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Yes, the Constitution was adopted legally

Yes, the Constitution was adopted legally

An old myth has showed up in the media again: the myth that delegates to the 1787 Constitution Convention violated their trust—that they produced a new constitution although empowered only to propose amendments to the Articles of Confederation.

Fortunately, the claim that the 1787 convention had no authority to propose a new constitution is pure fiction. I have made the point before, but a new article by constitutional lawyer Michael Farris rebuts the myth in detail.

Its core error is the mistaken belief that the convention was called by a limited February 21, 1787 resolution of the Confederation Congress. In fact, as the wording of that resolution suggests, it was not the convention call.

Conventions of states had long been a staple of American life. They were not held pursuant to the Articles of Confederation. They operated outside the Articles, under sovereign powers reserved to the states.

Here’s how the process worked: First, an official authority, usually a state legislature, would issue a “call” inviting states to meet to address one or more issues. Then each participating state would appoint “commissioners” (delegates). The commissioners and the convention operated under then-prevailing rules of agency law. The agenda was limited by the call’s subject matter and by the instructions the majority of participating states gave their commissioners.

During the 1780s, many people thought the Articles of Confederation were inadequate. In September 1786, delegates to the five-state Annapolis Convention recommended to their respective states another convention in Philadelphia “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.”

In the 18th century the word “constitution” usually had a meaning different from that we typically employ today. At the time, “constitution” usually meant the entire political system—just as we still refer to the “unwritten British constitution.” Thus, the Annapolis conclave recommended a convention empowered to propose any changes in the political system deemed “necessary” to render the political system “adequate.”

On November 24, 1786, New Jersey appointed commissioners. On December 1, the Virginia legislature formally approved the convention in language even broader than that used at Annapolis. The Virginia lawmakers then extended an invitation by directing the governor to transmit copies of its resolution to all other states. That invitation—not any congressional resolution—represented the formal call to Philadelphia.

Over the next few weeks, Pennsylvania, North Carolina, New Hampshire, Delaware, and Georgia all accepted. None limited its delegates to amending the Articles.

In Congress, a committee headed by John Dickinson recommended endorsing Virginia’s broad call. Its recommendation would have been merely a statement of moral support with no legal effect.

But congressional delegates from New York and Massachusetts were concerned about the breadth of the call. They wanted Congress to recommend limiting the convention to amending the Articles.

Congress compromised: Instead of a recommendation one way or another, it simply stated an “opinion” that a convention should be held to amend the Articles. This is the resolution often mistaken for the call.

But this resolution had no legal effect, and the call had already been issued. Seven states already had announced participation on wider terms. They were soon joined by South Carolina, Connecticut, and Maryland.

Thus, when twelve states met in Philadelphia, ten had given their commissioners sweeping proposal powers. This led Gouverneur Morris to observe that the convention was authorized to “propose any thing.”

Eventually, the convention decided to propose an entirely new document. Of the commissioners from the two states without full power, most never signed the Constitution. One who did sign (Alexander Hamilton of New York), acted as an individual, not as a representative of his state.

Pursuant to the instructions set forth in most of the state commissions, the convention sent the Constitution to Congress. Congress unanimously sent it to the states for ratification. Eventually, popular conventions in all 13 states approved it.

All of this seems quite regular. So where did the myth of the runaway convention arise? Why has it been so persistent?

It began with opponents of the Constitution, among whom legal knowledge was not a strong point. The myth has been kept alive by people—including some academics—who are unaware of 18th century law, terminology, and convention practice.

Unfortunately, fringe groups whose idea of “defending” the Constitution is arguing that it was adopted illegally assiduously continue to perpetuate the myth.

This article originally was published in The Hill.

Forgotten Founders: Ebenezer Hazard

Forgotten Founders: Ebenezer Hazard

We celebrate leading American founders such as George Washington and James Madison. But we sometimes overlook their talented colleagues.

Forgotten Founders
Ebenezer Hazard

One of these was Ebenezer Hazard. As postmaster general under the Articles of Confederation, he helped bind the country together. As a historical editor, he preserved precious documents for a generation of American historians.

