Summary: In 1787 we had a runaway Convention. But the Founders had good reasons for their actions, clearly stated in the Federalist Papers. The words have the same meaning and power today, and give the same hope and peril for any future efforts to change the Constitution.
This is the second in a series:
(1) Is it time to take the drastic step of calling a Constitutional Convention?
(3) Could a new Constitutional Convention help reform America? Is it worth the risk?
Contents
- Why we’re taught that the 1787 convention was a unique event
- Did we have a runaway Convention in 1787?
- The significance for us of the Conventions actions.
- For more information
(1) Why we’re taught that the 1787 convention was a unique event
It’s vital that citizens believe that the origin of a regime is sui generis, a unique and unrepeatable episode in history. This makes the regime a permanent aspect of society, unless overthrown from without. One vote, one time creates a regime — which can be tweaked but not replaced. So we do not teach children that the Continental Congress created the First Republic in 1777, based on the Articles of Confederation. Or how it was overthrown in 1787.
Under the Articles, the First Republic had a clear and simple procedure for amendments: Article 13:
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.
(2) Did we have a runaway Convention in 1787?
Advocates of a Convention assure us that not only will a new Convention remain within the bounds set for it — proposing only the specific kinds of changes intended by the States. These conclusions rely on close legal reasoning and aggressive guessing about unknowable future scenarios. Examples:
- “Constitutional Convention: A Safe Political Option”, Paul J. Weber (Prof Political Science, U Louisville, KY), Journal of Law & Politics, Winter 1986 — Subscription only.
- Unfounded Fears: Myths and Realities of a Constitutional Convention, Paul J. Weber (Prof Political Science, U Louisville, KY) and Barbara Perry (Asst Prof of Political Science, Sweet Briar College), — See Amazon.
Some go beyond these guesses about the future, stating that the 1787 Convention itself was not a runaway — that it did not propose changes beyond those authorized by the States. This requires close textual analysis of the instructions from the States (aggressive interpretation of vague language) and tightly closed eyes. For example see “Was the Constitutional Convention a ‘Runaway?’”, Rob Natelson, Independence Institute, 26 November 2010. Two points of fairly obvious rebuttal:
First, the author says that ten States “had given their delegates authority to recommend scrapping the Articles”, but gives no evidence of such explicit instructions. The quotes he gives discuss only changes to the Articles. Considering the importance of the Convention, they could have been more explicit if they wanted broader changes.
Second — and more important — whatever the language of the States’ instructions, the Convention proposed overthrowing the political regime created by the Articles of Confederation. That is, replacing it with another Constitution AND ignoring the Articles’ requirements for amendment. The Constitution was to become effective when approved by nine States (Article 7), not the unanimous approval required by the Articles. And so the process was begun to replace the First Republic by means of a peaceful revolution.
(3) How did the Founders justify overturning the First Republic?
Federalist Paper #40, by James Madison discusses this. Unlike the airy dismissals of today’s advocates for a Convention, he had to respond to accusations that the Convention had exceeded its mandate. He does so in one of the weakest passages of the Papers:
In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY.
It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of 12 States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of 12 States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation.
Madison then goes beyond legal reasoning and logic, stating the fundamental reason for the Convention’s actions goes beyond legal niceties:
Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly?
… But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD.
Madison concludes with a fine example of classical rhetoric, showing that logic is but one step on the road to liberty.
The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.
In Paper #43 Madison states reason for the Convention’s audacious actions in terms of realpolitik.
Two questions of a very delicate nature present themselves on this occasion. First, on what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? The first question is answered at once by recurring
- to the absolute necessity of the case;
- to the great principle of self-preservation;
- to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.
(3) The significance for us of the Convention’s actions
Americans in our time may find Madison’s words as compelling and irrefutable, just our forefathers did in 1787. These words have the same power now as then, and allow any future Convention to slip its reins and propose sending the Second Republic into the same dustbin of history as the First Republic.
That is not a reason to fear a Convention, just another factor for consideration. Events may compel us to follow the same course as in 1878, and strive for results as good. That’s the subject of the next chapter in this series.
(4) For more information
For a full archive of links see the FM reference page America – how can we reform it?
Other posts about reforming our Regime:
- A report card for the Republic: are we still capable of self-government?, 3 July 2008
- Are Americans still willing to bear the burden of self-government?, 27 March 2009
- Does the US government have the American people’s consent to govern?, 10 March 2010
- Is freedom the only value by which to judge governments?, 31 March 2010
- Is the US government illegitimate? If so, does that justify violent revolution?, 1 April 2010
- Which political party will best protect our liberties?, 10 September 2010
- The guilty ones responsible for the loss of our liberties, 11 September 2010
- Conservatives tells us not to worry about the Constitution’s death, 23 March 201
