Wednesday, September 28, 2016

Constitutional Convention of 1787 was Not (as previously thought) a Runaway Convention

Before the present century, it was generally held that the Constitutional Convention that met in Philadelphia in the summer of 1787 was a “runaway convention” that had no legal authority to write a new constitution, and that it did so over the head of Congress and in violation of the Articles of Confederation, which then constituted the Constitution of the United States. This has turned out to be a great historical myth, one that has been dispelled only within the past few years. 

A look at contemporary documents—always the gold standard of the historical method of research—has now shown that the Constitutional Convention of 1787 was not a “runaway convention” at all, but was entirely within its mandate. While Congress, under the then-existing Articles of Confederation, had issued a recommendation that the convention not do anything beyond modestly amending the Articles, the STATES had created the Congress and the Articles of Confederation, and the STATES lawfully reserved the right to abolish them in favor of an entirely new structure. All but two state delegations to the Constitutional Convention had been commissioned by their states to improve the government by virtually any means, and they saw writing a new constitution as within this mandate. The Confederation Congress's recommendation to the contrary was, therefore, non-binding, and only two states, New York and Massachusetts, paid attention to it. Since Rhode Island and Vermont (the fourteenth state) did not participate in the convention, there were twelve states at the Convention, ten of which were within their mandates when they opted to replace the Articles. 

Because the New York and Massachusetts delegations did not have such a mandate, most of the delegates from these two states walked out of the convention early on. One delegate, Elbridge Gerry of Massachusetts, remained at the Convention and participated in the discussions but deliberately refrained from signing the Constitution; however, two other Bay Staters, Nathaniel Gorman and Rufus King, did sign the Constitution, along with the lone remaining New Yorker, Alexander Hamilton. These three or, at most, four delegates might be considered “runaway delegates.” In a more limited sense, the five delegates from Delaware might be considered runaway delegates, too, because their commission from their state forbid them to endorse any plan that gave each congressperson a vote rather than giving one vote to each state. Otherwise, however, these delegates, like the rest of the Convention, had been authorized to make the Constitution better by any means. As scholar Robert Natelson says in his article “Amending the Constitution,” if only “eight of 39 signers exceeded their authority [this] leaves one well short of the usual charge that the Philadelphia convention as a whole was a ‘runaway’” (Natelson, p. 9).

As a final rejoinder to the argument that the Constitutional Convention of 1787 was out of order, the president of the Convention, George Washington, acted on behalf of the Convention in submitting the new Constitution to the Confederation Congress, which did not reject it formally or informally. Congress merely passed it on to the states without comment, thereby giving the new Constitution procedural legitimacy.

This issue is discussed in the article 
Amending the Constitution by Convention: A More Complete View of the Founders' Plan by Robert G. Natelson, cited above by page number, see especially pp. 8-9.

See also “A Response to the Runaway Scenario’,” also by Natelson.

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