OPINION: Did Convention Delegates Exceed Legal Authority?
By: Robert M. Owens, J.D.
The U.S. Constitution was adopted in convention on September 17, 1787 at
Independence Hall in Philadelphia. The convention had begun in May and during the course of
that hot Pennsylvania summer, stunning political events occurred. Events that would forever
alter the course of our nation. Events tantamount to revolution.
The Declaration of Independence shocked the world in 1776. A year later in 1777 the
Articles of Confederation were adopted as a perpetual binding compact between the states. The
shackles of Britain were finally tossed aside in 1783 with the Treaty of Paris which ended formal
hostilities with King George III. For eight years the United States was governed by the Articles
of Confederation. However, a series of events, notably Shay’s Rebellion, served as a catalyst to
drive 12 of the 13 states to call for a Federal Convention to amend the Articles of Confederation.
That convention was called to order in Philadelphia in May 1787. The United States has not had
another Constitutional Convention since.
There was no serious attempt to propose any amendments to the Articles of
Confederation in Philadelphia. To the contrary, the Articles of Confederation were almost
immediately “trash canned”. A gag order was put into place to ensure all further deliberations
were secret. The convention then went on to expressly violate provisions of the various State
Legislatures’ authorizing resolutions that sent them to Philadelphia. The convention radically
changed the ratification system in the Articles of Confederation to dramatically lower the
threshold needed to ratify (from 100% to 2/3), and then “bolted the door shut behind them” by
raising the super majority threshold (from 2/3 to 3/4) needed to modify the Constitution after its
initial ratification.
Legal Authority to Act
Was this all legal? Was this a “Runaway Convention?” Was this another revolution?
What legal Authority did the 55 Delegates to the 1787 Philadelphia Constitutional Convention
have? The answers are revealed through an understanding of how a convention derives its power
and how the concept of separation of powers applies to a convention in American jurisprudence.
In America, a Constitutional Convention is a sovereign body that derives its power
directly from the people. There is no intermediatory. Its mandate is to fulfill the directives of
the Declaration of Independence, “to institute new Government, laying its foundation on such
principles and organizing its powers in such form, as to them shall seem most likely to effect
their Safety and Happiness.”
The doctrine of “separation of powers” is a key feature of the convention method of
drafting a constitution. The concept of separation of powers is found again and again in many
variations that permeate American governmental structure. Examples include the bicameral
legislature, the three branches of federal government and the concept of federalism wherein
federal, state and local governments each play a separate and distinct role.
In the context of a convention for drafting a constitution, separation of powers refers to
the fact that a legislature may enact laws that are subject to the Constitution, but they are
incompetent to draft the form of government itself. Conventions are specifically tasked with
drafting governmental systems, but they have no place promulgating laws pursuant to any system
they develop. In this manner, a Convention cannot tell a legislature what laws to pass. And a
legislature cannot limit or control a Convention.
The combination of 1.) a philosophy that says a free people may form an entirely new
system of government, and 2.) an unrestrained convention, thus provides a definitive answer to
the questions posed above. An American Federal Constitutional Convention is vested with
specific authority to craft a system of government. So long as the convention does not violate
“inalienable rights,” the Convention may construct, without further impediment, a system of
government “in such form, as to them shall seem most likely to effect their Safety and
Happiness.”
“Counsel of Censors”
The evolution of American law on the matter of the power and autonomy of a
Constitutional Convention grew from initial uses to craft State Constitutions following the break
with England, with the first example being employed in Pennsylvania and called a “Council of
Censors.” According to Historian Gordon Wood, one of the foremost experts on founding era
American history, the Council of Censors “did represent the first and only provision in 1776 for
calling a body distinct from a legislature to amend a constitution, and as such was used
effectively in 1786 by the Vermonters, who had in 1777 copied almost verbatim the
Pennsylvania Constitution of 1776.”
Massachusetts and New Hampshire soon followed Pennsylvania’s example. From there
on, other states followed. Dr. Wood states, “Only a Convention of Delegates chosen by the
people for that express purpose and no other, as the South Carolina legislature after four years of
bitter contention finally admitted in 1787, could establish or alter a constitution.” The end result
was a mechanism that permitted for revolution when needed and provided for it in a peaceful
way, “It not only enabled the Constitution to rest on an authority different from the legislature’s,
but it actually seemed to have legitimized revolution.”
