INTRODUCTION I. DID THE CONVENTION DELEGATES EXCEED THEIR AUTHORITY? A. The Call of the Convention 1. The States Begin the Official Process 2. Machinations in New York 3. Congress Responds to the Annapolis Convention Report 4. The Six Remaining States Appoint Delegates B. Arguments about Delegates' Authority at the Constitutional Convention C. Debates in the Confederation Congress D. Debates in the State Ratification Convention Process 1. There was a General Consensus that the States, Not Congress Called the Convention 2. Who gave the delegates their instructions? a. Anti-Federalist Views b. Federalist Views 3. Was the Convention unlawful from the beginning? 4. The "Runaway Convention" theory was tested and rejected. II. WAS THE CONSTITUTION PROPERLY RATIFIED? A. The Source of Law for Ratification Authority B. The Constitutional Convention's Development of the Plan for Ratification C. Debates in the Confederation Congress D. Thirteen Legislatures Approve the New Process III. MOST MODERN SCHOLARSHIP FAILS TO CONSIDER THE ACTUAL PROCESS EMPLOYED IN ADOPTING THE CONSTITUTION A. Most Scholarly References to the Legality of the Adoption of the Constitution are Superficial and Conclusory. B. Answering Ackerman and Katyal 1. The Contention that the Whole Process Was Illegal under the Articles of Confederation May Be Summarily Dismissed 2. Conspiracy Theories and Character Attacks: Exploring the Legality of the Delegates' Conduct a. The Call b. The Delegates' Authority c. The Delaware Claim 3. The Legality of the Ratification Process a. Article XIII b. State Constitutions 4. The Professors' Real Agenda IV. CONCLUSION INTRODUCTION
The Constitution stands at the pinnacle of our legal and political system as the "supreme Law of the Land," (1) but it is far more important than just a set of rules. We do not take oaths to defend our nation, our government, or our leaders. Our ultimate oath of loyalty affirms that we "will to the best of [our] Ability, preserve, protect and defend the Constitution of the United States." (2) Each president, every member of the Supreme Court, legislators in both houses of Congress, all members of the military, countless state and federal officials, all new citizens, and all members of the legal profession pledge our honor and duty to defend this document.
Despite this formal and symbolic profession of devotion, many leaders, lawyers, and citizens repeat the apparently inconsistent claim that the Constitution was illegally adopted by a runaway convention. In the words of former Chief Justice Warren Burger, the Constitution's Framers "didn't pay much attention to any limitations on their mandate." (3) The oft-repeated claim is that the Constitutional Convention was called by the Confederation Congress "for the sole and express purpose of revising the Articles of Confederation." (4) However, "the Convention departed from the mission that Congress had given it. The Convention did not simply draft 'alterations' for the Articles of Confederation as amendments. Instead, it proposed an entirely new Constitution to replace the Articles of Confederation." (5)
Critics also assert that the Founders' illegal behavior extended into the ratification process. "The Convention did not ask Congress or the state legislatures to approve the proposed Constitution. Instead, perhaps fearing delay and possible de feat, the Convention called for separate ratifying conventions to be held in each state." (6)
These criticisms are not new. Many of the Anti-Federalist opponents of the Constitution unleashed a string of vile invectives aimed at the architects of this "outrageous violation." (7) The Framers employed "all the arts of insinuation, and influence, to betray the people of the United States." (8) "[T]hat vile conspirator, the author of Publius: I think he might be impeached for high treason." (9) The Constitution itself was treated to similar opprobrium:
Upon the whole I look upon the new system as a most ridiculous piece of business--something (entre nouz) like the legs of Nebuchadnezar's image: It seems to have been formed by jumbling or compressing a number of ideas together, something like the manner in which poems were made in Swift's flying Island. (10) Modern legal writers level critiques that are equally harsh, albeit with less colorful language. One author contends that James Madison led the delegates "[i]n what might be termed a bloodless coup." (11) Another suggests that the intentional violation of their limited mandate "could likely have led to the participants being found guilty of treason in the event that their proceedings were publicized or unsuccessful." (12) Ironically, Chief Justice Burger's critique of the legality of the Constitution was delivered in his capacity as Chairman of the National Commission on the Bicentennial of the Constitution of the United States. (13) This is a classic example of Orwellian "double-think." Our belief that the Constitution is Supreme Law deserving respect and oaths of allegiance is utterly inconsistent with the notion that it was crafted by an illegal convention and ratified by an unsanctioned process that bordered on treason.
