Browsed by
Tag: original intent

What Connecticut’s Authorizing Documents Tell Us About the Constitutional Convention—and About Modern Misinterpretations

What Connecticut’s Authorizing Documents Tell Us About the Constitutional Convention—and About Modern Misinterpretations

Comments 0 Comment
Rob with former U.S. Sen. Tom Coburn

On May 11, 1787, the Samuel Huntington, the governor of Connecticut, addressed his state legislature about the pending Constitutional Convention. Shortly thereafter the legislature adopted a law governing Connecticut’s participation in the gathering—the eleventh state to do so. (Only Maryland acted later.) The governor’s remarks, and the ensuing legislative resolution, illustrate the following:

* The governor’s understanding of who called the convention,

* that governors do not always get their own way, and

* how ignorance of 18th century law and language can cause one to misunderstand historical facts.

Governor Huntington’s speech stated in part:

You have doubtless received information from the public prints, of the intended Convention of Commissioners to meet at Philadelphia, the present month, for the purpose of revising the articles of confederation; a plan first adopted by the Commonwealth of Virginia, and afterwards recommended by the United States in Congress assembled.

The governor thus believed—accurately—that Virginia, not Congress had called the convention. He was mistaken in believing that Congress had recommended the convention. In fact, Congress had defeated two motions to “recommend” in favor of a mere expression of “opinion.”

Governor Huntington also stated that the convention was “for the purpose of revising the articles of confederation.” This was certainly the sentiment of Congress, but Virginia’s call—and the commissions issued by all other states except New York and Massachusetts—authorized more than that. Either the governor mistakenly thought the call was limited to “revising the articles” or he favored so limiting it.

Now let’s turn to the Connecticut legislature’s response. The measure it adopted contained the following introduction:

Whereas the Congress of the United States by their Act of the twenty first of February 1787 have recommended that on the second Monday of May instant, 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.

This “Whereas clause” was (and is) called a “preamble.” As you can see, the preamble recited the legislature’s understanding of what Congress had “recommended.”

After the preamble came what is called “operative language:” It had three parts. The first part appointed the commissioners or delegates. The second part empowered the commissioners. The third instructed them. The appointment was as follows:

Be it enacted by the Governor, Council and Representatives in General Court Assembled and by the Authority of the same.

That the Honorable William Samuel Johnson, Roger Sherman, and Oliver Ellsworth Esquires, be and they hereby are appointed Delegates to attend the said Convention, and are requested to proceed to the City of Philadelphia for that purpose without delay. . .

Next in the operative language came the grant of authority:

And the said Delegates, and in case of sickness or accident, such one or more of them as shall actually attend the said Convention, is and are hereby authorized and empowered to Represent this State therein, and to confer with such Delegates appointed by the several States, for the purposes mentioned in the said Act of Congress that may be present and duly empowered to act in said Convention, and to discuss upon such Alterations and Provisions agreeable to the general principles of Republican Government as they shall think proper to render the federal Constitution adequate to the exigencies of Government and, the preservation of the Union. . . (bolding added).

The last part of the operative language was the instruction:

And they are further directed, pursuant to the said Act of Congress to report such alterations and provisions as may be agreed to by a majority of the United States represented in Convention is the Congress of the United States, and to the General Assembly of this State.

Now let’s focus on the grant of authority. Like the resolutions of New York and Massachusetts, it authorized the delegates to confer “for the purposes mentioned in the said Act of Congress” (i.e., revising the Articles). But unlike the resolutions of New York and Massachusetts, the Connecticut measure added the language I have bolded. It authorized the delegates “to discuss upon such Alterations and Provisions agreeable to the general principles of Republican Government as they shall think proper to render the federal Constitution adequate to the exigencies of Government and, the preservation of the Union. . . .” In contrast to the first part of the grant, the bolded authority was quite broad. Unlike the first portion of the grant of authority and the ensuing instruction, it contained no reference to the Act of Congress.

So, how do you interpret this document as a whole?

A person unfamiliar with 18th century language and law might think the preamble, which refers only to amending the Articles, was controlling. But in 18th century law, a preamble was a mere statement of fact or of purpose. It was overridden by inconsistent language in the operative portion. If a preamble cited only one power but the operative portion listed two, the operative section controlled. So the preamble alone certainly did not limit the commissioners to consider only amendments to the Articles.

