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VOLUME XXI, NUMBER 4
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July / August 2005


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  COVER STORY  

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by Michael P. Farris, Esq.

We want to instill in our children a deep respect for the Constitution of the United States, but as our students deepen their understanding of American history, they will encounter varying interpretations of the events surrounding the Constitution's adoption. For example, some claim that the Founders circumvented existing law in the adoption process. In addressing such questions from his Constitutional Law students, Michael Farris undertook new research into the original records to find an answer to this troubling question. The following essay is taken from his revised textbook, Constitutional Law for Enlightened Citizens.

From the time the Constitutional Convention concluded until today, there has been a contentious allegation that it was a runaway convention and that the Constitution was illegally adopted. For example, historian Joseph Ellis, in his recent bestseller Founding Brothers, repeats the following charges against the Constitutional Convention:

Over the subsequent two centuries critics of the Constitutional Convention have called attention to several of its more unseemly features: the convention was extralegal, since its explicit mandate was to revise the Articles of Confederation, not replace them;. . . the machinery for ratification did not require the unanimous consent dictated by the Articles themselves. There is truth in each of these allegations.1

These two charges are serious because they suggest that under the law existing at the time, the Constitution was actually illegally adopted. These two allegations can be summarized as follows: (1) a new document was proposed rather than mere changes to the Articles of Confederation as specified in the call of the convention; and (2) the new Constitution allowed for ratification by only nine states whereas the Articles of Confederation required all thirteen states to approve any changes before they became effective.

On the surface, these two accusations are plausible. Indeed, the essentially unanimous view of historians is that the second of these charges is true. It should be noted, however, that most of these same historians believe that the end of saving the Republic justified the means of violating the Articles' rules concerning the amendment process.

However, a fresh look at historical documents and clearly established legal principles shows that both of these attacks on the integrity of the Constitution are in error.

How we got the Constitution: A procedural review

At the request of Virginia, the Annapolis Convention convened with only five states in attendance. The convention had been called solely for the purpose of considering changes to the Articles of Confederation relative to the regulation of commerce. The delegates quickly concluded that a second convention needed to be called with broader authority and with more states in attendance. On September 11, 1786, the delegates adopted this resolution:

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 [U]nion, 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.

On February 21, 1787, Congress responded by voting to authorize a convention in Philadelphia under these terms:

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.

The authorization for the convention was for the "sole and express purpose of revising the Articles of Confederation." But, as is obvious, the Constitutional Convention recommended an entirely new document—or was it?

No one would suggest that the Constitutional Convention had violated the scope of its authority if it had recommended two or three modest changes in the text of the Articles but also added a recommendation that the name of the document be changed to "The Constitution of the United States." Thus, the mere fact there was a name change does not make the work of the convention illegal.

In fact, it is normal legislative practice to change the names of existing laws. Moreover, it is a recognized legal principle that the title of a law is no part of the body of the law. Thus, changing the name is of no legal consequence.

There were no limits placed on the authority of the convention to make amendments. It could recommend one change or a thousand.

Additionally, some matters of substance did not change from the Articles of Confederation to the Constitution.

 

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Article I of the Articles of Confederation named the nation the United States of America. This did not change in the Constitution.
 

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Article II asserted that the states retained all power not specifically delegated. This was not changed, as was made evident by numerous declarations to this effect by the various state ratification documents. Moreover, the Tenth Amendment was later added to make this clear.
 

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Article III said that the states formed a mutual defense compact. The operation of the military changed under the Constitution, but the duty of defense of the whole nation did not change.
 

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Article IV had a provision that people moving from state to state had to be treated as citizens in the new states when they arrived—a provision that appears in Article IV, Section 2, of the Constitution with only modest changes in wording.

In 1787, delegates to the Constitutional Convention gathered here, at Independence Hall in Philadelphia, to debate proposed amendments to the Articles of Confederation.
This is sufficient to demonstrate that indeed the Constitution was a series of recommended amendments to the Articles of Confederation. Many additional phrases and concepts, including the General Welfare Clause, were carried over from the Articles to the Constitution. So it is simply not true to assert that its content was "an entirely new document."

To be sure, the proposed amendments were presented as a package deal to be voted up or down, rather than as a series of individual amendments. But there was nothing in the document that created the Philadelphia Convention that prevented the convention from recommending that the proposed amendments be approved en masse. In fact, no credible politician would have ever thought it wise to propose twenty or thirty amendments to be considered by Congress on a one-by-one basis. Any recommended changes would necessarily require a series of political compromises to reach a balance. It simply made common political sense that the amendments would be submitted as a single package deal. And there is nothing at all in the call of the convention that would suggest that such an approach was improper.

Remember that the resolution from Congress gave the Constitutional Convention the charge to make recommendations to the Articles and then to submit its recommendations to Congress and then the states.

After the convention completed its work, on September 17, 1787, the delegates officially transmitted the proposed Constitution to Congress, which was then meeting in New York. At this point, the Constitution was nothing more than a mere recommendation. Until Congress and the state legislatures acted, no ratification action was possible.

On September 28, 1787, eleven days after receiving the recommendation from the Philadelphia Convention, Congress voted to approve the submitted recommendation. The official language read as follows:

Resolved Unanimously that the said Report with the resolutions and letter accompanying the same be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case.

Note that Congress was the agency that had said that the convention was called "for the sole and express purpose of revising the Articles of Confederation." And this same Congress unanimously approved the proposed Constitution and sent it on to the states. If the convention had indeed exceeded its authority, then Congress was the body with the legal authority and the clear opportunity to say, "We reject this proposal because this document violated your authority."

