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History Corner: Federalist #40 and the Runaway Myth

Published in Blog on March 29, 2019 by Edward Douglas Thompson

A recurring theme among critics of a Convention of States (for proposing amendments) is that the convention would "run away," and the state delegates attending it would ignore their instructions to limit the scope of amendments proposals to predefined topics. Put another way, the claim is that the delegates would instead hold a "constitutional convention" and form an entirely-new Constitution!

As supposed evidence that this might happen, these critics proclaim that the delegates who met in Philadelphia in 1787 (when the U.S. Constitution was drafted) went beyond their mandate and held a rogue convention when they formed the Constitution.

The question at hand is whether they had a general mandate to fix the problem by any means found necessary, or whether they had a specific mandate to fix the problem by a specific means: accomplishing a second task of also leaving the Articles of Confederation in place (with only specific amendments allowed).

It is either one or the other.

One mandate (general) in effect says, "Do what you have to to fix this problem," while the other mandate (specific) in effect says "Make some amendments to the Articles of Confederation, being sure to leave it in place, while attempting to fix this problem."

The "call" of the Philadelphia Convention had occurred on 11 September 1786, when the proceedings of the Annapolis Convention had set both the time and place for the upcoming convention as being on the second Monday in May, in Philadelphia. A mandate from the Annapolis proceedings (for the delegates at the upcoming Philadelphia Convention) was:

"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" [1]

The first official response to this call for a convention occurred on 23 November 1786, when the Virginia General Assembly officially decided it would be sending 7 delegates [2]. After that, five other states had already followed suit when, on 21 February 1787, Congress weighed-in on the matter in order to convey its approval:

"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia ..." [3]

Because language in this opinion from Congress also includes a phrase about "revising" the Articles of Confederation, critics claim that that means that state delegates were only supposed to amend the Articles of Confederation (not write a new constitution to replace it).

In January of 1788, James Madison wrote Federalist #40 in order to settle the issue once and for all of whether the delegates at the Philadelphia Convention "ran away" and superseded their mandate, or whether they simply did what was asked of them. Its title explains a lot: "The Powers of the Convention to Form a Mixed Government Examined and Sustained" [3]

Madison sets up the contrast that you can either view what happened at the Convention against the intended mandate as it had been worded at the Annapolis Convention of 1786--which had called the time and place of the Philadelphia Convention--or against the intended mandate as worded by Congress (in its letter of approval the following year).

To solve the conundrum, Madison offers two rules of correct reasoning (paraphrased):

  1. Every part of a statement should have a meaning which integrates with (doesn't contradict) the other parts.
  2. When it seems that two parts of a statement contradict each other, the proper interpretation diminishes the less important part (to make room for the more important part).

Applying these two rules of correct reasoning to the issue at hand (whether delegates had a general mandate to fix the problem by any means found to be necessary; or to first and foremost preserve the Articles of Confederation), Madison makes it clear that the correct interpretation of events is that delegates were justified in what they did (Philadelphia was not a "runaway" convention).

Here are his words:

"Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved."

It is either one or the other. And plain reasoning tells us which one is more correct (the first one). The delegates had a mandate to provide adequate government and preserve the Union, not a mandate to preserve the Articles of Confederation, first and foremost.

References
[1] Yale Law School. The Avalon Project--The Annapolis Convention; September 11, 1786. Retrieved from http://avalon.law.yale.edu/18th_century/annapoli.asp
[2] Farris, Michael (April 2017) Defying Conventional Wisdom: The Constitution Was Not The Product of a Runaway Convention. Harvard Journal of Law & Public Policy, Volume 40, Number 1. [online PDF article] Retrieved from https://conventionofstates.com/files/defying-conventional-wisdom-the-constitution-was-not-the-product-of-a-runaway-convention-by-michael-farris-1
[3] Yale Law School. The Avalon Project--The Federalist Papers : No. 40. Retrieved from http://avalon.law.yale.edu/18th_century/fed40.asp

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