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FReeper Book Club: The Debate over the Constitution, Federalist #40
A Publius/Billthedrill Essay | 5 August 2010 | Publius & Billthedrill

Posted on 08/05/2010 7:16:14 AM PDT by Publius

Madison Defends the Actions of the Convention

Madison contrasts the authorization from the states to call the Convention with the congressional resolution that attempted to define its purview. He carefully parses them to show that what the Convention did was consonant with both mandates, and he builds the case that the Convention’s solution was the only one that would work.

Federalist #40

Conformity of the Plan to Republican Principles (Part 2 of 2)

James Madison, 18 January 1788

1 To the People of the State of New York:

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2 The second point to be examined is whether the Convention were authorized to frame and propose this mixed Constitution.

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3 The powers of the Convention ought in strictness to be determined by an inspection of the commissions given to the members by their respective constituents.

4 As all of these, however, had reference either to the recommendation from the meeting at Annapolis in September 1786, or to that from Congress in February 1787, it will be sufficient to recur to these particular acts.

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5 The act from Annapolis recommends the “appointment of commissioners to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same.”

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6 The recommendatory Act of Congress is in the words following:

7 “Whereas, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States a firm national government:

8 “Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next 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, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”

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9 From these two acts it appears:

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10 From a comparison and fair construction of these several modes of expression is to be deduced the authority under which the Convention acted.

11 They were to frame a national government adequate to the exigencies of government and of the Union, and to reduce the Articles of Confederation into such form as to accomplish these purposes.

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12 There are two rules of construction dictated by plain reason, as well as founded on legal axioms.

13 The one is that every part of the expression ought, if possible, to be allowed some meaning and be made to conspire to some common end.

14 The other is that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

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15 Suppose then that the expressions defining the authority of the Convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the Convention, be affected by alterations and provisions in the Articles of Confederation; which part of the definition ought to have been embraced, and which rejected?

16 Which was the more important, which the less important part?

17 Which the end; which the means?

18 Let the most scrupulous expositors of delegated powers, let the most inveterate objectors against those exercised by the Convention, answer these questions.

19 Let them declare whether it was of most importance to the happiness of the people of America that the Articles of Confederation should be disregarded and an adequate government be provided and the Union preserved, or that an adequate government should be omitted and the Articles of Confederation preserved.

20 Let them declare whether the preservation of these articles was the end for securing which a reform of the government was to be introduced as the means, or whether the establishment of a government adequate to the national happiness was the end at which these articles themselves originally aimed and to which they ought as insufficient means to have been sacrificed.

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21 But is it necessary to suppose that these expressions are absolutely irreconcilable to each other: that no alterations or provisions in the Articles of the Confederation could possibly mold them into a national and adequate government, into such a government as has been proposed by the Convention?

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22 No stress, it is presumed, will in this case be laid on the title; a change of that could never be deemed an exercise of ungranted power.

23 Alterations in the body of the instrument are expressly authorized.

24 New provisions therein are also expressly authorized.

25 Here then is a power to change the title, to insert new articles, to alter old ones.

26 Must it of necessity be admitted that this power is infringed so long as a part of the old Articles remain?

27 Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations, between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government.

28 Will it be said that the alterations ought not to have touched the substance of the Confederation?

29 The states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in contemplation.

30 Will it be said that the fundamental principles of the Confederation were not within the purview of the Convention and ought not to have been varied?

31 I ask: What are these principles?

32 Do they require that in the establishment of the Constitution the states should be regarded as distinct and independent sovereigns?

33 They are so regarded by the Constitution proposed.

34 Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the states?

35 One branch of the new government is to be appointed by these legislatures, and under the Confederation, the delegates to Congress may all be appointed immediately by the people, and in two states1 are actually so appointed.

36 Do they require that the powers of the government should act on the states and not immediately on individuals?

37 In some instances, as has been shown, the powers of the new government will act on the states in their collective characters.

38 In some instances, also, those of the existing government act immediately on individuals.

39 In cases of capture, of piracy, of the post office, of coins, weights and measures, of trade with the Indians, of claims under grants of land by different states, and above all in the case of trials by courts-martial in the army and navy by which death may be inflicted without the intervention of a jury or even of a civil magistrate: in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens.

40 Do these fundamental principles require particularly that no tax should be levied without the intermediate agency of the states?

41 The Confederation itself authorizes a direct tax, to a certain extent, on the post office.

42 The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also.

43 But [overlooking] these instances, was it not an acknowledged object of the Convention and the universal expectation of the people that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue?

44 Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation?

45 Had not every state but one, had not New York herself, so far complied with the plan of Congress as to recognize the principle of the innovation?

46 Do these principles, in fine, require that the powers of the general government should be limited and that beyond this limit the states should be left in possession of their sovereignty and independence?

47 We have seen that in the new government, as in the old, the general powers are limited, and that the states in all unenumerated cases are left in the enjoyment of their sovereign and independent jurisdiction.

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48 The truth is 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.

49 The misfortune under the latter system has been that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.

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50 In one particular it is admitted that the Convention have departed from the tenor of their commission.

51 Instead of reporting a plan requiring the confirmation of the legislatures of all the states, they have reported a plan which is to be confirmed by the people and may be carried into effect by nine states only.

52 It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the Convention.

53 The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve states to the perverseness or corruption of a thirteenth, from the example of inflexible opposition given by a majority of one-sixtieth of the people of America to a measure approved and called for by the voice of twelve states comprising fifty-nine-sixtieths of the people, an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country.