Thus, by examining the content of the document as well as the unanimous approval of Congress, it is clear that the Constitution was an appropriate, albeit substantial, amendment to the Articles of Confederation.

This brings us to the second charge levied by critics to prove that the Constitution was illegally adopted: the fact that the Constitution was to be ratified by just nine states instead of the unanimous vote of thirteen states required by the Articles of Confederation.

It is misleading to focus on the number of states required for ratification, because there was actually a more important change in the process. Under the Articles of Confederation, proposed amendments were to be sent to the state legislatures. Under the Constitution, they were to be ratified by state conventions. Therefore, before we can even consider the switch from thirteen states to nine, we have to ask: how was the switch made from ratification by legislatures to ratification by conventions?

If things were going to be done properly under the Articles of Confederation, then all thirteen states would have to approve of this change in process before the Constitution could be legally adopted by this new method. Remember the new method had two components: (1) ratification by conventions, and (2) ratification by nine states only.

Let us once again look at the language from Congress that approved the work of the Constitutional Convention.

Resolved Unanimously that the said Report with the resolutions and letter accompanying the same be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case.

Congress did not send the Constitution to the state conventions. The report was "transmitted to the several legislatures" (emphasis mine). The legislatures had to act, if they agreed, to authorize the election of delegates "in conformity to the resolves of the Convention." This last clause meant that the states were being asked to approve this new process that authorized the election of delegates to a ratification convention and that nine ratifications would be sufficient. Both matters were clearly specified in the "resolves of the Convention."

Thus, before any state could submit the proposed Constitution to a ratification convention, its state legislature had to approve this new process. If all thirteen state legislatures in fact approved this change in process, then the Articles of Confederation would be fully satisfied.

This analysis looks at ratification as a two-step process:

 

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The state legislatures approved the new process.
 

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The state ratification conventions approved the new Constitution.

As long as all thirteen state legislatures approved the change in process, then it would be perfectly legal under the Articles for nine state conventions to ratify the Constitution. However, it is very important to note that without the approval for the change in process by the legislatures, it would not be legal to submit the Constitution to state conventions no matter how many ratifications were required for approval.

Eleven states held ratification conventions and approved the Constitution between December 17, 1787, and July 26, 1788. The government under the Constitution went into effect on March 4, 1789. It is self-evident that the legislatures of each of these states voted to approve the new process, since these conventions required prior legislative approval.

This political cartoon printed around the time of the Constitution's adoption criticizes the state conventions in North Carolina and Rhode Island for not supporting the new charter.
However, we must also consider North Carolina and Rhode Island, which did not ratify the Constitution before it was put in operation. If North Carolina and Rhode Island had failed to approve or had rejected this change in process, then the critics would be right—the Constitution would have been adopted contrary to the rules of the Articles of Confederation requiring unanimity among the states.

But the North Carolina legislature clearly approved this change in process. The legislature authorized the election of delegates for this express purpose. On August 2, 1788, the North Carolina convention tabled any further consideration of the Constitution by a vote of 183 to 83. The convention delegates attached a number of recommended amendments that they wanted to see adopted by a second general convention before ratification. This was a tacit rejection of the Constitution as written. But this rejection by the convention has no bearing on the action of the legislature that had previously approved the change in the process.

An unconventional convention

This leaves Rhode Island. It is generally thought that Rhode Island simply ignored the entire process until after the new government under the Constitution had already begun operation. And if this were true, then the second charge against the Constitution (that it did not properly follow the amendment process under the Articles of Confederation) would be true.

However, in February 1788, the legislature of Rhode Island adopted a resolution submitting the Constitution of the United States to a vote of all the people of the state.2 In effect, this act appointed all the people of the entire state as delegates to the ratification convention. The people were to assemble on the fourth Monday of March in "conventions" in each town. These Rhode Island ratification conventions were different from those in any other state, but nothing in the text of the transmittal from Congress prohibited Rhode Island from adopting this format for a ratification convention. These town conventions were held on March 24, 1789, and the Constitution was overwhelmingly rejected (2,708 to 237). The defeat was more lopsided than it might have been, since most federalists boycotted the meetings.

But this rejection by the Rhode Island convention does not detract from the fact that the Rhode Island legislature approved the process that had been suggested by the Philadelphia Convention and had been officially approved by Congress. Without this approval by the legislature, the town conventions could have never been held.

Therefore, the Articles of Confederation were fully satisfied. Before the Constitution was agreed to, Congress and all thirteen state legislatures approved a new process for changing the Articles of Confederation. By the unanimous action of thirteen state legislatures, ratification conventions were convened—an explicit approval of the new process that included the transfer of decision making from legislatures to conventions and changed the required number of approvals from thirteen to nine.

Both of these accusations against the Constitution are disproved by a careful examination of the multiple steps in the process. The Constitutional Convention did not exceed its authority by incorporating all of its proposed amendments into a single document with a new name—as is proven by the unanimous acceptance of the report by the very agency that called the convention into session. Moreover, Congress and all thirteen state legislatures approved the new ratification process as required by the Articles.

The Constitution of the United States was legally adopted.


Endnotes

1 Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (New York: Alfred A. Knopf, 2000), 8.

2 The resolution adopted by the Rhode Island legislature is printed in the March 8, 1788, edition of the Providence Gazette and Country Journal, no. 1262, p. 2, col. 2–3.


About the author

Chairman of the Board and General Counsel Michael Farris cofounded HSLDA with Mike Smith in 1983 and served as president through 2000, when he became the president of Patrick Henry College. Farris is a constitutional lawyer, a published author of six non-fiction works and three novels, an ordained minister, and a leading pro-family activist on Capitol Hill. He and his wife Vickie have ten children and seven grandchildren, and have been homeschooling since 1982.