
directed by their legislature to not support a form of voting in
Congress that failed to recognize the equality of states. They
offer no explanation of the specific actions taken by the Dela-
ware delegates that were in violation of their commissions. The
professors do not quote a single statement by any source from
Delaware. Such a citation should be the bare minimum when
asserting that the Delaware delegates “recognized” their “con-
tempt” for their instructions. The final citation in this footnote
is a comment by Luther Martin, an Anti-Federalist who
claimed in his own Maryland ratifying convention that Dela-
ware’s delegates had violated their instructions.476 Not one
piece of evidence is offered which demonstrates that the Dela-
ware delegates themselves knew or believed they were violat-
ing their instructions.
470. Id. at 506.
471. Id. at 481.
472. See id. at 481 n.16.
473. Id.
474. Id.
475. Id.
476. Id.
138
Harvard Journal of Law & Public Policy
[Vol. 40
delegates. The charge against the Massachusetts delegation
is facially more plausible. However, there are two significant
factors, previously reviewed, that place this claim in a differ-
ent light.463 The professors fail to mention that the Massachu-
setts legislature debated the question of whether the Con-
vention had “assum[ed] powers not delegated to them by
their commissions.”464 Despite this contention, that legisla-
ture agreed to call the state ratification convention by a vote
of 129 to 32.465 Moreover, the Massachusetts convention, by a
vote of “90 & od to 50 & od,” expressly rejected the argu-
ment that their delegates had violated their instructions.466
Moreover, James Madison strongly defended the legality of
the actions of the delegates from those states that adopted
the congressional language in their instructions.467 In their
review of Federalist No. 40, the professors summarily pro-
nounce Madison’s legal analysis of the instructions as
“strained” without the benefit of further discussion.468 Thus,
we are left with the choice of accepting the conclusions of
the Massachusetts legislature, ratifying convention, and
James Madison or the undeveloped assertions of two leading
modern scholars in pursuit of a grand theory that the Feder-
alists were unconventional revolutionaries.
But we should not lose sight of the fact that Ackerman and
Katyal make an important admission regarding the other nine
states. As to the charge that the delegates from these states violat-
ed their commissions, the professors pronounce judgment: “this
was not true.”469 Notwithstanding this begrudging exoneration of
the actions of delegates from nine states, the balance of the article
proceeds on the basis of a cloud of assumed impropriety by all
delegates. “Illegality was a leitmotif at the convention from its
463. See supra notes 229–33 and accompanying text.
464.
Speech of Dr. Kilham, MASS. CENTINEL, Oct. 27, 1787, in 4 DHRC, supra note
4, at 135.
465. MASS. CENTINEL (Oct. 27, 1787) reprinted in 4 DHRC, supra note 4, at 135,
138.
466. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
467. See THE FEDERALIST NO. 40, at 248–55 (James Madison) (Clinton Rossiter
ed., 1961).
468. Ackerman & Katyal, supra note 14, at 544.
469. Id. at 483.
No. 1]
Defying Conventional Wisdom 139
first days to its last.”470 Musical imagery is no substitute for actu
evidence nor does it resolve the professors’ numerous internal
inconsistencies on this issue. We have previously reviewed t
full historical record on this subject. The claim that recognized
and deliberate illegality was the overriding theme of the Conven-
tion is without merit.
c. The Delaware Claim
The professors make the particular claim that Delaware’
delegation “recognized that it was acting in contempt of
commission.”471 This assertion is supported by a footnote wit
a variety of citations—not one of which supports the claim that
the Delaware delegates recognized that they were violating
their commissions.472 The first citation is nothing more than
Merrill Jensen’s reproduction of the commission by the Dela-
ware legislature.473 Ackerman and Katyal then say that t
“Delaware problem was broadly recognized by the delegates to
Philadelphia.”474 For this assertion, they cite the minutes
Convention when the Delaware credentials were first read 475
This was a mere notation that Delaware’s delegates had been
directed by their legislature to not support a form of voting in
Congress that failed to recognize the equality of states. Th
offer no explanation of the specific actions taken by the De
ware delegates that were in violation of their commissions. The
professors do not quote a single statement by any source from
Delaware. Such a citation should be the bare minimum when
asserting that the Delaware delegates “recognized” their “con-
tempt” for their instructions. The final citation in this footnote
is a comment by Luther Martin, an Anti-Federalist who
claimed in his own Maryland ratifying convention that Dela-
ware’s delegates had violated their instructions.476 Not one
piece of evidence is offered which demonstrates that the D
ware delegates themselves knew or believed they were violat-
ing their instructions.
470. Id. at 506.
471. Id. at 481.
472. See id. at 481 n.16.
473. Id.
474. Id.
475. Id.
476. Id.
143
138
Harvard Journal of Law & Public Policy
[Vol. 40
delegates. The charge against the Massachusetts delegation
is facially more plausible. However, there are two significant
factors, previously reviewed, that place this claim in a differ-
ent light.463 The professors fail to mention that the Massachu-
setts legislature debated the question of whether the Con-
vention had “assum[ed] powers not delegated to them by
their commissions.”464 Despite this contention, that legisla-
ture agreed to call the state ratification convention by a vote
of 129 to 32.465 Moreover, the Massachusetts convention, by a
vote of “90 & od to 50 & od,” expressly rejected the argu-
ment that their delegates had violated their instructions.466
Moreover, James Madison strongly defended the legality of
the actions of the delegates from those states that adopted
the congressional language in their instructions.467 In their
review of Federalist No. 40, the professors summarily pro-
nounce Madison’s legal analysis of the instructions as
“strained” without the benefit of further discussion.468 Thus,
we are left with the choice of accepting the conclusions of
the Massachusetts legislature, ratifying convention, and
James Madison or the undeveloped assertions of two leading
modern scholars in pursuit of a grand theory that the Feder-
alists were unconventional revolutionaries.
But we should not lose sight of the fact that Ackerman and
Katyal make an important admission regarding the other nine
states. As to the charge that the delegates from these states violat-
ed their commissions, the professors pronounce judgment: “this
was not true.”469 Notwithstanding this begrudging exoneration of
the actions of delegates from nine states, the balance of the article
proceeds on the basis of a cloud of assumed impropriety by all
delegates. “Illegality was a leitmotif at the convention from its
463. See supra notes 229–33 and accompanying text.
464.
Speech of Dr. Kilham, MASS. CENTINEL, Oct. 27, 1787, in 4 DHRC, supra note
4, at 135.
465. MASS. CENTINEL (Oct. 27, 1787) reprinted in 4 DHRC, supra note 4, at 135,
138.
466. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
467. See THE FEDERALIST NO. 40, at 248–55 (James Madison) (Clinton Rossiter
ed., 1961).
468. Ackerman & Katyal, supra note 14, at 544.
469. Id. at 483.
No. 1]
Defying Conventional Wisdom 139
first days to its last.”470 Musical imagery is no substitute for actual
evidence nor does it resolve the professors’ numerous internal
inconsistencies on this issue. We have previously reviewed the
full historical record on this subject. The claim that recognized
and deliberate illegality was the overriding theme of the Conven-
tion is without merit.
c. The Delaware Claim
The professors make the particular claim that Delaware’s
delegation “recognized that it was acting in contempt of its
commission.”471 This assertion is supported by a footnote with
a variety of citations—not one of which supports the claim that
the Delaware delegates recognized that they were violating
their commissions.472 The first citation is nothing more than
Merrill Jensen’s reproduction of the commission by the Dela-
ware legislature.473 Ackerman and Katyal then say that the
“Delaware problem was broadly recognized by the delegates to
Philadelphia.”474 For this assertion, they cite the minutes of
Convention when the Delaware credentials were first read.475
This was a mere notation that Delaware’s delegates had been
directed by their legislature to not support a form of voting in
Congress that failed to recognize the equality of states. They
offer no explanation of the specific actions taken by the Dela-
ware delegates that were in violation of their commissions. The
professors do not quote a single statement by any source from
Delaware. Such a citation should be the bare minimum when
asserting that the Delaware delegates “recognized” their “con-
tempt” for their instructions. The final citation in this footnote
is a comment by Luther Martin, an Anti-Federalist who
claimed in his own Maryland ratifying convention that Dela-
ware’s delegates had violated their instructions.476 Not one
piece of evidence is offered which demonstrates that the Dela-
ware delegates themselves knew or believed they were violat-
ing their instructions.
470. Id. at 506.
471. Id. at 481.
472. See id. at 481 n.16.
473. Id.
474. Id.
475. Id.
476. Id.
138
Harvard Journal of Law & Public Policy
[Vol. 40
delegates. The charge against the Massachusetts delegation
is facially more plausible. However, there are two significant
factors, previously reviewed, that place this claim in a differ-
ent light.463 The professors fail to mention that the Massachu-
setts legislature debated the question of whether the Con-
vention had “assum[ed] powers not delegated to them by
their commissions.”464 Despite this contention, that legisla-
ture agreed to call the state ratification convention by a vote
of 129 to 32.465 Moreover, the Massachusetts convention, by a
vote of “90 & od to 50 & od,” expressly rejected the argu-
ment that their delegates had violated their instructions.466
Moreover, James Madison strongly defended the legality of
the actions of the delegates from those states that adopted
the congressional language in their instructions.467 In their
review of Federalist No. 40, the professors summarily pro-
nounce Madison’s legal analysis of the instructions as
“strained” without the benefit of further discussion.468 Thus,
we are left with the choice of accepting the conclusions of
the Massachusetts legislature, ratifying convention, and
James Madison or the undeveloped assertions of two leading
modern scholars in pursuit of a grand theory that the Feder-
alists were unconventional revolutionaries.
But we should not lose sight of the fact that Ackerman and
Katyal make an important admission regarding the other nine
states. As to the charge that the delegates from these states violat-
ed their commissions, the professors pronounce judgment: “this
was not true.”469 Notwithstanding this begrudging exoneration of
the actions of delegates from nine states, the balance of the article
proceeds on the basis of a cloud of assumed impropriety by all
delegates. “Illegality was a leitmotif at the convention from its
463. See supra notes 229–33 and accompanying text.
464.
Speech of Dr. Kilham, MASS. CENTINEL, Oct. 27, 1787, in 4 DHRC, supra note
4, at 135.
465. MASS. CENTINEL (Oct. 27, 1787) reprinted in 4 DHRC, supra note 4, at 135,
138.
466. Letter from Nathaniel Gorham to Henry Knox (Mar. 9, 1788), reprinted in 7
DHRC, supra note 4, at 1673, 1674.
467. See THE FEDERALIST NO. 40, at 248–55 (James Madison) (Clinton Rossiter
ed., 1961).
468. Ackerman & Katyal, supra note 14, at 544.
469. Id. at 483.
No. 1]
Defying Conventional Wisdom 139
first days to its last.”470 Musical imagery is no substitute for actu
evidence nor does it resolve the professors’ numerous internal
inconsistencies on this issue. We have previously reviewed t
full historical record on this subject. The claim that recognized
and deliberate illegality was the overriding theme of the Conven-
tion is without merit.
c. The Delaware Claim
The professors make the particular claim that Delaware’
delegation “recognized that it was acting in contempt of
commission.”471 This assertion is supported by a footnote wit
a variety of citations—not one of which supports the claim that
the Delaware delegates recognized that they were violating
their commissions.472 The first citation is nothing more than
Merrill Jensen’s reproduction of the commission by the Dela-
ware legislature.473 Ackerman and Katyal then say that t
“Delaware problem was broadly recognized by the delegates to
Philadelphia.”474 For this assertion, they cite the minutes
Convention when the Delaware credentials were first read 475
This was a mere notation that Delaware’s delegates had been
directed by their legislature to not support a form of voting in
Congress that failed to recognize the equality of states. Th
offer no explanation of the specific actions taken by the De
ware delegates that were in violation of their commissions. The
professors do not quote a single statement by any source from
Delaware. Such a citation should be the bare minimum when
asserting that the Delaware delegates “recognized” their “con-
tempt” for their instructions. The final citation in this footnote
is a comment by Luther Martin, an Anti-Federalist who
claimed in his own Maryland ratifying convention that Dela-
ware’s delegates had violated their instructions.476 Not one
piece of evidence is offered which demonstrates that the D
ware delegates themselves knew or believed they were violat-
ing their instructions.