Accordingly, the Delegates to the 1787 Philadelphia Convention were solidly within their
legal rights to abrogate the Articles of Confederation and craft an entirely new system of
government inclusive of changing the ratification process. In fact, once a Convention is
convened, a revolution is not just possible, it is expected. To be clear, a Constitutional
Convention in the American political experience has these critical ingredients that, when mixed,
are greater than the sum of the initial parts:
- Provides an outlet for peaceful revolution, and the opportunity to enact a completely
new system of government in conformity with the Declaration of Independence. - It is subject to and protected by a separation of powers from federal and state
legislative bodies. This fact prohibits a Convention from both creating a system of
government and then running that same system of government, but it also prohibits
legislative bodies from limiting or interfering with their designated work once they
are convened.
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American vs. English Constitutional Conventions
The American concept of a Constitutional Convention differs from the English
experience. In England, the revolutionaries cut off the King’s head, then ask “Now what?” The
English Convention method was born of necessity and most notably used in the somewhat
awkward times when a monarch is being deposed by force or otherwise replaced. However, in
the English example, the legal authority for a Convention to act was wanting at best, and quite
possibly treason. The only real determiner of legitimacy was which end of the sword you were
standing at when the matter was called to question.
18 th Century Misunderstandings, Modern Confusion
Modern historical treatments relating to the issue of the Philadelphia delegates legal
authority to create an entirely new system of government have been hampered by poor
scholarship. This is made possible in part as there was a wide view of the powers of a
Convention expressed by various people of importance at that time. No doubt, this has led to
confusion today in understanding the powers of a Convention as untrained historians can cherry
pick 18 th century quotes that match their desired position without understanding the context and
acceptance of those various positions among their contemporaries. Opportunities for such
confusion take several forms.
Rhode Island refused to participate in the Convention at all. Others went to Philadelphia,
saw the Convention as having improperly overstepped its authority, and argued against the
document it produced. Some agreed that the Convention was out of bounds but that the result
was necessary and thus the usurpation was acceptable. None of these arguments won the day.
James Madison and those in his camp, often referred to a “Federalists,” rejected these
claims. Madison argued that the Convention had absolute, unfettered legal authority to draft a
new system of government. He cited the Declaration of Independence as authority. Madison’s
opinions and arguments ultimately won out both on the Convention floor and in the ratification
debates that followed.
Madison may have won the argument, but not without some controversy. On September
15, 1787, Rhode Island issued a Resolution explaining why they refused to send Delegates to the
Convention and why they saw the whole affair as unnecessary and dangerous. The resolution
argued that a Convention could very well mean the end of the Articles of Confederation: “As the
Freemen at large here have the power of electing Delegates to represent them in Congress, we
could not consistently appoint Delegates in a convention, which might be a means of dissolving
the congress of the Union and having a Congress without a Confederation.” And that such a
result would be an open breach of Article XIII of the Articles of Confederation, describing the
profound consequences of the broken “Compact” as causing the nation to be “all lost in a
Common ruin.”
There was an organized opposition group to Madison known as the Anti-Federalists.
Chief among their number was Patrick Henry who said of the convention, “That they exceeded
their power is perfectly clear…the federal Convention ought to have amended the old system –
for this purpose they were solely delegated. The object of their mission extended to no other
considerations.” During ratification debates, a Delegate from Pennsylvania, Robert Whitehall,
objected even more vociferously:
“Can it be said that the late Convention did not assume powers to which they had
no legal title? On the contrary, Sir, it is clear that they set aside the laws under
which they were appointed, and under which alone they could derive any
legitimate authority, they arrogantly exercised any powers they found convenient
to their object, and, in the end, they have overthrown that government which they
were called upon to amend, in order to introduce one of their own fabrication.”
John Lansing was a Delegate from New York. What he saw in the early days of
the Convention was so abhorrent to his view of the powers of the Convention, he made a
scene on the convention floor and the abruptly left Philadelphia on July 10, 1787 never to
return. Just before he left, he made the following comments from the floor, “The power
of the Convention was restrained to amendments of a federal nature…the acts of
Congress, the tenor of the acts of the States, the commissions produced by the several
Deputations, all proved this….it was unnecessary and improper to go further.”