What of the bolded language? A person unfamiliar with 18th century usage might think its phrase “federal Constitution” referred only to the Articles. But in 18th century usage the word “constitution” usually meant more than just a particular document (such as the Articles). It referred to the political system generally.

Well, can you read the bolded portion merely as extra words, adding nothing to the rest? No: A prominent 18th century rule of interpretation was that you generally construed legal documents to avoid meaningless words. Given the choice of construing this measure as limited to the Articles or granting further powers, the latter interpretation was correct: The bolded portion had to grant additional authority, or it would have been meaningless surplus.

We don’t know for sure what went on in the Connecticut legislature. It is possible lawmakers added the bolded language to the original resolution to broaden the commissioners’ authority. But whether it was part of the bill as originally introduced or added later, the adopted measure had the same effect: It granted the commissioners much more authority than the governor had recommended.

Specifically, in conjunction with the final instruction it gave them open-ended authority to consider any change in the political system “they shall think proper.”

Who Called the Constitutional Convention? The Commonwealth of Virginia

Who Called the Constitutional Convention? The Commonwealth of Virginia

Rob at James Madison’s Virginia home

In interstate convention practice a “call” is an invitation for state representatives to meet at a particular time and place to discuss certain designated issues. During the Founding Era, convention calls were issued by the Continental and Confederation Congresses, by prior conventions and—most frequently—by individual states.

In rare instances the call might be the product of negotiation among two or more states, reflected in letters or resolutions issued by those states. This was how the Providence Convention of 1776-77 was summoned.

Who gets the credit for calling the most important convention of all—the gathering that drafted our U.S. Constitution? Writers most often claim that the Confederation Congress did, citing its resolution of February 21, 1787. However, the honor also has been claimed for New Jersey, Virginia, and the 1786 Annapolis Convention.

The documentary record shows that the caller certainly was not Congress. Beyond that, the issue becomes more difficult. (NB: Sources sometimes are confused as to the exact dates some measures were adopted. I checked and verified the dates used below.)

The first to act was the Annapolis Convention, which was convened to discuss issues of trade. Commissioners (delegates) from only five states showed up on time: New York, New Jersey, Pennsylvania, Delaware, and Virginia. Professing themselves unable to fulfill their mission, on September 14, 1786, the commissioners issued a statement. The entire text is set forth at the end of this post.* Stripping out the unessential wording, it is as follows:

Your Commissioners. . . suggest . . . that . . . 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 . . . to take into consideration the situation of the United States, to devise such further provisions . . . 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 . . . Congress . . . as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.

(Note that the word constitution in Founding Era political usage usually did not refer to a specific document but to the political system generally—much as we refer to the “British constitution.”)

Thus, the commissioners suggested to the five states that sent them that those states agree with and promote the idea of a gathering in Philadelphia that would
* consider the situation of the U.S.,
* “devise . . . provisions” to
* change the political system so as to
* render it adequate, and
* obtain the agreement of Congress and of every state legislature.

The Annapolis resolution was only a suggestion because the commissioners did not have power to call a new convention.

New Jersey was the first state to respond. On November 24, 1786, her state legislature approved a resolution that four named commissioners were

appointed on the Part of this State. . .and they hereby are authorized and empowered to meet such Commissioners as have been or may be appointed by the other States in the Union at the City of Philadelphia, in the Commonwealth of Pennsylvania . . . for the Purpose of taking into Consideration the State of the Union as to Trade and other important Objects, and of devising such further Provisions as shall appear necessary to render the Constitution of the federal Government adequate to the Exigencies thereof.

Interestingly, the actual credentials delivered to the commissioners bore the date of November 23, the day before the legislative resolution passed.

On December 1, 1786 (not on October 16 as some sources indicate) Virginia’s general assembly passed a law entitled “AN ACT for appointing Deputies from this Commonwealth to a Convention proposed to be held in the City of Philadelphia in May next for the purpose of revising the federal Constitution.” The entire act is too long to extract here, but here are the highlights:

A preamble contained three “whereas clauses.” The first recited the suggestion of the Annapolis convention without mentioning the need for approval by Congress or by all states. The second recited that a political “Crisis” had arrived. The third urged all states to act, citing the need for citizens to unite in the same spirit in which they had joined together under the Articles of Confederation.

The operative part of the Virginia statute followed the preamble. It authorized appointment seven commissioners to join with those from other states:

in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Foederal Constitution adequate to the Exigencies of the Union and in reporting such an Act for that purpose to the United States in Congress as when agreed to by them and duly confirmed by the several States will effectually provide for the same.