470. Id. at 506.
471. Id. at 481.
472. See id. at 481 n.16.
473. Id.
474. Id.
475. Id.
476. Id.
144
140
Harvard Journal of Law & Public Policy
[Vol. 40
The preservation of the equality of the states was indeed a ma-
jor topic at the Constitutional Convention. Delaware’s delegates
supported the Great Compromise which created our bicameral
system with the House based on equality of population and the
Senate based on the equality of States.477 This compromise was
consistent with the tenor of Delaware’s instructions to preserve
the equality of the states in Congress. The opinion of a single An-
ti-Federalist from Maryland does not prove Ackerman and
Katyal’s assertion that Delaware’s delegates knowingly violated
their instructions. And the ultimate proof of the delegates’ fidelity
is found in the fact that Delaware was the first state to ratify the
Constitution.478 Its vote was unanimous.479
3. The Legality of the Ratification Process
a. Article XIII
Ackerman and Katyal’s principal attack on the legality of the
adoption of the Constitution rests on the alleged improprieties
of the ratification process. This is logical given that, at least oc-
casionally, they admit that the vast majority of delegates were
faithful to their instructions. Thus, they focus the majority of
their article on the more complex and plausible issue that the
ratification process was improper.
The professors make a straightforward legal argument.480 Ar-
ticle XIII required all amendments to be first proposed by Con-
gress and then ratified by all thirteen state legislatures. The
new Constitution itself was not approved by Congress, nor by
the state legislatures—thus the ratification process was illegal.
Ackerman and Katyal make three fundamental errors in their
ratification argument. First, they fail to identify the correct
source for the rule that ratification was to proceed first to Con-
gress and then to the state legislatures. Second, they fail to con-
sider the legal implications arising from the “Ratification and
Transition” Resolution of the Philadelphia Convention.481
477. See 1 FARRAND’S RECORDS, supra note 107, at 664.
478. 3 DHRC, supra note 4, at 41.
479. Id.
480. Kay’s arguments on this point are essentially parallel to those of Ackerman
and Katyal. See Kay, supra note 14, at 67–70.
481. Kay does reference this second act of the Convention in his arguments on
ratification. However, he inaccurately classifies this act as a letter. See id. at 68. Kay
No. 1]
Defying Conventional Wisdom 141
Third, they fail to acknowledge that the new process itself was,
in fact, approved by Congress unanimously and then by all
thirteen state legislatures.
It is only by ignoring the full documentary and historical
record that Ackerman and Katyal so easily reach their conclu-
sion that the change in the ratification process was unsanc-
tioned. But the plain facts are that the states set the expectation
for the ratification process in their appointments of delegates,
and the states were free to lawfully change this process provid-
ed that Congress and all thirteen legislatures agreed. And this
is what actually happened.482
The professors make much ado about the political and mor-
al arguments raised by Madison to justify for the new process.
From such statements by Madison, they contend that he ar-
gued that the end of obtaining the Constitution was so im-
portant that it justified illegal and revolutionary means to
achieve this end.483 Two things are abundantly clear from the
historical record about these contentions. First, the supporters
of the Constitution genuinely believed that a government
based on the consent of the governed was morally superior to
a government assented to only by elected legislators. All polit-
ical legitimacy rested on this standard. Second, it is beyond
legitimate debate that the Founders would have proceeded
with the new process and entered into the government under
the new Constitution even if one or more state legislatures
refused to endorse the new process for ratification. The Fram-
ers clearly believed that the nation was on the verge of col-
lapse and that moral and political legitimacy, based on the
direct consent of the governed, was more important than le-
galistic correctness.484 However, proof that the Founders were
willing, if it had become necessary, to take such steps is not
proof that they acted illegally. We judge the legality of their
gives no consideration to the legal effects of the approval of the process set forth
in these resolutions by both the Confederation Congress and all thirteen state
legislatures.
482. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
at 340, 340.
483. Ackerman & Katyal, supra note 14, at 488.
484. See THE FEDERALIST NO. 40, at 252–55 (James Madison) (Clinton Rossiter
ed., 1961).
140
Harvard Journal of Law & Public Policy
[Vol. 40
The preservation of the equality of the states was indeed a ma-
jor topic at the Constitutional Convention. Delaware’s delegates
supported the Great Compromise which created our bicameral
system with the House based on equality of population and the
Senate based on the equality of States.477 This compromise was
consistent with the tenor of Delaware’s instructions to preserve
the equality of the states in Congress. The opinion of a single An-
ti-Federalist from Maryland does not prove Ackerman and
Katyal’s assertion that Delaware’s delegates knowingly violated
their instructions. And the ultimate proof of the delegates’ fidelity
is found in the fact that Delaware was the first state to ratify the
Constitution.478 Its vote was unanimous.479
3. The Legality of the Ratification Process
a. Article XIII
Ackerman and Katyal’s principal attack on the legality of the
adoption of the Constitution rests on the alleged improprieties
of the ratification process. This is logical given that, at least oc-
casionally, they admit that the vast majority of delegates were
faithful to their instructions. Thus, they focus the majority of
their article on the more complex and plausible issue that the
ratification process was improper.
The professors make a straightforward legal argument.480 Ar-
ticle XIII required all amendments to be first proposed by Con-
gress and then ratified by all thirteen state legislatures. The
new Constitution itself was not approved by Congress, nor by
the state legislatures—thus the ratification process was illegal.
Ackerman and Katyal make three fundamental errors in their
ratification argument. First, they fail to identify the correct
source for the rule that ratification was to proceed first to Con-
gress and then to the state legislatures. Second, they fail to con-
sider the legal implications arising from the “Ratification and
Transition” Resolution of the Philadelphia Convention.481
477. See 1 FARRAND’S RECORDS, supra note 107, at 664.
478. 3 DHRC, supra note 4, at 41.
479. Id.
480. Kay’s arguments on this point are essentially parallel to those of Ackerman
and Katyal. See Kay, supra note 14, at 67–70.
481. Kay does reference this second act of the Convention in his arguments on
ratification. However, he inaccurately classifies this act as a letter. See id. at 68. Kay
No. 1]
Defying Conventional Wisdom 141
Third, they fail to acknowledge that the new process itself w
in fact, approved by Congress unanimously and then by
thirteen state legislatures.
It is only by ignoring the full documentary and historical
record that Ackerman and Katyal so easily reach their conc
sion that the change in the ratification process was unsan
tioned. But the plain facts are that the states set the expectation
for the ratification process in their appointments of delegates,
and the states were free to lawfully change this process provid-
ed that Congress and all thirteen legislatures agreed. And this
is what actually happened.482
The professors make much ado about the political and m
al arguments raised by Madison to justify for the new proces
From such statements by Madison, they contend that he ar-
gued that the end of obtaining the Constitution was so im-
portant that it justified illegal and revolutionary means to
achieve this end.483 Two things are abundantly clear from the
historical record about these contentions. First, the support
of the Constitution genuinely believed that a government
based on the consent of the governed was morally superior t
a government assented to only by elected legislators. All polit-
ical legitimacy rested on this standard. Second, it is beyond
legitimate debate that the Founders would have proceeded
with the new process and entered into the government under
the new Constitution even if one or more state legislatur
refused to endorse the new process for ratification. The Fram-
ers clearly believed that the nation was on the verge of col-
lapse and that moral and political legitimacy, based on the
direct consent of the governed, was more important than
galistic correctness.484 However, proof that the Founders we
willing, if it had become necessary, to take such steps is not
proof that they acted illegally. We judge the legality of the
gives no consideration to the legal effects of the approval of the process set fo
in these resolutions by both the Confederation Congress and all thirteen st
legislatures.
482. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4
at 340, 340.
483. Ackerman & Katyal, supra note 14, at 488.
484. See THE FEDERALIST NO. 40, at 252–55 (James Madison) (Clinton Rossi
ed., 1961).
145
140
Harvard Journal of Law & Public Policy
[Vol. 40
The preservation of the equality of the states was indeed a ma-
jor topic at the Constitutional Convention. Delaware’s delegates
supported the Great Compromise which created our bicameral
system with the House based on equality of population and the
Senate based on the equality of States.477 This compromise was
consistent with the tenor of Delaware’s instructions to preserve
the equality of the states in Congress. The opinion of a single An-
ti-Federalist from Maryland does not prove Ackerman and
Katyal’s assertion that Delaware’s delegates knowingly violated
their instructions. And the ultimate proof of the delegates’ fidelity
is found in the fact that Delaware was the first state to ratify the
Constitution.478 Its vote was unanimous.479
3. The Legality of the Ratification Process
a. Article XIII
Ackerman and Katyal’s principal attack on the legality of the
adoption of the Constitution rests on the alleged improprieties
of the ratification process. This is logical given that, at least oc-
casionally, they admit that the vast majority of delegates were
faithful to their instructions. Thus, they focus the majority of
their article on the more complex and plausible issue that the
ratification process was improper.
The professors make a straightforward legal argument.480 Ar-
ticle XIII required all amendments to be first proposed by Con-
gress and then ratified by all thirteen state legislatures. The
new Constitution itself was not approved by Congress, nor by
the state legislatures—thus the ratification process was illegal.
Ackerman and Katyal make three fundamental errors in their
ratification argument. First, they fail to identify the correct
source for the rule that ratification was to proceed first to Con-
gress and then to the state legislatures. Second, they fail to con-
sider the legal implications arising from the “Ratification and
Transition” Resolution of the Philadelphia Convention.481
477. See 1 FARRAND’S RECORDS, supra note 107, at 664.
478. 3 DHRC, supra note 4, at 41.
479. Id.
480. Kay’s arguments on this point are essentially parallel to those of Ackerman
and Katyal. See Kay, supra note 14, at 67–70.
481. Kay does reference this second act of the Convention in his arguments on
ratification. However, he inaccurately classifies this act as a letter. See id. at 68. Kay
No. 1]
Defying Conventional Wisdom 141
Third, they fail to acknowledge that the new process itself was,
in fact, approved by Congress unanimously and then by all
thirteen state legislatures.
It is only by ignoring the full documentary and historical
record that Ackerman and Katyal so easily reach their conclu-
sion that the change in the ratification process was unsanc-
tioned. But the plain facts are that the states set the expectation
for the ratification process in their appointments of delegates,
and the states were free to lawfully change this process provid-
ed that Congress and all thirteen legislatures agreed. And this
is what actually happened.482
The professors make much ado about the political and mor-
al arguments raised by Madison to justify for the new process.
