No “Runaway” Convention   Leave a comment

The 18th century concept of agency law dictated that government representatives, acting as agents of the people, could not act outside of their authority and if they did, the principal (the consenting governed as represented by their state legislatures) were under no obligation to take up what would be viewed as a mere recommendation.

The Annapolis Convention had asked that Congress call a plenary (unlimited) convention to deal with the massive failures of the Articles of Confederation, which had – foolishly – been enacted without a clause for amendments. However, the Annapolis resolution was merely a recommendation, outside that assembly’s powers. As such, it had no legal force. It could not be the source of the power for delegates at the Philadelphia Convention.

In response to the Annapolis recommendation, Congress resolved as follows:

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 and the preservation of the Union.

This resolution contemplated a convention of narrower scope (“the sole and express purpose of revising the Articles of Confederation”). However, as its wording suggests, it also was only a recommendation. Under the strictly limited terms of the Articles, Congress had no power to call such a convention or fix the scope of the call. Because the congressional resolution was without legal force, states could participate or not as they wished and under such terms as they wished, and if they did so, they would fix the scope of their delegates’ authority. In other words, whether the Philadelphia delegates exceeded their authority is to be determined by the terms of their state commissions, not by the terms of the congressional resolution.

One state, Rhode Island, elected not to participate. Two states, Massachusetts and New York, decided to participate, but restricted their delegates’ commissions to the scope recommended by Congress. Not surprisingly, therefore, it was a Massachusetts delegate, Elbridge Gerry, who raised the question early in the convention as to that body’s authority to recommend changes extending beyond amendment of the Articles. Likewise, the New York commissions limited the three New York delegates to acting:

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.

So it was not surprising that, when it became apparent that the 1787 convention was proceeding beyond the scope of the New York commissions, two of the three New York delegates left early and never signed the Constitution.

The commissions issued by the other 10 states were much broader. They did not limit the delegates to considering alterations in the Articles, but additionally empowered them to consider general revisions of the “federal Constitution” so as to render it “adequate to the exigencies of the union.” According to usages of the time, the term “constitution” usually did not denote a particular document (such as the Articles), but rather a governmental structure as a whole. Particular documents traditionally had not been called “constitutions,” but “instruments of government,” “frames of government,” or “forms of government.” In fact, several of the early state constitutions described themselves in multiple terms.

The commissions of 10 states authorized the delegates to discuss changes necessary to render the federal political system “adequate to the exigencies” of the union. Delegates from those states were within their delegated authority to act as they did. Only the delegates from Massachusetts and New York were restricted in their scope of participation. One Massachusetts delegate, Caleb Strong, left the convention early, although he later supported the Constitution. Elbridge Gerry refused to sign, although he had (in violation of his commission) participated in the drafting. He defended himself by pointing out that without his participation, the document would have been even further from an amendment of the Articles than it turned out to be. Two Massachusetts delegates, Rufus King and Nathaniel Gorham, and one New Yorker, Alexander Hamilton, signed the document.

In addition, the credentials of the Delaware delegates, while broad enough to authorize scrapping most of the Articles, did limit the delegates in one particular way:

they were not to agree to any changes that altered the rule that “in the United States in Congress Assembled each State shall have one Vote.” Because the new federal Congress was a very different entity with a very different role than the Confederation’s

“United States in Congress Assembled,” the Delaware delegates remained within the strict letter of their commission, although they likely exceeded its spirit. Concluding, however, that eight of 39 signers exceeded their authority leaves us well short of the usual charge that the Philadelphia convention as a whole was a “runaway.” More importantly, the recommendations of the convention were merely recommendations – totally non-binding and utterly without independent legal force. Under agency law, any agent was entitled to make such recommendations, but the principals (the states) were not obligated to do as recommended. The convention did not (could not) impose its handiwork on the states or on the American people. States could approve or not as they liked, with no state bound that refused to ratify. In fact, unlike a convention for proposing amendments, the Philadelphia assembly was not even entitled to have its decisions transmitted to the states or considered by them. James Wilson summed up the delegates’ position as “authorized to conclude nothing, but … at liberty to propose any thing.”

Regardless if the federal convention was plenary, the conventions authorized by the Constitution all were limited. There were three kinds: (1) state conventions for ratifying the Constitution, (2) state conventions for ratifying amendments, and (3) federal conventions for proposing amendments. Just as a state ratifying convention also has no inherent authority unilaterally to rewrite the state constitution, a convention for proposing amendments has no authority unilaterally to rewrite the U.S. Constitution. As its name indicates, the convention is limited to proposing amendments.

I’m not just surmising this. Madison made this clear while ratification was still pending. In a November 1788 letter to George Lee Turberville, he distinguished between a convention that considers “first principles,” which “cannot be called without the unanimous consent of the parties who are to be bound to it” and a convention for proposing amendments, which could be convened under the “forms of the Constitution” by “previous application of 2/3 of the State legislatures.”

Additionally, the federal convention delegates actively considered including in the Constitution a provision for future plenary conventions, but specifically rejected that approach. Edmund Randolph’s initial sketch in the Committee of Detail and the first draft of the eventual Constitution by that committee both contemplated plenary conventions that would prepare and adopt amendments. During the proceedings, the delegates opted instead for a convention that would merely propose amendments. Later on, Roger Sherman moved to revert to a plenary convention, but his motion was soundly rejected. Principal credit for replacing a plenary convention with a convention for proposing amendments belongs to Elbridge Gerry. He objected to a draft authorizing the convention to modify the Constitution without state approval. The other delegates agreed, considered a requirement that any amendments the convention adopted be approved by two-thirds of the states, but later strengthening that requirement to three-quarters. The final wording came primarily from the pen of James Madison, who during the ratification process, explained the difference between a plenary convention and a limited one:

The former is based on “first principles,” and unanimous consent is necessary of all states to be bound, while the latter is held under the Constitution, so unanimity is not necessary.

Madison’s ally at the Virginia ratifying convention, future Chief Justice John Marshall, also distinguished between the former plenary convention held in Philadelphia and the more narrow amending procedure:

“The difficulty we find in amending the Confederation will not be found in amending this Constitution. Any amendments, in the system before you, will not go to a radical [i.e., fundamental] change; a plain way is pointed out for the purpose.”

 Another ally, George Nicholas, distinguished between plenary constitutional conventions and limited-purpose conventions. Limited-purpose conventions had “no experiments to devise; the general and fundamental regulations being already laid down.”

In the same vein, James Iredell, a Federalist leader who later sat on the U.S. Supreme Court, emphasized that proposals from an amendments convention had to be approved by three-fourths of the states.

It is clear that a convention for proposing amendments is a limited-purpose assembly and not a plenary or “constitutional” convention.

So why persist in interpreting Article V as an open gate to a “runaway” convention?

It’s a rhetorical ploy to terrify otherwise sensible people from pursuing a course some see as a threat to their amassed power.

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