Whatever its defects, the Continental Congress created by the Articles of Confederation was indeed the government of the United States. It was the government the British had come to recognize, to which the Dutch bankers had lent money, and which the Algerine pirates continued to treat with contempt. It was the government the moving spirits behind the Philadelphia Convention would continue to acknowledge until it was replaced by their own creature. The fact that there already was a federal government naturally raised questions about the status of the 1787 Convention and its handiwork.
At the outset, though, not much was made of the irregularities attending the business since all that seemed in prospect was a conference of sorts that might recommend some amendments to the Articles. When the proposed reforms turned out to be nothing less than a revolutionary reconstruction of government, harder questions were asked. And when, finally, the plan was forwarded to the several state ratifying conventions for the consent of the people on terms that directly violated the Articles' provision for amendment, there was no blinking the fact that the Philadelphia Convention had acted beyond its authority.
Constitution making by convention was certainly known to Americans, who had the respectable example of Massachusetts before them, but it was by no means the inevitable course. Indeed, in some regards it was the least eligible mode of proceeding "to render the constitution of the Federal Government adequate to the exigencies of the Union." For, to begin with, the Articles provided for their own amendment--and not by convention. Then too, the adoption of extraordinary, extraconstitutional means implied an immediate denigration of the authority of the Continental Congress. It might be argued that in recommending the convening at Philadelphia and in transmitting the Convention's plan to the states (albeit without endorsement), the Congress had been guilty of a striking act of self-denigration. Finally, the proposed mode of ratification was a most radical departure in law and principle from the rule of unanimity that lay at the heart of the Articles.
Notwithstanding these difficulties, the convention proved to be the preferred mode for the very reason that made major revision or replacement of the Articles necessary in the first place: the government constituted by the Articles seemed as incapable of self-rectification as it was of energetic governance. The impatience and unwillingness to stick at fine points, illustrated by the letters of Washington (nos. 5, 8) and Madison (no. 9), show that there were indeed reasons for Patrick Henry and others to have "smelt a Rat." Anti-Federalists were correct in suspecting a hidden agenda among those who had so rapidly enlarged the objectives of the earlier Annapolis Convention (see ch. 8, no. 12). Congress, following the leads of New York and Massachusetts, reflected this suspicion by trying to narrow the terms of the proposed federal convention (even while avoiding any mention of the Annapolis proposers). Delaware gave full expression to these misgivings. Its legislature hoped to avert the unspeakable by sending delegates to Philadelphia with a most confining commission, so confining, in fact, that those terms subsequently had to be enlarged before the Delaware delegation could feel free to participate in the Convention's developing business.
Still the hard questions posed by those who challenged [Volume 1, Page 185] the legitimacy of the Philadelphia Convention's actions could not be entirely ignored by those striving to establish a new constitution. For all the rhetoric about dictation, no party in fact was in a position to dictate anything. Accordingly, arguments (both good and bad) figured prominently. What, then, could be said in response to the charges that the whole business was a series of escalating usurpations ending in the subversion of a duly constituted government (nos. 17, 19)? The pseudonymous Republican Federalist in Massachusetts could rightly ask (9 Jan. 1788), what precedent did such behavior set for the observance of future solemn covenants? By exceeding their instructions and the provisions of state and federal constitutions, had the delegates to the Philadelphia Convention not undermined their own product?
The initial Federalist response was to declaim against petty quibbling--while engaging in some of their own. After trying to show that the Convention had left standing "good and valid" every article of the old constitution not otherwise amended or annulled (Pelatiah Webster, Oct. 1787), or that the Convention had not exceeded its powers because strictly speaking it had only recommended, much as any private individual or group might do (Wilson, no. 18), or that "the great principles of the Constitution proposed by the Convention, may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation" (Madison, no. 20)--disingenuous argument finally was put aside. Such sops to the timid sat ill with a defense that rested openly and boldly on the assertion of the radical defects of the old charter and the radical remedies of the new.
The real question, proponents of the new had to insist, was whether the Constitution was good, whether it was better than the existing arrangement. If the Convention's proposal was indeed good, then the work of those who cast aside "little ill-timed scruples," saw their duty clearly, and acted on it, would secure the approval of the people. And with that seal of popular ratification, "all antecedent errors and irregularities" would be eradicated. The procedural issues, then, ought to be subsumed under the basic principle of popular consent as the source of political authority. If the Philadelphia Convention could only propose (as was in fact the case), it remained for the people, acting through their elected delegates in state conventions, to dispose, to make or to unmake political arrangements. In exercising their incontestable right, the people should direct their attention to matters of substance, to the merits of the Constitution itself. And it was to those alleged merits that proponents and opponents alike turned their thoughts.
The Founders' Constitution
Volume 1, Chapter 6, Introduction
The University of Chicago Press