From such statements by Madison, they contend that he ar-
gued that the end of obtaining the Constitution was so im-
portant that it justified illegal and revolutionary means to
achieve this end.483 Two things are abundantly clear from the
historical record about these contentions. First, the supporters
of the Constitution genuinely believed that a government
based on the consent of the governed was morally superior to
a government assented to only by elected legislators. All polit-
ical legitimacy rested on this standard. Second, it is beyond
legitimate debate that the Founders would have proceeded
with the new process and entered into the government under
the new Constitution even if one or more state legislatures
refused to endorse the new process for ratification. The Fram-
ers clearly believed that the nation was on the verge of col-
lapse and that moral and political legitimacy, based on the
direct consent of the governed, was more important than le-
galistic correctness.484 However, proof that the Founders were
willing, if it had become necessary, to take such steps is not
proof that they acted illegally. We judge the legality of their
gives no consideration to the legal effects of the approval of the process set forth
in these resolutions by both the Confederation Congress and all thirteen state
legislatures.
482. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
at 340, 340.
483. Ackerman & Katyal, supra note 14, at 488.
484. See THE FEDERALIST NO. 40, at 252–55 (James Madison) (Clinton Rossiter
ed., 1961).
140
Harvard Journal of Law & Public Policy
[Vol. 40
The preservation of the equality of the states was indeed a ma-
jor topic at the Constitutional Convention. Delaware’s delegates
supported the Great Compromise which created our bicameral
system with the House based on equality of population and the
Senate based on the equality of States.477 This compromise was
consistent with the tenor of Delaware’s instructions to preserve
the equality of the states in Congress. The opinion of a single An-
ti-Federalist from Maryland does not prove Ackerman and
Katyal’s assertion that Delaware’s delegates knowingly violated
their instructions. And the ultimate proof of the delegates’ fidelity
is found in the fact that Delaware was the first state to ratify the
Constitution.478 Its vote was unanimous.479
3. The Legality of the Ratification Process
a. Article XIII
Ackerman and Katyal’s principal attack on the legality of the
adoption of the Constitution rests on the alleged improprieties
of the ratification process. This is logical given that, at least oc-
casionally, they admit that the vast majority of delegates were
faithful to their instructions. Thus, they focus the majority of
their article on the more complex and plausible issue that the
ratification process was improper.
The professors make a straightforward legal argument.480 Ar-
ticle XIII required all amendments to be first proposed by Con-
gress and then ratified by all thirteen state legislatures. The
new Constitution itself was not approved by Congress, nor by
the state legislatures—thus the ratification process was illegal.
Ackerman and Katyal make three fundamental errors in their
ratification argument. First, they fail to identify the correct
source for the rule that ratification was to proceed first to Con-
gress and then to the state legislatures. Second, they fail to con-
sider the legal implications arising from the “Ratification and
Transition” Resolution of the Philadelphia Convention.481
477. See 1 FARRAND’S RECORDS, supra note 107, at 664.
478. 3 DHRC, supra note 4, at 41.
479. Id.
480. Kay’s arguments on this point are essentially parallel to those of Ackerman
and Katyal. See Kay, supra note 14, at 67–70.
481. Kay does reference this second act of the Convention in his arguments on
ratification. However, he inaccurately classifies this act as a letter. See id. at 68. Kay
No. 1]
Defying Conventional Wisdom 141
Third, they fail to acknowledge that the new process itself w
in fact, approved by Congress unanimously and then by
thirteen state legislatures.
It is only by ignoring the full documentary and historical
record that Ackerman and Katyal so easily reach their conc
sion that the change in the ratification process was unsan
tioned. But the plain facts are that the states set the expectation
for the ratification process in their appointments of delegates,
and the states were free to lawfully change this process provid-
ed that Congress and all thirteen legislatures agreed. And this
is what actually happened.482
The professors make much ado about the political and m
al arguments raised by Madison to justify for the new proces
From such statements by Madison, they contend that he ar-
gued that the end of obtaining the Constitution was so im-
portant that it justified illegal and revolutionary means to
achieve this end.483 Two things are abundantly clear from the
historical record about these contentions. First, the support
of the Constitution genuinely believed that a government
based on the consent of the governed was morally superior t
a government assented to only by elected legislators. All polit-
ical legitimacy rested on this standard. Second, it is beyond
legitimate debate that the Founders would have proceeded
with the new process and entered into the government under
the new Constitution even if one or more state legislatur
refused to endorse the new process for ratification. The Fram-
ers clearly believed that the nation was on the verge of col-
lapse and that moral and political legitimacy, based on the
direct consent of the governed, was more important than
galistic correctness.484 However, proof that the Founders we
willing, if it had become necessary, to take such steps is not
proof that they acted illegally. We judge the legality of the
gives no consideration to the legal effects of the approval of the process set fo
in these resolutions by both the Confederation Congress and all thirteen st
legislatures.
482. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4
at 340, 340.
483. Ackerman & Katyal, supra note 14, at 488.
484. See THE FEDERALIST NO. 40, at 252–55 (James Madison) (Clinton Rossi
ed., 1961).
146
142
Harvard Journal of Law & Public Policy
[Vol. 40
actual actions, not what they probably (or even certainly)
would have done if the legally proper method failed.
Thus, Ackerman and Katyal’s recitation of the Federalists’
moral arguments and appeals to popular sovereignty are his-
torically interesting and demonstrate that our country came
very close to making a quasi-revolutionary decision in the rati-
fication process. But, in the end they found a path that was not
revolutionary. They asked Congress and all thirteen state legis-
latures to approve the new ratification process and they did.
Thus, there is no need for either an apology or a moral justifica-
tion from the Framers nor forgiveness from their political de-
scendants. Congress and all thirteen legislatures gave legal
sanction to the new process.
b. State Constitutions
Ackerman and Katyal make a second argument as to the ille-
gality of the ratification process. They contend that several
state constitutions contained a required process for amend-
ments thereto.485 And since the Supremacy Clause in Article VI
represented a de facto amendment to these state constitutions,
these states were required to follow that process first.486 Each
state constitution would have to be amended to authorize the
legislature to call a ratification convention for a Constitution
that proclaimed itself to be supreme over the states in matters
delegated to the new central government.487
This argument borders on frivolousness, ignoring, as it does,
the text of Article XIII. The first sentence of that Article con-
tained a supremacy clause: “Every State shall abide by the de-
termination of the United States in Congress assembled, on all
questions which by this confederation are submitted to
them.”488 Nothing in Article VI of the Constitution says any-
thing materially different.489 The Constitution and all laws
made in furtherance of the Constitution are supreme over in-
consistent state laws and state constitutions. The provisions of
the Articles of Confederation and the Constitution on the ques-
485. Ackerman & Katyal, supra note 14, at 484.
486. See id.
487. See id. at 484–87.
488. ARTICLES OF CONFEDERATION OF 1781, art. XIII.
489. See U.S. CONST. art. VI, cl. 1.
No. 1]
Defying Conventional Wisdom 143
tion of supremacy are functionally identical. Moreover, if the
state constitutions of these select states required the use of the
state amending process to adopt a supremacy clause, then that
requirement was equally applicable to the adoption of the Arti-
cles of Confederation. No state did this, of course, which un-
derscores the absurdity of this argument.
Although Ackerman and Katyal never mention it, this argu-
ment was made and answered during the ratification debates.
The Republican Federalist argued that the Massachusetts con-
stitution would be effectively amended by the new federal con-
stitution.490 Accordingly, prior to ratification, permission would
have to be obtained by first following the provisions of the
Massachusetts state constitution.491 This suggestion was never
given serious consideration in either the Massachusetts legisla-
ture or its ratification convention.
This theory was also argued by the town of Great Barrington,
Massachusetts in proposed instructions to their original delegate
to the state ratification convention, William Whiting.492 He was
one of the Common Pleas judges from Great Barrington, Massa-
chusetts who was convicted of sedition for his role in Shay’s Re-
bellion.493 A Federalist writer answered such arguments by point-
ing out that, if true, they would equally demonstrate that the
Articles of Confederation had been illegally adopted:
[I]f we put the credentials of our rulers in 1781 to the test; if
we dare to try the extent of their authority by the criterion of
first principles; if in our researches after truth on this point
we follow these whithersoever they will guide us, may it not
be safely and fairly asserted that the States of South Carolina
Virginia, New Jersey, Connecticut, Rhode-Island and New
Hampshire even from the date of Independence to that of
the confederation to which we are objecting, never invested
their respective Legislatures with sufficient powers perma-
nently to form and ratify such a compact.494
490.
The Republican Federalist III, MASS. CENTINEL, Jan. 9, 1787, reprinted in 5
DHRC, supra note 4, at 661–65.
491. See id.
492. See Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at
959.
493. See id. at 958.
494. Letter from John Brown Cutting to William Short London (Jan. 9, 1788),
reprinted in 14 DHRC, supra note 4, at 493–94.
142
Harvard Journal of Law & Public Policy
[Vol. 40
actual actions, not what they probably (or even certainly)
would have done if the legally proper method failed.
Thus, Ackerman and Katyal’s recitation of the Federalists’
moral arguments and appeals to popular sovereignty are his-
torically interesting and demonstrate that our country came
very close to making a quasi-revolutionary decision in the rati-
fication process. But, in the end they found a path that was not
revolutionary. They asked Congress and all thirteen state legis-
latures to approve the new ratification process and they did.
Thus, there is no need for either an apology or a moral justifica-
tion from the Framers nor forgiveness from their political de-
scendants. Congress and all thirteen legislatures gave legal
sanction to the new process.
b. State Constitutions
Ackerman and Katyal make a second argument as to the ille-
gality of the ratification process. They contend that several
state constitutions contained a required process for amend-
ments thereto.485 And since the Supremacy Clause in Article VI
represented a de facto amendment to these state constitutions,
these states were required to follow that process first.486 Each
state constitution would have to be amended to authorize the
legislature to call a ratification convention for a Constitution
that proclaimed itself to be supreme over the states in matters
delegated to the new central government.487
This argument borders on frivolousness, ignoring, as it does,
the text of Article XIII. The first sentence of that Article con-
tained a supremacy clause: “Every State shall abide by the de-
termination of the United States in Congress assembled, on all
questions which by this confederation are submitted to
them.”488 Nothing in Article VI of the Constitution says any-
thing materially different.489 The Constitution and all laws
made in furtherance of the Constitution are supreme over in-
consistent state laws and state constitutions. The provisions of
the Articles of Confederation and the Constitution on the ques-
485. Ackerman & Katyal, supra note 14, at 484.
486. See id.
487. See id. at 484–87.
488. ARTICLES OF CONFEDERATION OF 1781, art. XIII.
489. See U.S. CONST. art. VI, cl. 1.
No. 1]
Defying Conventional Wisdom 143
tion of supremacy are functionally identical. Moreover, if t
state constitutions of these select states required the use of the
state amending process to adopt a supremacy clause, then th
requirement was equally applicable to the adoption of the Arti-
cles of Confederation. No state did this, of course, which un-
derscores the absurdity of this argument.
Although Ackerman and Katyal never mention it, this argu-
ment was made and answered during the ratification debates.
The Republican Federalist argued that the Massachusetts con-
stitution would be effectively amended by the new federal con-
stitution.490 Accordingly, prior to ratification, permission woul
have to be obtained by first following the provisions of t
Massachusetts state constitution.491 This suggestion was neve
given serious consideration in either the Massachusetts legisla-
ture or its ratification convention.