This language appeared at the end:

And the Governor is requested to transmit forthwith a Copy of this Act to the United States in Congress and to the Executives of each of the States in the Union.

Virginia appointed her commissioners by legislative resolution on Dec. 12.

Pennsylvania announced participation on December 30, North Carolina and New Hampshire in January, Delaware on February 3, Georgia on February 10. Thus, seven states already had agreed to participate under terms granting the convention wide powers when Congress passed the following resolution on Feb. 21, 1787:

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 3 and the preservation of the Union.

This was a compromise resolution between a committee proposal that Congress “strongly recommend” a convention with broad powers and a New York proposal that Congress “recommend” a convention limited to proposing amendments to the Articles of Confederation.

Which of these constitutes the call? Obviously, not the congressional resolution: It was issued after seven states already had accepted a prior invitation in broader terms. Moreover, the congressional resolution was not a summons nor even a recommendation; it expressed only “the opinion of Congress”—language without any legal force.

One can argue that, as in the case of the 1776-77 Providence convention, this was a negotiated call: The Annapolis commissioners laid down certain basic terms, and New Jersey and Virginia responded based on those. However, the Annapolis convention had no authority to issue a call, its resolution was phrased as a mere “suggestion,” and no state adopted the terms of that suggestion in their entirety.

I used to think that New Jersey had a strong case to be considered “co-caller” with Virginia because she was the first entity to act with power to do so. But now I’m persuaded that Virginia has the better case. The Virginia resolution not only specified the time, place, subject matter, and limitations of the convention, but Virginia was the first state to explicitly urge other states to participate.

So the honor of calling the Constitutional Convention goes to Virginia.
————

* The full statement by the Annapolis Convention was as follows: “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 union, 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.”

Could Congress Control an Amendments Convention? Not According to the Founders!

Could Congress Control an Amendments Convention? Not According to the Founders!

Rob at Trevi Fountain in Rome

As we move closer to holding a “convention for proposing amendments” to restrain federal overreach, naysayers have not been silent. One of their claims is an amendments convention would be fruitless or dangerous because it could be controlled by Congress.

The Constitution directs Congress to “call” an amendments convention when two thirds of the state legislatures so demand. Opponents assert Congress could leverage its duty to “call” the convention into a mechanism for controlling it. For example, they contend Congress could decide how the convention’s commissioners are selected, how the commissioners are allocated, and the nature of the agenda.

The claim has several weaknesses. First, as explained here and here, it is based on an erroneous legal argument. Second, the Founders and the Supreme Court characterize an amendments convention as a “convention of states.” That term historically means a state-based gathering, accountable to the state legislatures, not to Congress. Third, the courts are unlikely to sustain congressional efforts to take over the process because doing so would contradict the central purpose of an amendments convention, which is precisely to circumvent Congress.

But there is another weakness as well: While the Constitution was being debated, Antifederalists, who were opponents of the Constitution, also contended that Congress could control the convention process, and supporters of the Constitution (Federalists) successfully rebutted that contention.

On February 13, 1788, a Philadelphia newspaper called the Independent Gazetteer published an Antifederalist tract written under the pseudonym “Algernon Sidney.” The tract stated, in part:

“Much as been said upon the easy practicability of altering the new constitution without tumult or discord, if it should be found a pernicious or inconvenient system of government. This we shall perceive, however, after examination to be a delusive idea …”

The writer than quoted Article V and continued, “It is obvious to common sense, that an alteration in the government cannot be procured without the approbation and consent of congress. And he must be weak indeed who supposes that when they are entrusted with power, they will grow weary of it, and make a voluntary surrender of it.”

The article was reprinted on April 2, 1788, in the Freeman’s Journal. It deserved a response, and that response was not long forthcoming.

Tench Coxe is little known today, but he served as a member of the Confederation Congress and as commissioner of the revenue during the presidency of George Washington. More importantly for present purposes, his essays on the Constitution were very widely read and perhaps more influential with the general public than the Federalist Papers (which were hard for most people to wade through). Coxe specifically undertook to rebut the claim the Constitution was unamendable because Congress could control the convention process. He did so in two essays in the Pennsylvania Gazette, published on June 11, 1788, and on July 23.

In the latter essay, Coxe wrote:

“It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will show this to be a groundless remark.”

Coxe then explained why:

“It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience.”

