How key framers explained their authority to propose a new Constitution

A common argument against a convention for proposing amendments is that the 1787 Constitutional Convention delegates were a bunch of lawbreakers who disregarded their trust. From this, the critics deduce that the commissioners at an Article V convention might do so as well.

Note that the critics do not claim any of the other 41+ conventions of states and colonies exceeded their powers. (Most seem to have no knowledge of those conventions.) Instead, they place all their marbles on their belief about a single conclave held over 200 years ago.

But their belief is simply wrong. The charge that the Constitution’s framers exceeded their power is an old slander invented during the ratification debates by opponents of the Constitution. Modern scholarship has repeatedly shown it to be false: See here and here. Yet critics continue to repeat it, just as if it had never been rebutted.

One critic, for example, has said repeatedly that none of the Framers ever claimed they had authority to propose a new form of government—that they justified proposing a new constitution solely on the ground of necessity. But this assertion is contradicted by comments from many of the Framers:

  • At the Constitutional Convention, on May 30, 1787, according to the notes of James McHenry, Gouverneur Morris of Pennsylvania took the authority issue head on. After arguing that the Articles of Confederation was not really a federal government because it had no “compelling capacities,” he contended that “The States in their appointments [i.e., commissions] Congress in their recommendations point directly to the establishment of a supreme government capable of “the common defence, security of liberty and general welfare.”
  • On June 16, 1787, according to Madison’s notes, James Wilson of Pennsylvania stated on the convention floor that “With regard to the power of the Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose any thing.”
  • On the same day, again according to Madison, Charles Pinckney of South Carolina said “he thought the Convention authorized to go any length in recommending, which they found necessary to remedy the evils which produced this Convention.”
  • On the same day, Edmund Randolph of Virginia stated that “When the salvation of the Republic was at stake, it would be treason to our trust [i.e., to our commissions], not to propose what we find necessary.*
  • On the following day (according to Madison), Alexander Hamilton said, “As to the powers of the Convention, he thought the doubts started [sic] on that subject had arisen from distinctions & reasonings too subtle.”  Robert Yates’ report of Hamilton’s speech shows Hamilton arguing that the Convention had authority to recommend an entirely new government even under the instructions from New York—which, along with those of Massachusetts, were the most restrictive of any state.
  • On June 19, 1787, Madison himself addressed the issue: “Much stress had been laid by some gentlemen on the want of power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a federal plan would support this objection.” Madison, in other words, was defending the authority of the convention to propose even the “national” plan proposed by the Virginia delegation. Of course, the Constitution that actually was proposed was federal in nature.
  • On June 20, 1787 when the Constitutional Convention delegates were discussing the Edmund Randolph’s Virginia Plan (which would have created an entirely new government), George Mason stated (according to Madison), “The principal objections agst that [plan] of Mr. R. were the want of power & the want of practicability. There can be no weight in the first as the fiat [i.e., the decision] is not to be here but in the people.”

The framers made similar statements after the Constitutional Convention as well:

  • On Jan. 17, 1788, Charles Cotesworth Pinckney of South Carolina addressed the issue in his state’s legislature, saying:

“[I]t had been alledged [sic], that when there they exceeded their powers, he thought not; they had a right, he apprehended, to propose any thing which they imagined would strengthen the union, and be for the advantage of our country; but they did not pretend to a right to determine finally upon any thing—the present constitution is but a proposition which the people may reject….”

  • The following day, James Madison of Virginia published Federalist No. 40, which pointed out that the commissions issued by the states were the source of the delegates’ power—not a limiting resolution of the Confederation Congress. The commissions issued by all states except Massachusetts and New York granted authority to propose whatever was needed to render the political system “adequate for the exigencies of the union.”
  • On July 24, 1788, William Davie of North Carolina addressed the “lack of authority” charge at the North Carolina ratification convention in this way:

“This objection has been industriously circulated, but I believe, on a candid examination, the prejudice on which this error is founded, will be done away. As I had the honour, Sir, to be a member of the Convention, it may be expected I would answer an objection personal in its nature, and which contains rather a reflection on our conduct, than an objection to the merits of the Constitution. After repeated and decisive proofs of the total inefficiency of our general government, the states deputed the Members of the Convention to revise and strengthen it: And permit me to call to your consideration, that whatever form of confederate government they might devise, or whatever powers they might propose to give this new government, no part of it was binding until the whole Constitution had received the solemn assent of the people. What was the object of our mission? ‘To decide upon the most effectual means of removing the defects of our federal union.’ This is a general, discretional authority to propose any alteration they thought proper or necessary.”

For additional information correcting the claim that the 1787 convention acted illegally, see here, here and here.

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* The critic referred to may have dismissed this statement because Randolph also said he “was not scrupulous on the point of power.” Someone ignorant of 18th century English might read this as saying that Randolph was admitting he was unscrupulous. What he was saying in 18th century English was that he had no objections. Randolph’s larger point was that it would be a breach of trust for the convention not to recommend what the delegates thought best.