This theory was also argued by the town of Great Barrington,
Massachusetts in proposed instructions to their original delegate
to the state ratification convention, William Whiting.492 He was
one of the Common Pleas judges from Great Barrington, Massa-
chusetts who was convicted of sedition for his role in Shay’s R
bellion.493 A Federalist writer answered such arguments by poi
ing out that, if true, they would equally demonstrate that
Articles of Confederation had been illegally adopted:
[I]f we put the credentials of our rulers in 1781 to the test; if
we dare to try the extent of their authority by the criterion of
first principles; if in our researches after truth on this point
we follow these whithersoever they will guide us, may it not
be safely and fairly asserted that the States of South Carolina
Virginia, New Jersey, Connecticut, Rhode-Island and New
Hampshire even from the date of Independence to that of
the confederation to which we are objecting, never invested
their respective Legislatures with sufficient powers perma-
nently to form and ratify such a compact.494
490.
The Republican Federalist III, MASS. CENTINEL, Jan. 9, 1787, reprinted in
DHRC, supra note 4, at 661–65.
491. See id.
492. See Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4,
959.
493. See id. at 958.
494. Letter from John Brown Cutting to William Short London (Jan. 9, 1788)
reprinted in 14 DHRC, supra note 4, at 493–94.
147
142
Harvard Journal of Law & Public Policy
[Vol. 40
actual actions, not what they probably (or even certainly)
would have done if the legally proper method failed.
Thus, Ackerman and Katyal’s recitation of the Federalists’
moral arguments and appeals to popular sovereignty are his-
torically interesting and demonstrate that our country came
very close to making a quasi-revolutionary decision in the rati-
fication process. But, in the end they found a path that was not
revolutionary. They asked Congress and all thirteen state legis-
latures to approve the new ratification process and they did.
Thus, there is no need for either an apology or a moral justifica-
tion from the Framers nor forgiveness from their political de-
scendants. Congress and all thirteen legislatures gave legal
sanction to the new process.
b. State Constitutions
Ackerman and Katyal make a second argument as to the ille-
gality of the ratification process. They contend that several
state constitutions contained a required process for amend-
ments thereto.485 And since the Supremacy Clause in Article VI
represented a de facto amendment to these state constitutions,
these states were required to follow that process first.486 Each
state constitution would have to be amended to authorize the
legislature to call a ratification convention for a Constitution
that proclaimed itself to be supreme over the states in matters
delegated to the new central government.487
This argument borders on frivolousness, ignoring, as it does,
the text of Article XIII. The first sentence of that Article con-
tained a supremacy clause: “Every State shall abide by the de-
termination of the United States in Congress assembled, on all
questions which by this confederation are submitted to
them.”488 Nothing in Article VI of the Constitution says any-
thing materially different.489 The Constitution and all laws
made in furtherance of the Constitution are supreme over in-
consistent state laws and state constitutions. The provisions of
the Articles of Confederation and the Constitution on the ques-
485. Ackerman & Katyal, supra note 14, at 484.
486. See id.
487. See id. at 484–87.
488. ARTICLES OF CONFEDERATION OF 1781, art. XIII.
489. See U.S. CONST. art. VI, cl. 1.
No. 1]
Defying Conventional Wisdom 143
tion of supremacy are functionally identical. Moreover, if the
state constitutions of these select states required the use of the
state amending process to adopt a supremacy clause, then that
requirement was equally applicable to the adoption of the Arti-
cles of Confederation. No state did this, of course, which un-
derscores the absurdity of this argument.
Although Ackerman and Katyal never mention it, this argu-
ment was made and answered during the ratification debates.
The Republican Federalist argued that the Massachusetts con-
stitution would be effectively amended by the new federal con-
stitution.490 Accordingly, prior to ratification, permission would
have to be obtained by first following the provisions of the
Massachusetts state constitution.491 This suggestion was never
given serious consideration in either the Massachusetts legisla-
ture or its ratification convention.
This theory was also argued by the town of Great Barrington,
Massachusetts in proposed instructions to their original delegate
to the state ratification convention, William Whiting.492 He was
one of the Common Pleas judges from Great Barrington, Massa-
chusetts who was convicted of sedition for his role in Shay’s Re-
bellion.493 A Federalist writer answered such arguments by point-
ing out that, if true, they would equally demonstrate that the
Articles of Confederation had been illegally adopted:
[I]f we put the credentials of our rulers in 1781 to the test; if
we dare to try the extent of their authority by the criterion of
first principles; if in our researches after truth on this point
we follow these whithersoever they will guide us, may it not
be safely and fairly asserted that the States of South Carolina
Virginia, New Jersey, Connecticut, Rhode-Island and New
Hampshire even from the date of Independence to that of
the confederation to which we are objecting, never invested
their respective Legislatures with sufficient powers perma-
nently to form and ratify such a compact.494
490.
The Republican Federalist III, MASS. CENTINEL, Jan. 9, 1787, reprinted in 5
DHRC, supra note 4, at 661–65.
491. See id.
492. See Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4, at
959.
493. See id. at 958.
494. Letter from John Brown Cutting to William Short London (Jan. 9, 1788),
reprinted in 14 DHRC, supra note 4, at 493–94.
142
Harvard Journal of Law & Public Policy
[Vol. 40
actual actions, not what they probably (or even certainly)
would have done if the legally proper method failed.
Thus, Ackerman and Katyal’s recitation of the Federalists’
moral arguments and appeals to popular sovereignty are his-
torically interesting and demonstrate that our country came
very close to making a quasi-revolutionary decision in the rati-
fication process. But, in the end they found a path that was not
revolutionary. They asked Congress and all thirteen state legis-
latures to approve the new ratification process and they did.
Thus, there is no need for either an apology or a moral justifica-
tion from the Framers nor forgiveness from their political de-
scendants. Congress and all thirteen legislatures gave legal
sanction to the new process.
b. State Constitutions
Ackerman and Katyal make a second argument as to the ille-
gality of the ratification process. They contend that several
state constitutions contained a required process for amend-
ments thereto.485 And since the Supremacy Clause in Article VI
represented a de facto amendment to these state constitutions,
these states were required to follow that process first.486 Each
state constitution would have to be amended to authorize the
legislature to call a ratification convention for a Constitution
that proclaimed itself to be supreme over the states in matters
delegated to the new central government.487
This argument borders on frivolousness, ignoring, as it does,
the text of Article XIII. The first sentence of that Article con-
tained a supremacy clause: “Every State shall abide by the de-
termination of the United States in Congress assembled, on all
questions which by this confederation are submitted to
them.”488 Nothing in Article VI of the Constitution says any-
thing materially different.489 The Constitution and all laws
made in furtherance of the Constitution are supreme over in-
consistent state laws and state constitutions. The provisions of
the Articles of Confederation and the Constitution on the ques-
485. Ackerman & Katyal, supra note 14, at 484.
486. See id.
487. See id. at 484–87.
488. ARTICLES OF CONFEDERATION OF 1781, art. XIII.
489. See U.S. CONST. art. VI, cl. 1.
No. 1]
Defying Conventional Wisdom 143
tion of supremacy are functionally identical. Moreover, if t
state constitutions of these select states required the use of the
state amending process to adopt a supremacy clause, then th
requirement was equally applicable to the adoption of the Arti-
cles of Confederation. No state did this, of course, which un-
derscores the absurdity of this argument.
Although Ackerman and Katyal never mention it, this argu-
ment was made and answered during the ratification debates.
The Republican Federalist argued that the Massachusetts con-
stitution would be effectively amended by the new federal con-
stitution.490 Accordingly, prior to ratification, permission woul
have to be obtained by first following the provisions of t
Massachusetts state constitution.491 This suggestion was neve
given serious consideration in either the Massachusetts legisla-
ture or its ratification convention.
This theory was also argued by the town of Great Barrington,
Massachusetts in proposed instructions to their original delegate
to the state ratification convention, William Whiting.492 He was
one of the Common Pleas judges from Great Barrington, Massa-
chusetts who was convicted of sedition for his role in Shay’s R
bellion.493 A Federalist writer answered such arguments by poi
ing out that, if true, they would equally demonstrate that
Articles of Confederation had been illegally adopted:
[I]f we put the credentials of our rulers in 1781 to the test; if
we dare to try the extent of their authority by the criterion of
first principles; if in our researches after truth on this point
we follow these whithersoever they will guide us, may it not
be safely and fairly asserted that the States of South Carolina
Virginia, New Jersey, Connecticut, Rhode-Island and New
Hampshire even from the date of Independence to that of
the confederation to which we are objecting, never invested
their respective Legislatures with sufficient powers perma-
nently to form and ratify such a compact.494
490.
The Republican Federalist III, MASS. CENTINEL, Jan. 9, 1787, reprinted in
DHRC, supra note 4, at 661–65.
491. See id.
492. See Draft Instructions (Nov. 26, 1787), reprinted in 5 DHRC, supra note 4,
959.
493. See id. at 958.
494. Letter from John Brown Cutting to William Short London (Jan. 9, 1788)
reprinted in 14 DHRC, supra note 4, at 493–94.
148
144
Harvard Journal of Law & Public Policy
[Vol. 40
As Ackerman and Katyal suggest, we must ask if there is ev-
idence that there was broad agreement as to the validity of the
argument among Americans at the time. The answer is clearly
no. The professors cite no contemporary evidence in support of
their interpretation of the interplay between state constitutions
and Article VI’s Supremacy Clause. And the supporting evi-
dence this article has discovered and cited above hardly rises to
the level of general contemporary agreement.
Moreover, we cannot escape the parallel between the suprema-
cy clause in Article XIII of the Articles of Confederation and the
one in Article VI of the Constitution. No serious contention was
ever made that state constitutions had to be revised before either
of these provisions should be adopted. Ackerman and Katyal’s
argument in this regard is much like the contention by the plain-
tiffs in Leser v. Garnett.495 There, the plaintiffs sought to strike the
names of women voters from the list of eligible voters on the
ground that the 19th Amendment was improperly adopted.496
One of their arguments was that the state legislatures were with-
out power to approve a constitutional amendment allowing
women to vote if the state constitution prohibited such voting.497
The plaintiffs contended that legislators who voted for the 19th
Amendment in states where suffrage was limited to males “ig-
nored their official oaths [and] violated the express provisions” of
their state constitutions.498 The Court quickly and unanimously
rejected this contention.499 State constitutions do not have to be
first amended to allow the legislature to vote to ratify amend-
ments that impliedly contravene provisions thereof.
4. The Professors’ Real Agenda
The reason that Ackerman and Katyal advance their theory
that the Constitution was adopted by a revolutionary and ille-
gal process is revealed in their article’s final section. They con-
tend that such revolutionary actions—changes in the governing
structure without adherence to the proper processes—are ap-
propriate whenever the need is sufficiently great to justify ille-
495. 258 U.S. 130 (1922).
496. Id. at 135.
497. Brief for Petitioner at 100, Leser v. Garnett, 258 U.S. 130 (1922) (No. 553).
498. Id. at 110.
499. See Leser, 258 U.S. at 137.
No. 1]
Defying Conventional Wisdom 145
gal means.500 They contend that the constitutional revolutions
of Reconstruction and those of the era of judicial activism are
just as valid as the Constitution itself:
In justifying their end run around state-centered ratifica-
tion rules, nineteenth-century Republicans and twentieth-
century Democrats not only resembled eighteenth-century
Federalists in asserting more nationalistic conceptions of
We the People than their opponents. They also sought to
give new meaning to the idea of popular sovereignty by
making it far more inclusionary than anything contemplat-
ed by the eighteenth century.501
They contend that there has been a tacit approval of all of
these revolutionary changes by the votes of the people in sub-
sequent national elections.502 However, this attempt at equiva-
lency fails on at least two levels. First, the Constitution was ap-
proved by ratification conventions directly elected by the
people.503 These elections provide the moral justification for the
claim that the Constitution was adopted by the consent of the
governed. Moreover, no state was bound by the new Constitu-
tion until the people of that state actually consented. The actual
consent of the governed was obtained.
