The historical precedent… a modern Constitutional Convention cannot be constrained

The Birth of A New Constitution: The historical precedent which establishes a proof for the claim that a modern Constitutional Convention cannot be constrained.

Scope

Let us set aside for a moment arguments for and against a modern Constitutional Convention. Instead, let’s analyze the reasons why the John Birch Society warns against a probable run-away convention.

Proponents of a Constitutional Convention assure the people that a convention would be limited by the resolutions which empower the meeting and that the ratification of the several states would protect the people from bad amendments. The John Birch Society maintains that the language of the resolutions establishes a convention and its purpose but cannot constrain the power of the delegates who act in a capacity superior to the existing framework of government. They further maintain that the ratification process of the existing governmental framework can also be amended as it is part of the framework that is being modified. The JBS does not reference anything within Article V that supports their assertions, so how do they justify their position? It is justified by an understanding of the historical precedent established in 1787.

I. The concept of a convention: The Sovereign Will of The People

The convention concept is outlined in the Declaration of Independence when it states:

“That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

II. The Confederacy

On June 7^th, 1776, The Continental Congress issued what is now known as Lee’s Resolution:

“Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”

This resolution resulted in 1) The Declaration of Independence, 2) The Articles of Confederation and 3) The foreign alliances thought necessary to win the War for Independence.

III. A Plea For A More Perfect Union with Unanimous Consent

The Annapolis Maryland Convention in 1786 resolved that a Constitutional Convention should be called to remedy defects in the Articles of Confederation.

“Under this impression, Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavours to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, 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; and to 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 effectually provide for the same.”

This resolution was submitted to the Congress of the United States along with a letter dated Sept 14, 1786 in the hand of Mr Dickinson. The question of a Convention having been deliberated it was decided in a report on Proceedings in Congress; February 21, 1787 …

“Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for 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 & the preservation of the Union.”

IV. A Convention Called

Having the force of a resolution of the Congress, the States in turn, all but one, did appoint delegates to a convention in Philadelphia. This convention later became known as the Constitutional Convention, having derived its name from the fact that its primary fruit was the Constitution that we now discuss.

The references above illustrate that this convention was called to amend the Articles of Confederation in order to remedy its defects. Interestingly, one of its defects was considered the ratification process. Let’s look at the ratification clause in the Articles.

“Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor 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 legislatures of every State. “
Article 13 of the Articles of Confederation

This point is important, because, the ratification clause within the Constitution is held up as a safeguard for a future convention, so this precedent seems to indicate that that is a logical fallacy.

V. A Run Away Convention

Is it fair to classify the Convention of 1787 as a runaway convention? If “runaway” is defined as having exceeded the mandates upon which it was called, yes. If “runaway” is defined as having altered the ratification process, yes. The Convention of 1787 most assuredly was a runaway convention, however, that does not negate its effectiveness nor its legitimacy. It does, however, provide justification for concern and prudence when deliberating the possibility of a second convention today.

Having sited the Articles of Confederation and Congressional resolutions, it is also expedient to list the actual state resolutions which empowered the delegates:

VA: Act Authorizing the Election of Delegates, 23 November (pdf)

Sect. II. BE it therefore enacted by the General Assembly of the Commonwealth of Virginia, That seven Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized as Deputies from this Commonwealth, to meet such Deputies as may be appointed and authorised by other States, to assemble in Convention at Philadelphia, as above recommended, and 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; and in reporting such an Act for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same.

NJ: Resolution Authorizing and Empowering the Delegates, 24 November (pdf)

Resolved, That the Honorable David Brearley, William C. Houston, William Paterson and John Neilson, esquires, commissioners appointed on the part of this state, or any three of them, be, and they hereby are authorized and empowered to meet such commissioners as have been or may be appointed by the other states in the Union at the city of Philadelphia, in the commonwealth of Pennsylvania, on the second Monday in May next, 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.

PA: Act Electing and Empowering Delegates, 30 December (pdf)

Sect. II. Be it enacted, and it is hereby enacted by the Representatives of the Freemen of the Commonwealth of Pennsylvania in General Assembly met, and by the authority of the same, That Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimons, James Wilson and Governeur Morris, Esquires, are hereby appointed deputies from this state to meet in the convention of the deputies of the respective states of North-America, to be held at the city of Philadelphia, on the second day of the month of May next. And the said Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimons, James Wilson and Governeur Morris, Esquires, or any four of them are hereby  constituted and appointed deputies from this state, with powers to meet such deputies as may be appointed and authorised by the other states to assemble in the said convention at the city aforesaid, and to join with them in 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; and in reporting such act or acts for that purpose, to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the

NC: Act Authorizing the Election of Delegates, 6 January (pdf)