As we will see, the scholarship on this issue is inadequate. Only two articles have been dedicated to developing the argument that the Constitution was illegally adopted by revolutionary action. (14) Nearly all other scholarly references to the illegality of the adoption of the Constitution consist of either brief discussions or naked assertions. (15) Professors Bruce Ackerman and Neal Katyal argue that the illegality of the Constitution justifies the constitutional "revolutions" of Reconstruction and twentieth-century judicial activism. (16)
Despite the widespread belief that the Constitutional Convention delegates viewed their instructions as mere suggestions which could be ignored with impunity, the historical record paints a different picture. In Federalist No. 78, Alexander Hamilton underlined the importance of acting within one's authority: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." (17) And in Federalist No. 40, James Madison had already answered the charge that the Convention delegates had exceeded their commissions. (18)
Understanding the lawfulness of the adoption of the Constitution is not merely of historical interest. State appellate courts have cited the allegedly unauthorized acts of the delegates as legal precedent in lawsuits challenging the legitimacy of the process for the adoption of state constitutions. (19) When critics claim that the Supreme Court's judicial activism is tantamount to an improper revision of the Constitution's text, some scholars defend the Court by comparison to the "unauthorized acts" of the delegates to the Constitutional Convention. (20) And as noted by Professor Robert Natelson, the specter of the "runaway convention" of 1787 is a common argument employed by political opponents of modern calls for an Article V Convention of States. (21) If the Philadelphia Convention violated its mandate, a new convention will do so today, critics assert. Even without such pragmatic implications, this article respectfully suggests that in a nation that treats allegiance to the Constitution as the ultimate standard of national fidelity, it is a self-evident truth that we ought to be satisfied, if at all possible, that the Constitution was lawfully and properly adopted. Yet, while this is obviously the preferred outcome, we must test this premise with fair-minded and thorough scholarship.
To this end, this Article separately examines the two claims of illegal action by the Founders. First, it reviews the question of whether the delegates violated their commissions by proposing "a whole new" Constitution rather than merely amending the Articles of Confederation. Second, it explores the legality of the ratification process that permitted the Constitution to become operational upon approval of nine state conventions rather than awaiting the unanimous approval of the thirteen state legislatures.
Each issue will be developed in the following sequence:
* Review of the timing and text of the official documents that are claimed to control the process.
* Review of the discussion of the issue at the Constitutional Convention.
* Review of the debates on the issue during the ratification process.
Finally, after developing the legal issues surrounding the Framers' allegedly illegal acts, this article examines modern scholarly literature to assess whether the critics have correctly analyzed each of these two related but distinct legal issues.
DID THE CONVENTION DELEGATES EXCEED THEIR AUTHORITY?
The Call of the Convention
The idea of "calling" the convention actually raises several distinct questions: (1) Who had the authority to convene the meeting? (2) When and where was it to be held? (3) Who actually invited the states to appoint delegates and attend the meeting? (4) Who chose the delegates? (5) Who gave the delegates their authority and instructions? (6) What were those instructions? (7) Who had the authority to determine the rules for the Convention?
It might be thought that the place to begin our analysis of these questions would be Article XIII of the Articles of Confederation, which laid out the process for amending that document. (22) However, this Article contains no provision whatsoever for holding a convention. Accordingly, the Convention had to originate from other sources that are easily discovered by a sequential examination of the relevant events. We start with the Annapolis Convention.
On November 30, 1785, the Virginia House of Delegates approved James Madison's motion requesting Virginia's congressional delegates to seek an expansion of congressional authority to regulate commerce. However, on the following day the House reconsidered because "it does not, from a mistake, contain...