The judicial revolution praised by Ackerman and Katyal has no
such parallel reflecting the consent of the governed. In fact, just
the opposite is true. The direct votes of the people are often over-
turned by judicial rulings as was the case in Lucas v. Forty-Fourth
General Assembly of Colorado.504 Judges cannot consent for the peo-
ple. Subsequent elections for Congress or the White House and
the passage of time do not constitute the consent of the governed
for judicial revisionist rulings. Thomas Paine, who understood a
few things about revolutions and moral consent said:
All power exercised over a nation must have some begin-
ning. It must either be delegated or assumed. There are no
other sources. All delegated power is trust, and all assumed
500. See Ackerman & Katyal, supra note 14, at 568–73.
501. Id. at 570–71.
502. See id. at 571–72.
503. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
at 340, 340.
504. 377 U.S. 713 (1964).
144
Harvard Journal of Law & Public Policy
[Vol. 40
As Ackerman and Katyal suggest, we must ask if there is ev-
idence that there was broad agreement as to the validity of the
argument among Americans at the time. The answer is clearly
no. The professors cite no contemporary evidence in support of
their interpretation of the interplay between state constitutions
and Article VI’s Supremacy Clause. And the supporting evi-
dence this article has discovered and cited above hardly rises to
the level of general contemporary agreement.
Moreover, we cannot escape the parallel between the suprema-
cy clause in Article XIII of the Articles of Confederation and the
one in Article VI of the Constitution. No serious contention was
ever made that state constitutions had to be revised before either
of these provisions should be adopted. Ackerman and Katyal’s
argument in this regard is much like the contention by the plain-
tiffs in Leser v. Garnett.495 There, the plaintiffs sought to strike the
names of women voters from the list of eligible voters on the
ground that the 19th Amendment was improperly adopted.496
One of their arguments was that the state legislatures were with-
out power to approve a constitutional amendment allowing
women to vote if the state constitution prohibited such voting.497
The plaintiffs contended that legislators who voted for the 19th
Amendment in states where suffrage was limited to males “ig-
nored their official oaths [and] violated the express provisions” of
their state constitutions.498 The Court quickly and unanimously
rejected this contention.499 State constitutions do not have to be
first amended to allow the legislature to vote to ratify amend-
ments that impliedly contravene provisions thereof.
4. The Professors’ Real Agenda
The reason that Ackerman and Katyal advance their theory
that the Constitution was adopted by a revolutionary and ille-
gal process is revealed in their article’s final section. They con-
tend that such revolutionary actions—changes in the governing
structure without adherence to the proper processes—are ap-
propriate whenever the need is sufficiently great to justify ille-
495. 258 U.S. 130 (1922).
496. Id. at 135.
497. Brief for Petitioner at 100, Leser v. Garnett, 258 U.S. 130 (1922) (No. 553).
498. Id. at 110.
499. See Leser, 258 U.S. at 137.
No. 1]
Defying Conventional Wisdom 145
gal means.500 They contend that the constitutional revolution
of Reconstruction and those of the era of judicial activism are
just as valid as the Constitution itself:
In justifying their end run around state-centered ratifica-
tion rules, nineteenth-century Republicans and twentieth-
century Democrats not only resembled eighteenth-century
Federalists in asserting more nationalistic conceptions of
We the People than their opponents. They also sought to
give new meaning to the idea of popular sovereignty by
making it far more inclusionary than anything contemplat-
ed by the eighteenth century.501
They contend that there has been a tacit approval of all of
these revolutionary changes by the votes of the people in sub-
sequent national elections.502 However, this attempt at equiva
lency fails on at least two levels. First, the Constitution was ap-
proved by ratification conventions directly elected by the
people.503 These elections provide the moral justification for the
claim that the Constitution was adopted by the consent of t
governed. Moreover, no state was bound by the new Consti
tion until the people of that state actually consented. The actu
consent of the governed was obtained.
The judicial revolution praised by Ackerman and Katyal has no
such parallel reflecting the consent of the governed. In fact, j
the opposite is true. The direct votes of the people are often ov
turned by judicial rulings as was the case in Lucas v. Forty-Fou
General Assembly of Colorado.504 Judges cannot consent for the peo-
ple. Subsequent elections for Congress or the White House a
the passage of time do not constitute the consent of the govern
for judicial revisionist rulings. Thomas Paine, who understood
few things about revolutions and moral consent said:
All power exercised over a nation must have some begin-
ning. It must either be delegated or assumed. There are no
other sources. All delegated power is trust, and all assumed
500. See Ackerman & Katyal, supra note 14, at 568–73.
501. Id. at 570–71.
502. See id. at 571–72.
503. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4
at 340, 340.
504. 377 U.S. 713 (1964).
149
144
Harvard Journal of Law & Public Policy
[Vol. 40
As Ackerman and Katyal suggest, we must ask if there is ev-
idence that there was broad agreement as to the validity of the
argument among Americans at the time. The answer is clearly
no. The professors cite no contemporary evidence in support of
their interpretation of the interplay between state constitutions
and Article VI’s Supremacy Clause. And the supporting evi-
dence this article has discovered and cited above hardly rises to
the level of general contemporary agreement.
Moreover, we cannot escape the parallel between the suprema-
cy clause in Article XIII of the Articles of Confederation and the
one in Article VI of the Constitution. No serious contention was
ever made that state constitutions had to be revised before either
of these provisions should be adopted. Ackerman and Katyal’s
argument in this regard is much like the contention by the plain-
tiffs in Leser v. Garnett.495 There, the plaintiffs sought to strike the
names of women voters from the list of eligible voters on the
ground that the 19th Amendment was improperly adopted.496
One of their arguments was that the state legislatures were with-
out power to approve a constitutional amendment allowing
women to vote if the state constitution prohibited such voting.497
The plaintiffs contended that legislators who voted for the 19th
Amendment in states where suffrage was limited to males “ig-
nored their official oaths [and] violated the express provisions” of
their state constitutions.498 The Court quickly and unanimously
rejected this contention.499 State constitutions do not have to be
first amended to allow the legislature to vote to ratify amend-
ments that impliedly contravene provisions thereof.
4. The Professors’ Real Agenda
The reason that Ackerman and Katyal advance their theory
that the Constitution was adopted by a revolutionary and ille-
gal process is revealed in their article’s final section. They con-
tend that such revolutionary actions—changes in the governing
structure without adherence to the proper processes—are ap-
propriate whenever the need is sufficiently great to justify ille-
495. 258 U.S. 130 (1922).
496. Id. at 135.
497. Brief for Petitioner at 100, Leser v. Garnett, 258 U.S. 130 (1922) (No. 553).
498. Id. at 110.
499. See Leser, 258 U.S. at 137.
No. 1]
Defying Conventional Wisdom 145
gal means.500 They contend that the constitutional revolutions
of Reconstruction and those of the era of judicial activism are
just as valid as the Constitution itself:
In justifying their end run around state-centered ratifica-
tion rules, nineteenth-century Republicans and twentieth-
century Democrats not only resembled eighteenth-century
Federalists in asserting more nationalistic conceptions of
We the People than their opponents. They also sought to
give new meaning to the idea of popular sovereignty by
making it far more inclusionary than anything contemplat-
ed by the eighteenth century.501
They contend that there has been a tacit approval of all of
these revolutionary changes by the votes of the people in sub-
sequent national elections.502 However, this attempt at equiva-
lency fails on at least two levels. First, the Constitution was ap-
proved by ratification conventions directly elected by the
people.503 These elections provide the moral justification for the
claim that the Constitution was adopted by the consent of the
governed. Moreover, no state was bound by the new Constitu-
tion until the people of that state actually consented. The actual
consent of the governed was obtained.
The judicial revolution praised by Ackerman and Katyal has no
such parallel reflecting the consent of the governed. In fact, just
the opposite is true. The direct votes of the people are often over-
turned by judicial rulings as was the case in Lucas v. Forty-Fourth
General Assembly of Colorado.504 Judges cannot consent for the peo-
ple. Subsequent elections for Congress or the White House and
the passage of time do not constitute the consent of the governed
for judicial revisionist rulings. Thomas Paine, who understood a
few things about revolutions and moral consent said:
All power exercised over a nation must have some begin-
ning. It must either be delegated or assumed. There are no
other sources. All delegated power is trust, and all assumed
500. See Ackerman & Katyal, supra note 14, at 568–73.
501. Id. at 570–71.
502. See id. at 571–72.
503. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4,
at 340, 340.
504. 377 U.S. 713 (1964).
144
Harvard Journal of Law & Public Policy
[Vol. 40
As Ackerman and Katyal suggest, we must ask if there is ev-
idence that there was broad agreement as to the validity of the
argument among Americans at the time. The answer is clearly
no. The professors cite no contemporary evidence in support of
their interpretation of the interplay between state constitutions
and Article VI’s Supremacy Clause. And the supporting evi-
dence this article has discovered and cited above hardly rises to
the level of general contemporary agreement.
Moreover, we cannot escape the parallel between the suprema-
cy clause in Article XIII of the Articles of Confederation and the
one in Article VI of the Constitution. No serious contention was
ever made that state constitutions had to be revised before either
of these provisions should be adopted. Ackerman and Katyal’s
argument in this regard is much like the contention by the plain-
tiffs in Leser v. Garnett.495 There, the plaintiffs sought to strike the
names of women voters from the list of eligible voters on the
ground that the 19th Amendment was improperly adopted.496
One of their arguments was that the state legislatures were with-
out power to approve a constitutional amendment allowing
women to vote if the state constitution prohibited such voting.497
The plaintiffs contended that legislators who voted for the 19th
Amendment in states where suffrage was limited to males “ig-
nored their official oaths [and] violated the express provisions” of
their state constitutions.498 The Court quickly and unanimously
rejected this contention.499 State constitutions do not have to be
first amended to allow the legislature to vote to ratify amend-
ments that impliedly contravene provisions thereof.
4. The Professors’ Real Agenda
The reason that Ackerman and Katyal advance their theory
that the Constitution was adopted by a revolutionary and ille-
gal process is revealed in their article’s final section. They con-
tend that such revolutionary actions—changes in the governing
structure without adherence to the proper processes—are ap-
propriate whenever the need is sufficiently great to justify ille-
495. 258 U.S. 130 (1922).
496. Id. at 135.
497. Brief for Petitioner at 100, Leser v. Garnett, 258 U.S. 130 (1922) (No. 553).
498. Id. at 110.
499. See Leser, 258 U.S. at 137.
No. 1]
Defying Conventional Wisdom 145
gal means.500 They contend that the constitutional revolution
of Reconstruction and those of the era of judicial activism are
just as valid as the Constitution itself:
In justifying their end run around state-centered ratifica-
tion rules, nineteenth-century Republicans and twentieth-
century Democrats not only resembled eighteenth-century
Federalists in asserting more nationalistic conceptions of
We the People than their opponents. They also sought to
give new meaning to the idea of popular sovereignty by
making it far more inclusionary than anything contemplat-
ed by the eighteenth century.501
They contend that there has been a tacit approval of all of
these revolutionary changes by the votes of the people in sub-
sequent national elections.502 However, this attempt at equiva
lency fails on at least two levels. First, the Constitution was ap-
proved by ratification conventions directly elected by the
people.503 These elections provide the moral justification for the
claim that the Constitution was adopted by the consent of t
governed. Moreover, no state was bound by the new Consti
tion until the people of that state actually consented. The actu
consent of the governed was obtained.