Hazard, born in 1744, was a year younger than Thomas Jefferson. He was seven years older than Madison. New parents nowadays avoid the biblical name “Ebenezer”—possibly because of its association with Charles Dickens’ Ebenezer Scrooge—but the name was more common then. (It means “stone of help.”)
Like Madison, Hazard was educated at what is now Princeton University. Unlike Madison, Hazard moved to New York City and entered business after graduation. He first worked for a mercantile firm, then for a bookseller. In 1770, he became a partner in a book selling company. However, he soon began collecting historical documents. He conceived massive republishing project to ensure that ancient materials were not permanently lost or destroyed.

Hazard spoke with many people about his document publication plan. Among them were other founders, such as Jefferson and John Adams. Both were impressed: “Hazard is certainly very capable of the business he has undertaken,” Adams wrote. “He is a genius.”

The Revolution Overtakes Events

For the moment, however, Hazard’s publication project was overtaken by the Revolution. In 1775, Americans stopped patronizing the British royal postal service, creating their own instead. Hazard became postmaster for New York. Another founder, Ben Franklin, was named postmaster general for the continent. Franklin subsequently appointed Hazard “surveyor” (inspector) for the continental post office.

In 1776, Franklin’s son-in-law, Richard Bache, succeeded Franklin as postmaster general. Bache served until his retirement in 1782.

Hazard Becomes Postmaster General for the Founders

Bache may have not been quite up to the job. But Hazard, who followed Bache as postmaster, overcame constant political interference from the Confederation Congress and made the system work. By 1785, it was earning a profit. Hazard thereby provided Congress, which had no taxing power, with desperately needed revenue. Hazard also left valuable journals of his travels throughout the country, when he undertook postal inspection tours.

In 1783 and again in 1788, congressional committees investigating postal operations gave Hazard’s administration very high marks.

Nevertheless, Hazard, like many other competent administrators before and since, was gored by the horns of politics. He became dissatisfied with the quality of service between New York and Boston. He recommended to Congress a plan, which Congress then authorized, to replace stage coaches with post riders on that New York-to-Boston route.

The transition was not smooth. There were substantial service interruptions. More seriously, Hazard offended increasingly powerful newspaper owners who had taken advantage of the coaches, which had provided the owners with free and low-cost newspaper delivery. With less room in their mail bags, post riders could not offer newspapers that perk.

The timing of the delivery snafu could not have been worse. It occurred at the height of the debates over the Constitution, when Americans eagerly sought news from other parts of the country. Opponents of the Constitution accused Hazard of blocking their newspapers and their mail in a nefarious plan to secure ratification. Some of the Constitution’s supporters thought Hazard was obstructing communications as part of an evil plan to defeat ratification.

Hazard Is Fired

George Washington was among those upset. Upon being elected president, he refused to allow Hazard to continue as postmaster general. In fact, Washington failed to notify Hazard he was being replaced or even to respond to his letters. Hazard learned in the streets that he had lost his job.

Finding a new position proved a struggle. Hazard was forced to move from New York to Philadelphia. There, he entered the insurance business and was one of the founders of the Insurance Company of North America. He also returned to his plan of copying and republishing historical documents.

During the 1790s, after Herculean exertion, Hazard published two volumes of his Historical Collections. Each volume contained more than 600 pages of charters and other documents. They covered the period from the voyages of Columbus to the year 1664.

Relying on his knowledge of book publishing and of ancient Greek, during the first decade of the 1800s Hazard provided critical editorial assistance to Charles Thomson, the secretary of the former Continental and Confederation Congresses, in Thomson’s translation of the Septuagint. This was the first translation into English of the earliest extant version of the Bible.

The efforts of this learned, religious, and diligent man proved invaluable to an entire generation of American scholars. Today, we acknowledge Ebenezer Hazard as America’s first historical editor. We also should acknowledge him as an important American founder.

An earlier article on this American founder first appeared in

The Great Forgetting

The Great Forgetting

RGNStPaulsThe Constitution was created in a special legal environment. The Founders were raised with a particular educational canon. They also had certain common experiences. During the 19th century, important details about those matters began to slip away. Constitutional law forgot them.