Other respected founding era luminaries believed that legal boundaries were crossed, but
such abuses were justified by the circumstances at hand. Edmund Randolph was a respected
Delegate from Virginia. Early in the Convention process, the issue of the power of the
Convention was a matter of significant discussion. In the authoritative primary source document
known as “Notes on the Convention”, which are handwritten notes taken by James Madison, the
following exchange of ideas as to the legal authority of the delegates to scrap the Article of
Confederation took place on the Convention floor, June 16, 1787:
William Patterson: “Let us return to our States, and obtain larger powers, not assume them of ourselves.”
Edmund Randolph: “Mr. Randolph. was not scrupulous on the point of power. When
the salvation of the Republic was at stake, it would be treason to
our trust, not to propose what we found necessary. He painted in
strong colours, the imbecility of the existing confederacy, & the
danger of delaying a substantial reform.”
The above conglomeration of failed arguments about the nature of how a convention
derives its power and its relationship vis-a-vis State Legislatures provides fertile ground for
inexperienced historians to build arguments that the Constitution was the product of an illegal act
or that State Legislatures can limit future Conventions or that the existing Constitutional
requirements for ratification are assured in the event of a future Convention.
Madison’s Legal Analysis
When properly understood in proper context, the matter of legal authority to act was
resolved in favor of accepting the near plenipotentiary nature of the power that is granted to an
American Constitutional Convention. This fact is documented by Madison himself, “The people
were, in fact, the fountain of all power, and by resorting to them, all difficulties were got over.
They could alter constitutions as they pleased.” Not only did this rationale carry the day on the
convention floor, the argument was persuasively used to ratify the Constitution, as this statement
from Federalist No 40 suggests: “A rigid adherence in such cases to the former [limits of power
imposed by the States], would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect
their safety and happiness.’”
The C.J.S. or “Corpus Juris Secundum” is the largest and most well respected American
legal encyclopedia in print. The entry with regard to a Constitutional Convention reads as
follows: “The members of a Constitutional Convention are the direct representatives of the
people and, as such, they may exercise all sovereign powers that are vested in the people of the
state. They derive their powers, not from the legislature, but from the people: and, hence, their
power may not in any respect be limited or restrained by the legislature. Under this view, it is a
Legislative Body of the Highest Order and may not only frame, but may also enact and
promulgate, a constitution.” This entry in the Corpus Juris Secundum correctly identifies the
nature of a Constitutional Convention with appreciation to separation of powers from a
legislature and authority to create new systems of government pursuant to the Declaration of
Independence.
Modern Legal Analysis
Multiple legal authorities have looked upon this historical record and have reached the
conclusion that a Constitutional Convention is a special body with enormous power that cannot
be controlled or limited by any legislature. Of special note, former U.S. Supreme Court Chief
Justice Warren Berger addressed the issue and opined, “[It is my] opinion that there is no
effective way to limit or muzzle the actions of a Constitutional Convention. The Convention
could make its own rules and set its own agenda.” Associate U.S. Supreme Court Justice Arthur
Goldberg addressed the matter in an Editorial published in the Miami Herald, “There is no
enforceable mechanism to prevent a Convention from reporting out wholesale changes to our
Constitution and Bill of Rights.”
Revolution
Worldwide there have been a handful of political events that can somewhat approximate
an American Constitutional Convention that have occurred since 1787. In every case without
fail there has been a radical change in governmental structure as a result. The first such example
occurred the very same year the U.S. Constitution was ratified. The most recent just resolved
last year.
In France, a convention called the National Constituent Assembly was formed in 1789.
The same separation of powers that exist in the United States did not exist in France. By 1793
the reign of terror was in full force. The death situation went from bad to worse and then to
worse yet.
In Chile, calls for a constitutional convention began in earnest in 2019. Suddenly
supported by riots and youth movements, the convention began. A once prosperous oasis of
prosperity in an otherwise bankrupt South America, Chile turned into a socialist hell hole
virtually overnight. A radically different government structure was the outcome of that
convention, and it was ratified in 2021.
Revolution is no small word and no small concept. Revolution has a massive
consequence, and we must be careful with it. Is it possible that the next convention in America
would turn out as solicitous as the last? Perhaps. But also possible is a river of blood as the deep
state oligarchs ravage what little remains of middle-class America.