The judicial revolution praised by Ackerman and Katyal has no
such parallel reflecting the consent of the governed. In fact, j
the opposite is true. The direct votes of the people are often ov
turned by judicial rulings as was the case in Lucas v. Forty-Fou
General Assembly of Colorado.504 Judges cannot consent for the peo-
ple. Subsequent elections for Congress or the White House a
the passage of time do not constitute the consent of the govern
for judicial revisionist rulings. Thomas Paine, who understood
few things about revolutions and moral consent said:
All power exercised over a nation must have some begin-
ning. It must either be delegated or assumed. There are no
other sources. All delegated power is trust, and all assumed
500. See Ackerman & Katyal, supra note 14, at 568–73.
501. Id. at 570–71.
502. See id. at 571–72.
503. See Journals of Congress (Sept. 28, 1787), reprinted in 1 DHRC, supra note 4
at 340, 340.
504. 377 U.S. 713 (1964).
150
146
Harvard Journal of Law & Public Policy
[Vol. 40
power is usurpation. Time does not alter the nature and
quality of either.505
The parallel fails. First, the Constitution was lawfully adopt-
ed. Second, the Constitution was approved by the direct vote of
the people before anyone was obligated by it. Nothing in this
history provides a parallel to establish an aura of legal or moral
legitimacy for judges who wish to exercise the self-created pre-
rogative to regularly rewrite the Constitution starting the first
Monday of every October.
IV. CONCLUSION
When we raise our hands to swear allegiance to the Constitu-
tion and promise to defend it against all enemies foreign or
domestic, we can do so with a clean conscience. The Constitu-
tional Convention was called by the states. The delegates
obeyed the instructions from their respective legislatures as to
the scope of their authority. The new method for ratification
was a separate act of the Constitutional Convention that was
approved by a unanimous Congress and all thirteen legisla-
tures. The consent of the governed was obtained by having
special elections for delegates to every state ratifying conven-
tion. No state was bound to obey the Constitution until its peo-
ple gave their consent. Moral legitimacy and legal propriety
were in competition at times. But in the end, the Framers found
a way to satisfy both interests.
The Constitution of the United States was validly and legally
adopted.
505. THOMAS PAINE, THE RIGHTS OF MAN, reprinted in 2 THE WRITINGS OF
THOMAS PAINE, at 265, 428 (Moncure Daniel Conway ed., 1894).
In mid-April, on Good Friday, the George Soros funded left-wing policy group Common Cause declared war on COS, announcing
the formation of the largest radical left alliance in US history.
Almost every radical, liberal, progressive, Marxist group in America signed onto a coalition to oppose the use of
Article V and the Convention of States movement as provided in our Constitution. In doing so, they accomplished something
that even Hillary Clinton and Bernie Sanders couldn’t: they unified the radical left with one voice.
Access to Independence, Inc.
(Madison, WI)
ACE-AFSCME Local 2250
ACLU of Colorado
African American Health Alliance
African American Ministers In
Action
AFSCME 2960
AFSCME 4041
AFSCME Council 3
AFSCME Council 32
AFSCME Council 67
AFSCME Iowa Council 61
AFSCME Retirees
AFSCME Retirees Chapter 32
AFSCME Retirees Chapter 97
Alaska AFL-CIO
Alliance for Justice
America Votes Colorado
American Federation of Labor
and Congress of Industrial
Organizations (AFL–CIO)
American Federation of State,
County and Municipal Employees
American-Arab Anti-Discrimination
Committee
Americans for Democratic Action
(ADA)
Asian and Pacific Islander American
Vote
Baltimore Neighborhoods, Inc.
Bend the Arc Jewish Action
Benedictine Sisters of Baltimore
Better Idaho
Bhutanese Community Association
of Pittsburgh
Brennan Center for Justice
California Common Cause
Campaign Legal Center
Center for American Progress
Center for Community Change
Center for Law and Social Policy
(CLASP)
Center for Media and Democracy
Center for Medicare Advocacy
Center for Popular Democracy
Center on Budget and Policy
Priorities
Children’s Defense Fund
Citizen Action of Wisconsin
Citizens for Responsibility and
Ethics in Washington (CREW)
City of Chino Housing Division
Clean Elections Texas
Cleveland Nonviolence Network
CNY Fair Housing, Inc
Coalition on Human Needs
Colorado AFL-CIO
Colorado Common Cause
Colorado Ethics Watch
Colorado Fiscal Institute
Colorado Sierra Club
Colorado WINS
Common Cause
Common Cause Connecticut
Common Cause Delaware
Common Cause Florida
Common Cause Georgia
Common Cause Hawaii
Common Cause Illinois
Common Cause Indiana
Common Cause Kentucky
Common Cause Maryland
Common Cause Michigan
Common Cause Minnesota
Common Cause Nebraska
What you see below is taken directly from the press release
Issued on Good Friday, April 14, 2017, by Common Cause:
“The undersigned organizations strongly urge state legislatures to oppose efforts to pass a resolution to call for a
constitutional convention. We also strongly urge state legislatures to rescind any application for an Article V constitutional
convention in order to protect all Americans’ constitutional rights and privileges from being put at
risk and up for grabs.” ~ Common Cause
HILLARY CLINTON
PLANNED PARENTHOOD
GEORGE SOROS
151
146
Harvard Journal of Law & Public Policy
[Vol. 40
power is usurpation. Time does not alter the nature and
quality of either.505
The parallel fails. First, the Constitution was lawfully adopt-
ed. Second, the Constitution was approved by the direct vote of
the people before anyone was obligated by it. Nothing in this
history provides a parallel to establish an aura of legal or moral
legitimacy for judges who wish to exercise the self-created pre-
rogative to regularly rewrite the Constitution starting the first
Monday of every October.
IV. CONCLUSION
When we raise our hands to swear allegiance to the Constitu-
tion and promise to defend it against all enemies foreign or
domestic, we can do so with a clean conscience. The Constitu-
tional Convention was called by the states. The delegates
obeyed the instructions from their respective legislatures as to
the scope of their authority. The new method for ratification
was a separate act of the Constitutional Convention that was
approved by a unanimous Congress and all thirteen legisla-
tures. The consent of the governed was obtained by having
special elections for delegates to every state ratifying conven-
tion. No state was bound to obey the Constitution until its peo-
ple gave their consent. Moral legitimacy and legal propriety
were in competition at times. But in the end, the Framers found
a way to satisfy both interests.
The Constitution of the United States was validly and legally
adopted.
505. THOMAS PAINE, THE RIGHTS OF MAN, reprinted in 2 THE WRITINGS OF
THOMAS PAINE, at 265, 428 (Moncure Daniel Conway ed., 1894).
In mid-April, on Good Friday, the George Soros funded left-wing policy group Common Cause declared war on COS, announcing
the formation of the largest radical left alliance in US history.
Almost every radical, liberal, progressive, Marxist group in America signed onto a coalition to oppose the use of
Article V and the Convention of States movement as provided in our Constitution. In doing so, they accomplished something
that even Hillary Clinton and Bernie Sanders couldn’t: they unified the radical left with one voice.
Access to Independence, Inc.
(Madison, WI)
ACE-AFSCME Local 2250
ACLU of Colorado
African American Health Alliance
African American Ministers In
Action
AFSCME 2960
AFSCME 4041
AFSCME Council 3
AFSCME Council 32
AFSCME Council 67
AFSCME Iowa Council 61
AFSCME Retirees
AFSCME Retirees Chapter 32
AFSCME Retirees Chapter 97
Alaska AFL-CIO
Alliance for Justice
America Votes Colorado
American Federation of Labor
and Congress of Industrial
Organizations (AFL–CIO)
American Federation of State,
County and Municipal Employees
American-Arab Anti-Discrimination
Committee
Americans for Democratic Action
(ADA)
Asian and Pacific Islander American
Vote
Baltimore Neighborhoods, Inc.
Bend the Arc Jewish Action
Benedictine Sisters of Baltimore
Better Idaho
Bhutanese Community Association
of Pittsburgh
Brennan Center for Justice
California Common Cause
Campaign Legal Center
Center for American Progress
Center for Community Change
Center for Law and Social Policy
(CLASP)
Center for Media and Democracy
Center for Medicare Advocacy
Center for Popular Democracy
Center on Budget and Policy
Priorities
Children’s Defense Fund
Citizen Action of Wisconsin
Citizens for Responsibility and
Ethics in Washington (CREW)
City of Chino Housing Division
Clean Elections Texas
Cleveland Nonviolence Network
CNY Fair Housing, Inc
Coalition on Human Needs
Colorado AFL-CIO
Colorado Common Cause
Colorado Ethics Watch
Colorado Fiscal Institute
Colorado Sierra Club
Colorado WINS
Common Cause
Common Cause Connecticut
Common Cause Delaware
Common Cause Florida
Common Cause Georgia
Common Cause Hawaii
Common Cause Illinois
Common Cause Indiana
Common Cause Kentucky
Common Cause Maryland
Common Cause Michigan
Common Cause Minnesota
Common Cause Nebraska
What you see below is taken directly from the press release
Issued on Good Friday, April 14, 2017, by Common Cause:
“The undersigned organizations strongly urge state legislatures to oppose efforts to pass a resolution to call for a
constitutional convention. We also strongly urge state legislatures to rescind any application for an Article V constitutional
convention in order to protect all Americans’ constitutional rights and privileges from being put at
risk and up for grabs.” ~ Common Cause
HILLARY CLINTON
PLANNED PARENTHOOD
GEORGE SOROS
152
Common Cause New Mexico
Common Cause New York
Common Cause North Carolina
Common Cause Ohio
Common Cause Oregon
Disability Rights Oregon
Common Cause Pennsylvania
Common Cause Rhode Island
Common Cause Texas
Common Cause Wisconsin
Communications
Workers of America (CWA)
Community Advocates
Public Policy Institute
Community at Holy Family Manor
(Pittsburgh, PA)
Congregation of the Humility of
Mary
Connecticut Fair Housing Center,
Inc.
Conscious Talk Radio
Courage Campaign
Culinary Union
CWA Local 1081
Daily Kos
Democracy 21
Disability Rights Maine
Disability Rights Maryland
Disability Rights North Carolina
Disabled in Action of
Greater Syracuse Inc.
Dominicans of Sinsinawa -
Leadership Council
Downstreet Housing & Community
Development
Dream Defenders
Earthjustice
Eclectablog
Economic Policy Institute
EMILY’s List
End Domestic Abuse Wisconsin
Equality Ohio
Every Voice
Fair Elections Legal Network
Fair Housing Advocates of Northern
California
Fair Housing Center of Central
Indiana
Fair Housing Center of Northern
Alabama
Fair Housing Center of West
Michigan
Faith in Florida
Faith in Public Life
Family Values at Work
Florida Consumer Action Network
Food Research & Action Center
(FRAC)
Franciscan Action Network
Fuse Washington
Grandparents United for Madison
Public Schools
Greater New Orleans Fair Housing
Action Center
Greenpeace USA
Harlingen Community Development
Corporation
Holy Family Home and Shelter, Inc
Idaho AFL-CIO
Independence First
Independent Living Resources
(Durham, NC)
International Association of Fire
Fighters
Iowa AFL-CIO
Jobs With Justice
Just Harvest (Pittsburgh, PA)
Kansas AFL-CIO
Kentucky AFL-CIO
League of Women Voters of
Colorado
League of Women Voters of
Minnesota
League of Women Voters of New
Mexico
League of Women Voters of the
United States
League of Women Voters of
Wisconsin
Long Island Housing Services, Inc.