Why is this so important? It is important in part because Coxe played such a leading role in persuading the people to ratify the Constitution. Moreover, when lawyers and judges interpret a public measure, they give special weight to reassurances from the measure’s promoters. This is because adoption of the measure usually signifies the adopters accepted the promoters’ arguments and rejected those of their adversaries.

Under these circumstances, it would be difficult for Congress to claim authority to dictate to an amendments convention and even more difficult for the courts to concede Congress has any authority to do so.

The 37th "Convention of States" Discovered!

The 37th "Convention of States" Discovered!

Recently a professor teaching constitutional law at a prestigious university wrote in one of the nation’s top newspapers that we should oppose an Article V convention of states in part because the 1787 Constitutional Convention is “the only precedent we have.”

As occurs too often among law professors, he obviously had not researched the subject before writing. If he had, he would have discovered that in Russel Caplan’s 1988 Oxford University Press book on amendments conventions, the author identified several conventions of states that assembled during the Founding Era. Moreover, in 2013, Florida Law Review published my survey of the many American inter-colonial and interstate conventions before and during that period. In addition, this website has documented five conventions of states held since the Founding Era.

The generation that ratified the Constitution applied the term “convention” to a diplomatic gathering of three or more American colonies or states. The term did not include (1) negotiations between only two governments, (2) meetings of governors not formally authorized, or (3) continuing bodies, such as the United Colonies of New England (1643-84), the Second Continental Congress (1775-1781), or the Confederation Congress (1781-89).

Conventions might be limited to colonies or states or they might include other sovereign entities, such as the British Crown or Indian tribes. Among synonyms for “convention” were congress, council, and committee. Often two synonyms were used in conjunction, as in “a committee or convention held at Boston.” The word “congress” to describe a convention fell out of use soon after creation of the Confederation Congress.

My Florida Law Review article identified the following American intergovernmental conventions up to and including the 1787 Constitutional Convention:

* Albany (1677) (Indian negotiations)
* Boston (1689) (defense issues)
* Albany (1689) (Indian negotiations)
* New York City (1690) (defense)
* New York City (1693) (defense)
* Albany (1694) (Indian negotiations)
* New York City (1704) (defense)
* Boston (1711) (defense)
* Albany (1722) (Indian negotiations)
* Albany (1744) (defense)
* Lancaster, PA (1744) (Indian negotiations)
* Albany (1745) (defense)
* Albany (1745) (Indian negotiations)
* New York City (1747) (defense)
* Albany (1751) (Indian negotiations)
* Albany (1754) (Indian negotiations and a plan of colonial union)
* Boston(?) (1757) (defense)
* New York City (1765) (response to Stamp Act)
* Fort Stanwyx (Rome, NY) (1768) (Indian negotiations)
* New York City (1774) (response to British actions)
* Providence, RI (1776-77) (paper currency and public credit)
* York Town, PA (1777) (price control)
* Springfield, MA (1777) (economic issues)
* New Haven, CN (1778) (price controls and other responses to inflation)
* Hartford, CN (1779) (economic issues)
* Philadelphia (1780) (price controls)
* Boston (1780) (conduct of Revolutionary War)
* Hartford (1780) (conduct of Revolutionary War)
* Providence, RI (1781) (war supply)
* Annapolis, MD (1786) (trade)
* Philadelphia (1787) (revise the political system)

Thus, I had found 20 inter-governmental conventions from before Independence and 11 after Independence. Here are the conventions held after the Constitution was ratified:

* Hartford, CN (1814) (response to War of 1812)
* Nashville, TN (1850) (Southern response to the North)
* Washington, DC (1861) (propose a constitutional amendment)
* Montgomery, AL (1861) (write the Confederate constitution)
* Santa Fe, NM (1922) (negotiate the Colorado River Compact)

That totals 36 in all. But there’s more: Between Independence and ratification of the Constitution, several other conventions were formally called or applied for, but never met. They were to address such issues as taxes, currency inflation, and improvements to interstate navigation. The official records pertaining to their applications and calls provide additional guidance on the subject.

Now a 37th convention has surfaced: The Albany Council of 1684.

I had heard of the Albany Council because one of my sources mentioned it—but only as a meeting of two colonies with the Iroquois. It turns out, however, that a third colony also participated, thereby qualifying it as a convention.