In other words, information crucial to understanding 18th century words was lost during the 19th century. I call this phenomenon “The Great Forgetting.”

I stress that the mistakes from the Great Forgetting were mostly innocent, well-intentioned errors by people who lacked the interpretive tools needed to recreate the Constitution’s true meaning. The Great Forgetting mistakes were not comparable to the willful distortions of the Constitution rampant in the 20th and 21st centuries.

Still, the Great Forgetting’s consequences for constitutional thought were enormous. Popular misconceptions about the Constitution arose that in some instances remain influential. People think some ideas were the Founders’, when in fact those ideas were invented after all or most of the Founders had gone.

The leaders who wrote the Constitution and led the fight for ratification were born and raised in the British Empire. Most were lawyers trained in English jurisprudence and legal vocabulary. When Alexander Hamilton and James Wilson argued a case or wrote a document (like the Constitution), they used mostly English court decisions and British books. Even leading non-lawyers like James Madison and George Washington were well grounded in English legal concepts.

When the Founders assigned constitutional meaning they also were influenced by the history of Europe. They were particularly immersed in the heritage of ancient Greece and Rome, which formed the backbone of their education. They further considered the history of the British America, which they and their forefathers had lived through.

In the 19th century, however, Americans quite naturally decided that they wanted to be Americans. They did not want to be merely children of Britannia. Noah Webster wrote a purely American dictionary. James Kent and Joseph Story produced American legal treatises. Mercy Otis Warren and George Bancroft wrote histories from a strongly American point of view.

As the individual Founders died out, their personal memories were lost. They left many documents recording their memories, but often those documents were inaccessible. For example, James Madison’s notes of the Constitutional Convention were not published until after his death in 1836. Even when critical materials were available at places like Harvard and Columbia, they might be unavailable in Missouri, Ohio, or at the Supreme Court in Washington, D.C.

Consider just a few popular misconceptions and how the Great Forgetting made them possible:

* In the early 19th century, the idea arose that the Commerce Clause granted to Congress exclusive (rather than merely concurrent with the states) jurisdiction over interstate commerce. As I pointed out in Part II(C) of an article on the Commerce Clause as it pertains to Indian tribes, Madison’s convention notes disprove that idea. But those notes were not yet published. The footprints of this misconception can be traced today in the Supreme Court’s Dormant Commerce Clause and Indian Commerce Clause cases.

* Political actors in the 19th century promoted the claim that an Article V “convention for proposing amendments” is an”constitutional convention” that cannot be limited. No Founder would have believed that, because within the lifetime of Benjamin Franklin, there had been nearly 20 inter-colonial or interstate conventions confined to limited subjects. The claim of unlimitability survived because the Founders’ vast convention experience had been forgotten.

* Throughout the 19th century, many argued that Congress had no power to issue paper money, or at least no power to make paper legal tender. The records of the Constitutional Convention are ambiguous on the subject, but the ratification records and other contemporaneous documents are clear: Congress has both powers. However, in the 19th century the full ratification records were no longer readily available. As a result, the Supreme Court struggled for years over a question that should have been answered easily.

* During the 1840s, lawyers for political disputants spun the idea that in guaranteeing each state a “republican form of government,” the Constitution forbids states from using methods of direct democracy, such as initiatives and/or referenda. The argument is absurd to anyone familiar with 18th century word usage, or with the Founders’ immersion in the history of ancient Greece and Rome. But such things had been largely forgotten.

* In 1823, a Supreme Court justice writing a trial-level opinion without his fellow justices added some unnecessary musings about what he thought the Privileges and Immunities Clause of Article IV might mean. His language was not well considered: Not only were there internal inconsistencies, but the language showed unfamiliarity with the background of the Clause. Yet this passage became the basis for continuing misconceptions among commentators and judges who had never learned what “privilege” or “immunity” had meant in 18th century law.

We are fortunate today in that the Internet enables us to reconstruct 18th century meanings. But technology is not enough.  We must beware of the results of the Great Forgetting. And we must equip ourselves with the history and language skills necessary to recreate the message the Founders intended to give us.