Madison-area Urban Ministry
Main Street Alliance
Maine AFL-CIO
Maryland Center on Economic
Policy
Massachusetts AFL-CIO
Metropolitan Milwaukee Fair
Housing Council
Mi Familia Vota
Midstate Independent Living
Consultants
Minnesota AFL-CIO
Minnesota Citizens for Clean
Elections
Mississippi AFL-CIO
Monarch Housing Associates
Montana AFL-CIO
NAACP
Nashville CARES
National Asian Pacific American
Families Against Substance Abuse
National Association of Social
Workers
National Association of Social
Workers, Wisconsin Chapter
National Council of Asian Pacific
Americans (NCAPA)
National Council of Jewish Women
National Council of La Raza Action
Fund
National Disability Institute
National Disability Rights Network
National Education Association
(NEA)
National Employment Law Project
(NELP)
National Fair Housing Alliance
National Korean American Service
& Education Consortium
National Partnership for Women &
Families
National WIC Association
National Women’s Law Center
Nebraskans for Civic Reform
New Era Colorado
New Hampshire AFL-CIO
New Jersey Association of
Mental Health and Addiction
New Mexico Hospital Workers Union
(1199NM)
North Dakota AFL-CIO
Oak Park River Forest Food Pantry
Ohio Voice
Oklahoma AFL-CIO
OMNI Center for Peace, Justice &
Ecology
One Wisconsin Now
Options for Independent Living Inc.
(Green Bay, WI)
P.S., A Partnership
People Demanding Action
People For the American Way
Planned Parenthood of Southern
New England
Progress Colorado
Progress Florida
Progress Michigan
Progress Now
Progress Ohio
Project IRENE
Public Justice Center
Schenectady Inner City Ministry
School Sisters of Saint Francis
(Milwaukee)
SEIU Colorado
Service Employees International
Union (SEIU)
Sierra Club
Sisters of Charity of Nazareth
Congregational Leadership
Social Security Works
Solidarity Committee of the Capital
District
South Carolina AFL-CIO
South Dakota AFL-CIO
Southwest Fair Housing Council
State Innovation Exchange
Survival Coalition of Disability
Organization of Wisconsin
Tabitha’s Way
The Arc of the United States
The Arc Wisconsin
The Forum for Youth Investment
The Public Interest
The Voting Rights Institute
The Wisconsin Democracy
Campaign
The Xaverian Brothers
Toledo Area Jobs with Justice
Toledo Fair Housing Center
UNITE HERE
United Food and Commercial
Workers (UFCW)
Virginia AFL-CIO
Virginia Civic Engagement Table
Vision for Children at Risk
Voice for Adoption
Vote Vets Action Fund
Washington AFL-CIO
Washington Community Action
Network
West Virginia Citizen Action Group
Wisconsin AFL-CIO
Wisconsin Aging Advocacy Network
Wisconsin Coalition of Independent
Living Centers, Wisconsin
Community Action Program
Association (WISCAP)
Wisconsin Council on Children and
Families
Wisconsin Democracy Campaign
Wisconsin Faith Voices for Justice
Wisconsin Voices
Women’s Voices Women Vote Action
Fund Working America
Wyoming AFL-CIO
The Article V mechanism is safe, and it is the only
constitutionally eff ective means available to do what
is so essential for our nation.
The Constitution’s Framers foresaw a day when the federal
government would exceed and abuse its enumerated
powers, thus placing our liberty at risk. George Mason was
instrumental in fashioning a mechanism by which “we the
people” could defend our freedom—the ultimate check on
federal power contained in Article V of the Constitution.
Article V provides the states with the opportunity to
propose constitutional amendments through a process
controlled by the states from beginning to end on all
substantive matters.
A convention to propose amendments is convened when
34 state legislatures pass resolutions (applications) on an
agreed topic or set of topics. The Convention is limited to
considering amendments on these specifi ed topics.
While some have expressed fears that an Article V
convention might be misused or improperly controlled by
Congress, it is our considered judgment that the checks
Signed,
The
JEFFERSON
STATEMENT
*Original signers of the Jeff erson Statement
Randy E. Barnett*
Charles J. Cooper*
John C. Eastman*
Michael P. Farris*
Robert P. George*
C. Boyden Gray*
Mark Levin*
Nelson Lund
Andrew McCarthy*
Mark Meckler*
Mat Staver
When the nation’s fi nest legal minds gathered at the Jeff erson Hotel in Washington, D.C., they set out to
consider arguments for and against the use of Article V to restrain federal power. But like the Founding
Fathers in 1787, they soon realized that they agreed unanimously that the Article V option is safe, eff ective,
and necessary.
These experts, who subsequently signed the Jeff erson Statement reproduced below, rejected the argument
that an Article V convention is likely to be misused or improperly controlled by Congress. They shared the
conviction that Article V provides the only constitutionally eff ective means to restore our federal system,
and they formed the core of our Legal Board of Reference, whose names you can fi nd on the opposite side
of this document.
MARK LEVIN
MARK MECKLER
MICHAEL FARRIS
and balances in the Constitution are more than sufficient
to ensure the integrity of the process.
The Article V mechanism is safe, and it is the only
constitutionally eff ective means available to do what is so
essential for our nation—restoring robust federalism with
genuine checks on the power of the federal government.
We share the Founders’ conviction that proper decision-
making structures are essential to preserve liberty. We
believe that the problems facing our nation require several
structural limitations on the exercise of federal power. While
fi scal restraints are essential, we believe the most eff ective
course is to pursue reasonable limitations, fully in line with
the vision of our Founders, on the federal government.
Accordingly, I endorse the Convention of States Project,
which calls for an Article V convention for “the sole purpose
of proposing amendments that impose fi scal restraints on
the federal government, limit the power and jurisdiction of
the federal government, and limit the terms of offi ce for its
offi cials and for members of Congress.” I hereby agree to
serve on the Legal Board of Reference for the Convention
of States Project.
153
Common Cause New Mexico
Common Cause New York
Common Cause North Carolina
Common Cause Ohio
Common Cause Oregon
Disability Rights Oregon
Common Cause Pennsylvania
Common Cause Rhode Island
Common Cause Texas
Common Cause Wisconsin
Communications
Workers of America (CWA)
Community Advocates
Public Policy Institute
Community at Holy Family Manor
(Pittsburgh, PA)
Congregation of the Humility of
Mary
Connecticut Fair Housing Center,
Inc.
Conscious Talk Radio
Courage Campaign
Culinary Union
CWA Local 1081
Daily Kos
Democracy 21
Disability Rights Maine
Disability Rights Maryland
Disability Rights North Carolina
Disabled in Action of
Greater Syracuse Inc.
Dominicans of Sinsinawa -
Leadership Council
Downstreet Housing & Community
Development
Dream Defenders
Earthjustice
Eclectablog
Economic Policy Institute
EMILY’s List
End Domestic Abuse Wisconsin
Equality Ohio
Every Voice
Fair Elections Legal Network
Fair Housing Advocates of Northern
California
Fair Housing Center of Central
Indiana
Fair Housing Center of Northern
Alabama
Fair Housing Center of West
Michigan
Faith in Florida
Faith in Public Life
Family Values at Work
Florida Consumer Action Network
Food Research & Action Center
(FRAC)
Franciscan Action Network
Fuse Washington
Grandparents United for Madison
Public Schools
Greater New Orleans Fair Housing
Action Center
Greenpeace USA
Harlingen Community Development
Corporation
Holy Family Home and Shelter, Inc
Idaho AFL-CIO
Independence First
Independent Living Resources
(Durham, NC)
International Association of Fire
Fighters
Iowa AFL-CIO
Jobs With Justice
Just Harvest (Pittsburgh, PA)
Kansas AFL-CIO
Kentucky AFL-CIO
League of Women Voters of
Colorado
League of Women Voters of
Minnesota
League of Women Voters of New
Mexico
League of Women Voters of the
United States
League of Women Voters of
Wisconsin
Long Island Housing Services, Inc.
Madison-area Urban Ministry
Main Street Alliance
Maine AFL-CIO
Maryland Center on Economic
Policy
Massachusetts AFL-CIO
Metropolitan Milwaukee Fair
Housing Council
Mi Familia Vota
Midstate Independent Living
Consultants
Minnesota AFL-CIO
Minnesota Citizens for Clean
Elections
Mississippi AFL-CIO
Monarch Housing Associates
Montana AFL-CIO
NAACP
Nashville CARES
National Asian Pacific American
Families Against Substance Abuse
National Association of Social
Workers
National Association of Social
Workers, Wisconsin Chapter
National Council of Asian Pacific
Americans (NCAPA)
National Council of Jewish Women
National Council of La Raza Action
Fund
National Disability Institute
National Disability Rights Network
National Education Association
(NEA)
National Employment Law Project
(NELP)
National Fair Housing Alliance
National Korean American Service
& Education Consortium
National Partnership for Women &
Families
National WIC Association
National Women’s Law Center
Nebraskans for Civic Reform
New Era Colorado
New Hampshire AFL-CIO
New Jersey Association of
Mental Health and Addiction
New Mexico Hospital Workers Union
(1199NM)
North Dakota AFL-CIO
Oak Park River Forest Food Pantry
Ohio Voice
Oklahoma AFL-CIO
OMNI Center for Peace, Justice &
Ecology
One Wisconsin Now
Options for Independent Living Inc.
(Green Bay, WI)
P.S., A Partnership
People Demanding Action
People For the American Way
Planned Parenthood of Southern
New England
Progress Colorado
Progress Florida
Progress Michigan
Progress Now
Progress Ohio
Project IRENE
Public Justice Center
Schenectady Inner City Ministry
School Sisters of Saint Francis
(Milwaukee)
SEIU Colorado
Service Employees International
Union (SEIU)
Sierra Club
Sisters of Charity of Nazareth
Congregational Leadership
Social Security Works
Solidarity Committee of the Capital
District
South Carolina AFL-CIO
South Dakota AFL-CIO
Southwest Fair Housing Council
State Innovation Exchange
Survival Coalition of Disability
Organization of Wisconsin
Tabitha’s Way
The Arc of the United States
The Arc Wisconsin
The Forum for Youth Investment
The Public Interest
The Voting Rights Institute
The Wisconsin Democracy
Campaign
The Xaverian Brothers
Toledo Area Jobs with Justice
Toledo Fair Housing Center
UNITE HERE
United Food and Commercial
Workers (UFCW)
Virginia AFL-CIO
Virginia Civic Engagement Table
Vision for Children at Risk
Voice for Adoption
Vote Vets Action Fund
Washington AFL-CIO
Washington Community Action
Network
West Virginia Citizen Action Group
Wisconsin AFL-CIO
Wisconsin Aging Advocacy Network
Wisconsin Coalition of Independent
Living Centers, Wisconsin
Community Action Program
Association (WISCAP)
Wisconsin Council on Children and
Families
Wisconsin Democracy Campaign
Wisconsin Faith Voices for Justice
Wisconsin Voices
Women’s Voices Women Vote Action
Fund Working America
Wyoming AFL-CIO
The Article V mechanism is safe, and it is the only
constitutionally eff ective means available to do what
is so essential for our nation.
The Constitution’s Framers foresaw a day when the federal
government would exceed and abuse its enumerated
powers, thus placing our liberty at risk. George Mason was
instrumental in fashioning a mechanism by which “we the
people” could defend our freedom—the ultimate check on
federal power contained in Article V of the Constitution.