I. Be it therefore enacted by the General Assembly of the state of North-Carolina, and by the authority of the same, That five Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorised as Deputies from this state, to meet at Philadelphia on the first day of May next, then and there to meet and confer with such Deputies as may be appointed by the other states for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our federal union, and to procure the enlarged purposes which it was intended to effect, and that they report such an act to the General Assembly of this state, as when agreed to by them, will effectually provide for the …

DE: Act Electing and Empowering Delegates, 3 February(pdf)

Sect. 1. BE IT THEREFORE ENACTED by the General Assembly of Delaware, That George Read, Gunning Bedford, John Dickinson, Richard Bassett, and Jacob Broom, Esquires, are hereby appointed Deputies from this State to meet in the Convention of the Deputies of other States, to be held at the City of Philadelphia on the Second Day of May next. And the said George Read, Gunning Bedford, John Dickinson, Richard Bassett, and Jacob Broom, Esquires, or any Three of them, are hereby constituted and appointed Deputies from this State, with Powers to meet such Deputies as may be appointed and authorized by the other States to assemble in the said Convention at the City aforesaid, and to join with them in devising, deliberating on, and discussing, such Alterations and further Provisions, as may be necessary to render the Federal Constitution adequate to the Exigencies of the Union; and in reporting such Act or Acts for that Purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several States, may effectually provide for the same: So always and provided, that such Alterations, or further Provisions, or any of them, do not extend to that Part of the Fifth Article of the Confederation of the said States, finally ratified on the first Day of March, in the Year One Thousand Seven Hundred and Eighty-one, which declares, that “in determining Questions in the United States in Congress assembled, each State shall have one Vote.”

GA: Act Electing and Empowering Delegates, 10 February (pdf)

Be it ordained by the Representatives of the Freemen of the State of Georgia, in General  Assembly met, and by the authority of the same, That William Few, Abraham Baldwin, William Pierce, George Walton, William Houstoun, and Nathaniel Pendleton, Esquires, be, and they are hereby appointed commissioners, who, or any two or more of them, are hereby authorised as deputies from this state to meet such deputies as may be appointed and authorised by other states, to assemble in convention at Philadelphia, and to join with them in 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, and in reporting such an Act for that purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same. In case of the death of any of the said deputies, or of their declining their appointments, the Executive are hereby authorised to supply such vacancies.

NY: Assembly and Senate Authorize Election of Delegates, 26–28 February (pdf)

Resolved (if the honorable the Senate concur herein), That five delegates be appointed on the part of this state, to meet such delegates as may be appointed on the part of the other states respectively, on the second Monday in May next, at Philadelphia, for the sole and express purpose of revising the Articles of Confederation and reporting to Congress, and to the several legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the several states, render the federal constitution adequate to the exigencies of government and the preservation of the Union; and that in case of such concurrence, the two houses of the legislature will meet, on Thursday next, at such place as the honorable the Senate shall think proper, for the purpose of electing the said delegates, by joint ballot.

MA: Senate Amendment to the House Substitute, 9 March(pdf)

And it is further Resolved, that the Said Delegates on the part of this Commonwealth be, and they are hereby instructed not to acceed to any alterations or additions that may be proposed to be made in the present Articles of Confederation, which may appear to them, not to consist with the true republican Spirit and Genius of the Said Confederation: and particularly that they by no means interfere with the fifth of the Said Articles which provides, “for the annual election of Delegates in Congress, with a power reserved to each State to recal its Delegates, or any of them within the Year & to send others in their stead for the remainder of the year— And which also provides, that no person shall be capable of being a Delegate for more than three years in any term of six years, or being a Delegate shall be capable of holding any Office under the United States for which he or any other for his benefit, receives any salary, fees, or emolument of any kind”— Ordered that the Secretary serve the aforenamed Delegates, severally, and such others as may hereafter be appointed in their stead with an attested copy of the last foregoing resolve—

SC: Act Authorizing the Election of Delegates, 8 March (pdf)

Be it enacted by the honorable the senate and house of representatives now met and sitting in general assembly, and by the authority of the same, THAT five commissioners … by virtue of this act. shall be and are hereby authorised as deputies from this state. to meet such deputies or commissioners as may be appointed and authorised by other of the united states, to assemble in convention at the city of Philadelphia in the month of May next after passing this act. or as soon thereafter as may be, and to join with such deputies or commissioners, they being duly authorised and impowered in devising and discussing all such alterations, clauses, articles and provisions as may be thought necessary to render the federal constitution entirely adequate to the actual situation and future good government of the confederated states, and that the said deputies or commissioners, or a majority of those who shall be present, provided the state be not represented by less than two, do join in reporting such an act to the united states in congress assembled, as when approved and agreed to by them, and duly ratified and confirmed by the several states, will effectually provide for the exigencies of the union.

