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Some conservatives contend that ourConstitution was illegally adopted as theresult of a runaway convention. Theymake two claims.

The delegates were instructed tomerely amend the Articles ofConfederation, but they wrote a wholenew document.

The ratification process wasimproperly changed from 13 statelegislatures to 9 state ratificationconventions.

The claim that the delegates disobeyed theirinstructions is premised on the idea thatCongress called the ConstitutionalConvention. It is claimed that Congressinstructed the delegates to solely amend theArticles of Confederation. A review oflegislative history clearly reveals the error ofthis claim. The Annapolis Convention wasthe political impetus for calling theConstitutional Convention. The conclusionof the commissioners from the five

participating states was that a broaderconvention should be called. They namedthe time and date (Philadelphia; secondMonday in May). But who was to call theConvention?

They said they were going to work toprocure the concurrence of the other Statesin the appointment of Commissioners. The

goal of the upcoming convention was torender the constitution of the FederalGovernment adequate for the exigencies ofthe Union.

What role was Congress to play in callingthe Convention? None. The Annapolisdelegates merely sent a copy of theirresolution to Congress and the executives ofall states from motives of respect.

What authority did the Articles of

Confederation give to Congress to call sucha Convention? None. The power of Congressunder the Articles was strictly limited, andthere was no theory of implied powers. TheStates possessed residual sovereignty whichincluded the power to call this convention.

Seven state legislatures agreed to senddelegates to the Convention inPhiladelphiaprior to the time thatCongress acted to endorse the

Convention.

The States told their delegates that thepurpose of the Convention was the onestated in the Annapolis Conventionresolution: to render the constitution of theFederal Government adequate for theexigencies of the Union.

Congress voted to endorse this Conventionon February 21, 1787. It did not purport tocall the Convention or give instructions tothe delegates. It merely proclaimed that in

the opinion of Congress, it is expedient forthe Convention to be held in Philadelphia on

the date previously informally sanctionedbythe Annapolis Convention and formallyapproved by seven state legislatures.

Ultimately, twelve states appointeddelegates. Ten of these states followed thephrasing of the Annapolis Convention with

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only minor variations in wording (renderthe Federal Constitution adequate). Twostates, New York and Massachusetts,followed the formula stated by Congress(solely amend the Articles as well asrender the Federal Constitution adequate).

But every student of history should knowthat the instructions for delegates camefrom the states. You will recall thatDelaware told its delegates to never agree toa plan that denied equal representation bystates in Congress. That impasse had to beresolved.

In Federalist 40, James Madison answeredthe question of who gave the bindinginstructions to the delegates. He said: Thepowers of the convention ought, in

strictness, to be determined by aninspection of the commissions given to themembers by their respective constituents.He then spends the balance of Federalist 40proving the delegates from all twelve statesproperly followed the directions they weregiven by each of their states. He specificallycalls the February 21stresolution fromCongress a recommendatory act.

The States, not Congress, called the

Constitutional Convention. They told theirdelegates to render the Federal Constitutionadequate for the exigencies of the Union.And that is exactly what they did.

The Articles of Confederation called forapproval of any amendments by Congressand ratification by all thirteen states.Moreover, the Annapolis Convention

document and a clear majority of Statesstated that any amendments coming fromthe Constitutional Convention would have tobe approved in this same mannerbyCongress and all 13 state legislatures.

The reason for this rule can be found in theprinciples of international law. The Stateswere sovereigns. The Articles of

Confederation were, in essence, a treatybetween 13 sovereign states. Normally, theonly way changes in a treaty can be ratifiedis by the approval of all parties to the treaty.

However, a treaty can provide for somethingless than unanimous approval if all the

parties agree to a new ratification processbefore the change in process is effectual.

When the Convention sent its draft of theConstitution to Congress, it also sent arecommendation for a new ratificationprocess. Congress approved both theConstitution itself and the new process.

Along with changing the number of requiredstates from 13 to 9, the new ratificationprocess stated that state conventions would

ratify the Constitution rather than thelegislatures. This was done in accord withthe preamble of the ConstitutiontheSupreme Law of the Land would be ratifiedin the name of We the People rather thanWe the States.

But before this change in ratification couldbe valid, all 13 state legislatures would haveto consent to the new method.

All 13 state legislatures consented to the

new ratification process by callingconventions of the people to vote on themerits of the Constitution.

Twelve states held popular elections to votefor delegates. Rhode Island made every votera delegate and held a series of townmeetings to vote on the Constitution. Everystate legislature consented to the newprocess that was aimed at obtaining theconsent of the people themselves.

Those who claim to be constitutionalistswhile contending that the Constitutionwas illegally adopted are self-conflicted.It is like saying George Washington was agreat American hero, but he was also aBritish Spy. I stand with the integrity ofthe Constitution.