Article V provides the states with the opportunity to
propose constitutional amendments through a process
controlled by the states from beginning to end on all
substantive matters.
A convention to propose amendments is convened when
34 state legislatures pass resolutions (applications) on an
agreed topic or set of topics. The Convention is limited to
considering amendments on these specifi ed topics.
While some have expressed fears that an Article V
convention might be misused or improperly controlled by
Congress, it is our considered judgment that the checks
Signed,
The
JEFFERSON
STATEMENT
*Original signers of the Jeff erson Statement
Randy E. Barnett*
Charles J. Cooper*
John C. Eastman*
Michael P. Farris*
Robert P. George*
C. Boyden Gray*
Mark Levin*
Nelson Lund
Andrew McCarthy*
Mark Meckler*
Mat Staver
When the nation’s fi nest legal minds gathered at the Jeff erson Hotel in Washington, D.C., they set out to
consider arguments for and against the use of Article V to restrain federal power. But like the Founding
Fathers in 1787, they soon realized that they agreed unanimously that the Article V option is safe, eff ective,
and necessary.
These experts, who subsequently signed the Jeff erson Statement reproduced below, rejected the argument
that an Article V convention is likely to be misused or improperly controlled by Congress. They shared the
conviction that Article V provides the only constitutionally eff ective means to restore our federal system,
and they formed the core of our Legal Board of Reference, whose names you can fi nd on the opposite side
of this document.
MARK LEVIN
MARK MECKLER
MICHAEL FARRIS
and balances in the Constitution are more than sufficient
to ensure the integrity of the process.
The Article V mechanism is safe, and it is the only
constitutionally eff ective means available to do what is so
essential for our nation—restoring robust federalism with
genuine checks on the power of the federal government.
We share the Founders’ conviction that proper decision-
making structures are essential to preserve liberty. We
believe that the problems facing our nation require several
structural limitations on the exercise of federal power. While
fi scal restraints are essential, we believe the most eff ective
course is to pursue reasonable limitations, fully in line with
the vision of our Founders, on the federal government.
Accordingly, I endorse the Convention of States Project,
which calls for an Article V convention for “the sole purpose
of proposing amendments that impose fi scal restraints on
the federal government, limit the power and jurisdiction of
the federal government, and limit the terms of offi ce for its
offi cials and for members of Congress.” I hereby agree to
serve on the Legal Board of Reference for the Convention
of States Project.
154
Randy E. Barnett
is a
graduate of Harvard Law
School and a professor at
the Georgetown University
Law Center. He represented
the National Federation of Independent
Business in its constitutional challenge to the
Aff ordable Care Act.
Charles J. Cooper
is a
founding member and
chairman of Cooper & Kirk,
PLLC. A member of the
Reagan Administration,
Mr. Cooper has argued before the Supreme
Court, and he spent much of his career
defending constitutional rights as a top lawyer
for the National Rifl e Association.
John C. Eastman
is the
Founding Director of the
Center for Constitutional
Jurisprudence, a public
interest law firm affiliated
with the Claremont Institute. Prior to joining
the Fowler School of Law faculty, he served
as a law clerk with Justice Clarence Thomas at
the Supreme Court of the United States and
served in the Reagan administration.
Michael P. Farris
is the co-
founder of the Convention
of States Project, the
Chancellor of Patrick Henry
College, and Chairman of
the Home School Legal Defense Association.
During his career as a constitutional appellate
litigator, he has served as lead counsel in
the United States Supreme Court, eight
federal circuit courts, and the appellate
courts of thirteen states. Mr. Farris is widely
respected for his leadership in the defense of
homeschooling, religious freedom, and the
preservation of American sovereignty.
Robert P. George
is one
of the nation’s leading
conservative legal scholars
and is the founding director
of the James Madison Program in American
Ideals and Institutions. He is chairman of the
United States Commission on International
Religious Freedom (USCIRF) and has served
as a presidential appointee to the United
States Commission on Civil Rights.
C. Boyden Gray
is the
founding partner of Boyden
Gray & Associates, in
Washington, D.C. Prior
to founding his law firm,
Ambassador Gray served as Legal Counsel
to Vice President Bush (1981–1989), as
White House Counsel in the administration
of President George H.W. Bush (1989–1993),
and as counsel to the Presidential Task Force
on Regulatory Relief during the Reagan
Administration.
Mark Levin
is one of
America’s preeminent
constitutional lawyers and
the author of several New
York Times bestselling books
including Men in Black (2007), Liberty and
Tyranny (2010), Ameritopia (2012) and The
Liberty Amendments (2013). Mr. Levin has
served as a top advisor to several members
of President Ronald Reagan’s Cabinet—
including as Chief of Staff to the Attorney
General of the United States, Edwin Meese.
Nelson Lund
is University
Professor at George Mason
University School of Law.
After clerking for Justice
Sandra Day O’Connor,
he served in the White House as Associate
Counsel to President George H.W. Bush.
Andrew McCarthy
is a
bestselling author, a Senior
Fellow at National Review
Institute, and a contributing
editor at National Review.
Mr. McCarthy is a former Chief Assistant
U.S. Attorney in New York.
info@conventionofstates.com
M a r k M e c k l e r
i s
President of Convention
of States Foundation, the
parent organization of
the Convention of States
Project. Mr. Meckler is one of the nation’s
most eff ective grassroots activists. After he
co-founded and served as the National
Coordinator of the Tea Party Patriots, he
founded Citizens for Self-Governance in 2012
to bring the concept of “self governance”
back to American government.
Mat Staver,
B.A. M.A., J.D.,
B.C.S.
, serves as Senior Pastor,
Founder and Chairman of
Liberty Counsel; Chairman
of Liberty Counsel Action,
Faith and Liberty, National Pro-life Center,
Freedom Federation, Salt & Light Council,
and National House of Hope; Founder and
Chairman of Liberty Relief International; Vice
President and Chief Counsel of the National
Hispanic Christian Leadership Conference
(which includes over 42,000 Evangelical
Hispanic churches); Trustee, Timothy Plan, a
family of mutual funds traded in New York
and Tel Aviv; and former dean of Liberty
University School of Law. Mat has the highest
AV rating for attorneys and is board certifi ed
in Appellate Practice by the Florida Bar. He
has argued before the U.S. Supreme Court.
He has published many scholarly and popular
articles, brochures, numerous booklets and
books, including Why Israel Matters, Covenant
Journal, and Eternal Vigilance. He has produced
the “Why Israel Matters” original TV, as well
as produces and hosts Faith & Freedom, an
11-minute daily radio program, Freedom’s
Call, a 60-second daily radio program, and
Freedom Alive, a 30-minute weekly TV
program. He is married to Anita, who is
president of Liberty Counsel. Mat and Anita
have one daughter, three grandchildren, and
two great grandchildren.
“The Article V mechanism is safe, and it is the only constitutionally effective
means available to do what is so essential for our nation.”
Support the only solution that is as big as the problem.
Sign the petition at ConventionofStates.com.
www.conventionofstates.com
155
Randy E. Barnett
is a
graduate of Harvard Law
School and a professor at
the Georgetown University
Law Center. He represented
the National Federation of Independent
Business in its constitutional challenge to the
Aff ordable Care Act.
Charles J. Cooper
is a
founding member and
chairman of Cooper & Kirk,
PLLC. A member of the
Reagan Administration,
Mr. Cooper has argued before the Supreme
Court, and he spent much of his career
defending constitutional rights as a top lawyer
for the National Rifl e Association.
John C. Eastman
is the
Founding Director of the
Center for Constitutional
Jurisprudence, a public
interest law firm affiliated
with the Claremont Institute. Prior to joining
the Fowler School of Law faculty, he served
as a law clerk with Justice Clarence Thomas at
the Supreme Court of the United States and
served in the Reagan administration.
Michael P. Farris
is the co-
founder of the Convention
of States Project, the
Chancellor of Patrick Henry
College, and Chairman of
the Home School Legal Defense Association.
During his career as a constitutional appellate
litigator, he has served as lead counsel in
the United States Supreme Court, eight
federal circuit courts, and the appellate
courts of thirteen states. Mr. Farris is widely
respected for his leadership in the defense of
homeschooling, religious freedom, and the
preservation of American sovereignty.
Robert P. George
is one
of the nation’s leading
conservative legal scholars
and is the founding director
of the James Madison Program in American
Ideals and Institutions. He is chairman of the
United States Commission on International
Religious Freedom (USCIRF) and has served
as a presidential appointee to the United
States Commission on Civil Rights.
C. Boyden Gray
is the
founding partner of Boyden
Gray & Associates, in
Washington, D.C. Prior
to founding his law firm,
Ambassador Gray served as Legal Counsel
to Vice President Bush (1981–1989), as
White House Counsel in the administration
of President George H.W. Bush (1989–1993),
and as counsel to the Presidential Task Force
on Regulatory Relief during the Reagan
Administration.
Mark Levin
is one of
America’s preeminent
constitutional lawyers and
the author of several New
York Times bestselling books
including Men in Black (2007), Liberty and
Tyranny (2010), Ameritopia (2012) and The
Liberty Amendments (2013). Mr. Levin has
served as a top advisor to several members
of President Ronald Reagan’s Cabinet—
including as Chief of Staff to the Attorney
General of the United States, Edwin Meese.
Nelson Lund
is University
Professor at George Mason
University School of Law.
After clerking for Justice
Sandra Day O’Connor,
he served in the White House as Associate
Counsel to President George H.W. Bush.
Andrew McCarthy
is a
bestselling author, a Senior
Fellow at National Review
Institute, and a contributing
editor at National Review.
Mr. McCarthy is a former Chief Assistant
U.S. Attorney in New York.
info@conventionofstates.com
M a r k M e c k l e r
i s
President of Convention
of States Foundation, the
parent organization of
the Convention of States
Project. Mr. Meckler is one of the nation’s
most eff ective grassroots activists. After he
co-founded and served as the National
Coordinator of the Tea Party Patriots, he
founded Citizens for Self-Governance in 2012
to bring the concept of “self governance”
back to American government.
Mat Staver,
B.A. M.A., J.D.,
B.C.S.
, serves as Senior Pastor,
Founder and Chairman of
Liberty Counsel; Chairman
of Liberty Counsel Action,
Faith and Liberty, National Pro-life Center,
Freedom Federation, Salt & Light Council,
and National House of Hope; Founder and
Chairman of Liberty Relief International; Vice
President and Chief Counsel of the National
Hispanic Christian Leadership Conference
(which includes over 42,000 Evangelical
Hispanic churches); Trustee, Timothy Plan, a
family of mutual funds traded in New York
and Tel Aviv; and former dean of Liberty
University School of Law. Mat has the highest
AV rating for attorneys and is board certifi ed
in Appellate Practice by the Florida Bar. He
has argued before the U.S. Supreme Court.
He has published many scholarly and popular
articles, brochures, numerous booklets and
books, including Why Israel Matters, Covenant
Journal, and Eternal Vigilance. He has produced
the “Why Israel Matters” original TV, as well
as produces and hosts Faith & Freedom, an
11-minute daily radio program, Freedom’s
Call, a 60-second daily radio program, and
Freedom Alive, a 30-minute weekly TV
program. He is married to Anita, who is
president of Liberty Counsel. Mat and Anita
have one daughter, three grandchildren, and
two great grandchildren.
“The Article V mechanism is safe, and it is the only constitutionally effective
means available to do what is so essential for our nation.”
Support the only solution that is as big as the problem.
Sign the petition at ConventionofStates.com.
www.conventionofstates.com
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156
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