CT: Act Electing and Empowering Delegates, 17 May (pdf)

That the Honble William S. Johnson, Roger Sherman & Oliver Ellsworth Esqrs be, and they hereby are, appointed Delegates to attend the sd Convention, and are requested to proceed to the City of Philadelphia for that Purpose, without Delay, and the said Delegates, and in Case of Sickness or Accident, such one or more of them, as shall actually attend the said Convention, is and are hereby authorized and impowered to represent this State therein, & to confer with such Delegates appointed by the several States, for the Purposes mentioned in the sd Act of Congress, that may be present and duly empowered to act in said Convention, and to discuss upon such Alterations and Provisions, agreeable to the general Principles of Republican Government, as they shall think proper, to render the federal Constitution adequate to the Exigencies of Government, and the Preservation of the Union; and they are further directed, pursuant to the said Act of Congress, to report such Alterations and Provisions, as may be agreed to, by a Majority of the united States represented in Convention, to the Congress of the United States, and to the General Assembly of this State.

 MD: Act Electing and Empowering Delegates, 26 May (pdf)

Be it enacted, by the general assembly of Maryland, That the honourable James McHenry, Daniel of Saint Thomas Jenifer, Daniel Carroll, John Francis Mercer, and Luther Martin, Esquires, be appointed and authorised, on behalf of this state, to meet such deputies as may be appointed and authorised by any other of the United States to assemble in convention at Philadelphia, for the purpose of revising the federal system, and to join with them in considering such alterations, and further provisions, as may be necessary to render the federal constitution adequate to the exigencies of the union, and in reporting such an act for that purpose to the United States in congress assembled, as, when agreed to by them, and duly confirmed by the several states, will effectually provide for the same; and the said deputies, or such of them as shall attend the said convention, shall have full power to represent this state for the purposes aforesaid; and the said deputies are hereby directed to report the proceedings of the said convention, and any act agreed to therein, to the next session of the general assembly of this

NH: Act Electing and Empowering Delegates, 27 June (pdf)

Be it therefore enacted by the Senate and House of Representatives in general court convened, that John Langdon, John Pickering, Nicholas Gilman, and Benjamin West Esqrs be, and hereby are, appointed Commissioners; they, or any two of them, are hereby authorized, and impowered, as Deputies from this State to meet at Philadelphia said Convention, or any other place to which the said Convention may be adjourned; for the purposes aforesaid, there to confer with such deputies, as are, or may be appointed by the other States for similar purposes; and with them to discuss and decide upon the most effectual means to remedy the defects of our federal union; and to procure, and secure, the enlarged purposes which it was intended to effect, and to report such an act, to the United States in Congress, as when agreed to by them, and duly confirmed by the several States, will effectually provide for the same—

RI: REFUSAL TO APPOINT DELEGATES, 15 September 1787 (pdf)

As the Freemen at large here have the Power of electing Delegates to represent them in Congress, we could not consistantly appoint Delegates in a Convention, which might be the means of dissolving the Congress of the Union and having a Congress without a Confederation.

It is clear by the 12 resolutions empowering delegates and the refusal to do so on the part of Rhode Island that the intended purpose of the Convention was to amend the Articles not replace them but Rhode Island certainly saw the possibility of a greater change. It is also clear that the state legislatures fully expected to have an opportunity to approve or reject the plan that would be produced by the convention.

In reality, the state legislatures’ delegation of authority was their last involvement in the process. We read in the new Constitution, a new rule for ratification:

“The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same.”

The idea of unanimous consent was abrogated and the several State Legislatures were circumvented in favor of state conventions. Even the argument that the new Constitution was simply an alteration of the Articles of Confederation will not hold water for two reasons: 1) Some of the language in the new Constitution is careful to distinguish between treaties entered into under the Constitution and those entered under the ”Authority of the United States” which draws a distinction and 2) amendments to the Articles of Confederation required “such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State”; a procedure which was not followed.

Conclusion:

A new Constitutional Convention could result in a radically altered or new Constitution. There is no way to limit what will happen in Convention and there is no way to predict the mode of ratification that may arise from a new document. The idea that Congress can be bypassed by a Constitutional Convention is also dubious. Article 1 Section 8 clause 18 of the Constitution empowers Congress”

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

It is reasonable to assume, therefore that Congress will attempt to set the time, location and manner in which a proposed convention would be held. They may also deign to determine the method by which delegates would be appointed, pay for service, and other open-ended issues not specifically outlined within the Constitution. The John Birch Society is correct in its assertions. If you value liberty, you should seek alternative routes to that end. Visit http://jbs.org for their recommended alternatives.

The following youtube video may help you to better understand the issue:

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