Like so many other opponents of the use of Article V, our current naysayer repeats the charge that the Founders behaved illegally in a runaway convention. Here are her exact words: “The delegates had instructions to meet and amend the national charter of that day” (the “Articles of Confederation”), but they violated those instructions, she charges, and “produced a whole new governing document.” She even urges people to consider the “historical facts.”

I would respectfully suggest our naysaying friend has been getting her historical facts from public school history textbooks and other such secondary sources. Real history is found in the relevant original documents from the events in question.

Undoubtedly, the history book she read bases its argument on the document issued by the Confederation Congress on February 21, 1787. This document was supposedly the “call” for the convention that issued the rules the delegates were supposed to follow. That resolution merely expressed the “opinion of Congress that it is expedient” a convention be called as previously requested by the Annapolis Convention. Then it said the convention was “for the sole and express purpose of revising the Articles of Confederation” by making “such alterations and provisions therein” that will “render the federal constitution adequate to the exigencies of the Government & the preservation of the Union.”

It is beyond legitimate debate that the delegates to the Constitutional Convention were not given their instructions from this resolution in Congress. There are three reasons this is so:

1. Seven states had already appointed their delegates to the Constitutional Convention PRIOR to the time Congress passed this resolution. The states gave their delegates (or commissioners) a different set of instructions. As my colleague with the Convention of States Project, Professor Robert Natelson, has documented in the Florida Law Review, both Virginia and New Jersey passed resolutions three months earlier appointing their delegates for a convention for “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.” (Spelling modernized.) By the time all of the delegates were appointed, 10 of the 12 states that sent delegations had given their delegates similar instructions. Only the legislatures from New York and Massachusetts had been told their delegates to participate for the sole purpose of revising the Articles.

2. Congress didn’t have the authority to call the Convention. Congress was a creature of the Articles of Confederation. The Articles contained no provision for calling such a convention but rather recited the plain fact that the States were still sovereign entities that retained all the attributes of sovereignty not expressly delegated. The States clearly possessed the authority to appoint delegates to a convention of states and to give them instructions on their task at the convention. The delegates could only be instructed by their states and not by Congress.

3. It is plain that the states were meeting as sovereign entities and, in effect, were meeting to negotiate a modification of their existing treaty. They were there to “devise and discuss” a modified plan of government. It was clear that the Convention had no formal authority to adopt anything. The vast majority of states expressly said that the recommendation of the Convention would be adopted only “when agreed to in Congress, and confirmed by the several States.” Such language was found in both the report of the Annapolis Convention and the February 21st resolution by Congress.

James Wilson (delegate from Pennsylvania) summed up the Founders’ own view of their authority. They were “authorized to conclude nothing, but . . . at liberty to propose any thing.”

The naysayer’s argument, as usual, then switches to the fact that the Constitution changed the method for ratification. As I have pointed out for years in articles and the textbook I authored on Constitutional Law, the big change was not the change in the number of states needed, but the fact that it was to be ratified by state conventions rather than by the legislatures. However, the naysayers overlook the fact that both Congress and all thirteen state legislatures approved this new process.

Under the rules of international law (a subject in which I have an LLM from the University of London), those actions clearly constitute a unanimous agreement among sovereignties that effectively changed the rules for ratification. Congress and all 13 states were required by the Articles to agree to any changes. And it was exactly by that process that the new ratification process was approved.

The delegates did not exceed their authority. The ratification process was not illegally changed. The Constitution was adopted in a perfectly legal process.

And for the life of me, I can’t understand why people consider themselves constitutionalists if they think it was illegally adopted. It is like thinking George Washington was a great American hero, but suspecting that he was also a British spy.

The only “runaway” aspect of this conversation is the naysayers’ imaginations.

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