Real History of 1787 Convention   Leave a comment

The fame of the 1787 Constitutional Convention has encouraged us to think of any convention created for constitutional purposes as a “constitutional convention.” We are further led to believe that a “constitutional convention” is an assembly with limitless (plenary) power to draft or re-draft the basic law of a nation or state.

Alarmists claim such a convention could repeal the Bill of Rights, restore slavery and work other fundamental changes. The notion that a national convention is inherently plenary was primarily a product of the 19th century. In the Founders’ 18th century view, conventions might be plenary, but most of them enjoyed only restricted authority. The Founders viewed government officials as wielding fiduciary responsibility and falling under agency law, which meant the agents (in this case, the delegates to a convention) could act only as authorized and when they made recommendations beyond their authority, the principal (in this case the public) was not obligated to accept the recommendation.

During the period between independence and the writing of the Constitution, states repeatedly sent delegates with limited powers to conventions to address specific problems. The Pennsylvania Constitution of 1776 and the Vermont Constitution of 1786 both provided for limited amendments conventions, each restricted in authority by a charge from the state “council of censors,” while the Massachusetts Constitution provided for conventions to consider amendments proposed by the towns. The Georgia Constitution of 1777 prescribed a procedure that might have been the template for the convention procedure in Article V:

No alteration shall be made in this constitution without petitions from a majority of the counties … at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid.

All four of these state constitutions provided for a method by which general ideas for amendment were referred to a limited-purpose convention, which then undertook the actual drafting.

 It is a common misunderstanding that a convention for proposing amendments must be plenary, because the convention could simply choose to exceed the scope of its call and there’d be no way to stop it. It could rewrite the Constitution, establish a junta, seize control of the military and become the new USSR. More realistically, it might send amendments not contemplated by the call to the states for ratification, and the states would simply rubber-stamp whatever was. Obviously, we must avoid that at all costs. (Danger, Danger, Will Robinson)

This fear mongering points to the 1787 federal convention, which (it is claimed) was called “for the sole and express purpose of revising the Articles of Confederation,” but which proved to be a “runaway” convention, scrapping the Articles and writing an entirely new Constitution instead. History may have been changed just a bit on this subject.

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