The colonial governments participating were those of New York, Virginia, and Massachusetts. The Iroquois participants were the Mohawk, Cayuga, Onondaga, Oneida, and Seneca tribes. New York and Virginia were represented by their governors, and Massachusetts by a prominent New Yorker especially commissioned for the purpose: Stephanus Van Cortlandt. The issues were varied: Virginia was unhappy with Indian depredations on its territory. The Senecas complained that the French Canadian governor was arming and inciting the Senecas’ enemies. Massachusetts had a number of proposals to promote. All parties wanted to strengthen the “covenant chain” among them. One result of the convention was an Iroquois-colonial treaty.

The records of the convention are in longhand on parchment, and available in the Library in Virginia in Richmond. They are entitled Proceedings of a Council at Albany, New York, with the Sachems of Three Indian Nations, 1684 July 31—but as the records indicate, the number of Indian nations participating was actually five.

More Founding-Era Evidence that Some State Functions Derive Only From the Constitution (With Some Comments on the Amendment Process)

More Founding-Era Evidence that Some State Functions Derive Only From the Constitution (With Some Comments on the Amendment Process)

In prior posts, I’ve discussed two key elements of constitutional law:

1. The Constitution grants some powers to persons and entities other than the federal government. These persons and entities include state legislatures, state governors, state conventions, the Article V “Convention for proposing Amendments,” Congress as a free-standing assembly, and the Electoral College.

2. When states, state governors, and state legislatures act under those powers they perform (in the words of the Supreme Court) “federal functions” granted them by the Constitution. They do not act by virtue of state powers reserved by the Tenth Amendment.

The courts have repeatedly vindicated both of these principles.

For example, the Constitution provides that “Each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” (II-1-2) Similarly, the Constitution grants to state governors authority to issue writs for House elections (I-2-4). It grants state legislatures authority to regulate congressional elections (I-4-1), to apply for an amendments convention and, under certain circumstances, to ratify a constitutional amendment. (Art. V).

All these powers derive from the Constitution. They were not “reserved by the states” when the Constitution was ratified. As the Supreme Court has pointed out, to be “reserved” a power must have existed prior to the Constitution, and all of these powers pre-suppose that the Constitution is already in existance.

This is why those who claim that a state can use its reserved authority to control the amendment process are simply mistaken. A state legislature has a good deal of control over that process, but only as much as is incidental to its Article V functions.

In fact, the concept that some state powers are delegated rather than reserved was understood even under the Articles of Confederation.

Under the Articles, the Confederation Congress created and oversaw the U.S. Post Office. On June 13, 1788 (when the Constitution’s ratification was not yet complete), Postmaster General Ebenezer Hazard sent Congress a letter describing a problem and asking for guidance.

Benjamin Franklin was then president (governor) of Pennsylvania. Apparently on the authority of his state office, Franklin ordered a letter in the custody of the U.S. Post Office to be opened and inspected. Hazard wanted to know whether Franklin had operated legally. He acknowledged that Congress had authorized state executives to open the mail during wartime, but in 1788 the United States was no longer at war.

Franklin could have made a reasonable case—a much better case, in fact, than that argued by those who claim the states have Tenth Amendment authority over the amendment process. This is because the Articles’ reserved powers clause was even stronger than the Tenth Amendment: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Moreover, official letter-opening was a common practice during the 18th century. In fact, one reason governments created post offices and banned mail delivery by private parties was to enable governments to better monitor communications. Franklin knew all this: He had been a postmaster under both the Crown and under Congress.

Nevertheless, in a report issued on June 18, 1788 the investigative committee found that Franklin had exceeded his authority:

. . . Congress by the Confederation have the sole and exclusive power of regulating the post offices throughout the United States that no power can be exercised respecting the post office but what is delegated by Congress and that it does not appear that any such power has been hitherto delegated.

Because it had been asked about the advisability of delegating mail-opening authority to state governors, the committee added:

. . . [T[he power in question is of such a nature as not to be capable of being delegated with propriety to any persons except to some principal officer or officers immediately under the controul of and responsible to Congress.
Under these impressions and considering the present state of the Government of the United States the Committee are of opinion that it is inexpedient to delegate the power in question to the governors and presidents of the Several States.

34 J. Cont. Cong., p. 239.

Of course, one might quibble by observing that the post office provision in the Articles included the phrase “exclusive power” while the Constitution does not. But this would be a sophomoric objection: When the Constitution creates procedures for presidential election, amendment, and the like, those procedures are clearly intended to be exclusive, even where the precise word is not used. In absence of an authorizing amendment, attempting to use other procedures for, say, electing the president or amending the Constitution would certainly be unconstitutional.