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

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.”