54 As this objection, therefore, has been in a manner waived by those who have criticized the powers of the Convention, I dismiss it without further observation.

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55 The third point to be inquired into is how far considerations of duty arising out of the case itself could have supplied any defect of regular authority.

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56 In the preceding inquiries, the powers of the Convention have been analyzed and tried with the same rigor and by the same rules as if they had been real and final powers for the establishment of a Constitution for the United States.

57 We have seen in what manner they have borne the trial even on that supposition.

58 It is time now to recollect that the powers were merely advisory and recommendatory, that they were so meant by the states and so understood by the Convention, and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.

59 This reflection places the subject in a point of view altogether different and will enable us to judge with propriety of the course taken by the Convention.

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60 Let us view the ground on which the Convention stood.

61 It may be collected from their proceedings that they were deeply and unanimously impressed with the crisis which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced, that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment.

62 It could not be unknown to them that the hopes and expectations of the great body of citizens throughout this great empire were turned with the keenest anxiety to the event of their deliberations.

63 They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States.

64 They had seen in the origin and progress of the experiment the alacrity with which the proposition made by a single state, Virginia, towards a partial amendment of the Confederation, had been attended to and promoted.

65 They had seen the liberty assumed by a very few deputies from a very few states convened at Annapolis of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen states.

66 They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted in the public estimation by occasions and objects infinitely less urgent than those by which their conduct was to be governed.

67 They must have reflected that in all great changes of established governments, forms ought to give way to substance, that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,”2 since it is impossible for the people spontaneously and universally to move in concert towards their object, and it is therefore essential that such changes be instituted by some informal and unauthorized propositions made by some patriotic and respectable citizen or number of citizens.

68 They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness that the states were first united against the danger with which they were threatened by their ancient government, that committees and congresses were formed for concentrating their efforts and defending their rights, and that conventions were elected in the several states for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen except in those who wished to indulge under these masks their secret enmity to the substance contended for.

69 They must have borne in mind that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.

70 It might even have occurred to them that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever not warranted by their commission, would not less excite animadversion than a recommendation at once of a measure fully commensurate to the national exigencies.

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71 Had the Convention under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable in their judgment of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion: what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly?

72 Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve states who usurped the power of sending deputies to the Convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the state of New York in particular, which first urged and then complied with this unauthorized interposition?

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73 But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the Convention were neither authorized by their commission, nor justified by circumstances, in proposing a Constitution for their country: does it follow that the Constitution ought for that reason alone to be rejected?

74 If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends?

75 The prudent inquiry, in all cases, ought surely to be not so much from whom the advice comes, as whether the advice be good.

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76 The sum of what has been here advanced and proved is that the charge against the Convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country by the circumstances in which they were placed to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations in proposing a Constitution, this ought nevertheless to be embraced if it be calculated to accomplish the views and happiness of the people of America.

77 How far this character is due to the Constitution is the subject under investigation.

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[1] Connecticut and Rhode Island.
[2] Declaration of Independence.

Madison’s Critique

There were a number of objections to the proposed Constitution based on the legality of the very Convention that produced it. Madison here proposes to address these by examining the specifics of the charges given to the delegates to that Convention. In order to understand why this was an issue, a brief recapitulation of the events leading up to that historic event may be helpful.

First, as to the criticisms themselves, a decent summary was provided by Samuel Bryan in his Address of the Pennsylvania Minority. At 9 he lays out what to the dissenters is the pertinent clause.

9 With this view a convention was...recommended by Congress, for the different states to appoint deputies to meet in convention, “for the purposes of revising and amending the present articles of confederation, so as to make them adequate to the exigencies of the union.”

To Bryan, that was the limit of their charge. He goes on to say that the various state legislatures had not consulted their constituents in the matter (10), and that at least in the case of Pennsylvania, the state government had expressly limited the authority of its delegates to the alteration of the present Articles, and not to the formation of a completely new government (11).

Although this is not one of the three foundational reasons Bryan states for the dissent, it is a serious accusation, made more serious by the impression Bryan gives of what amounts to a coup d'etat on the part of the planners of the Convention. Madison rises to the challenge in this essay.

Both men make reference to the meeting in Annapolis in September 1786 as the root of the events leading up to the convocation. This was not, in itself, a convention of any sort, rather it was a body of twelve delegates from five different states who produced a recommendation to Congress that the inadequacies of the Articles had reached a point such that they must be addressed with some urgency. Four states had sent delegates who had not arrived in time for their participation; four others had taken no action at all. It was that recommendation, Madison reminds the reader, that contained the text Bryan cited.

5 The act from Annapolis recommends the “appointment of commissioners to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same.”

From this recommendation Congress produced the charge that constitutes the ground on which Madison has chosen to stand.

7 “Whereas, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States a firm national government:

8 “Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next 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, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”

It is the sort of construction that keeps lawyers employed. At 7 it is clear that Congress acknowledges the defects of the Articles and anticipates that the remedy will involve a firm national government. Madison will emphasize the latter point. But the actual resolution appears to specify the “sole and express purpose of revising the Articles of Confederation,” and still more confusing, that apparent specificity broken by the qualification that it “render the federal Constitution adequate to the exigencies of government...” Does this constitute a loophole large enough to drive the Constitution through? Madison will argue that, yes, it does.

Clearly the principle that a government “destructive of these purposes” might at any time be “altered or abolished,” to quote the Declaration of Independence, was a founding principle of government in North America. But that document, however luminous its expression of principle, was legally a letter to the King of England that bound only its signatories. But it was also a principle included within the Articles of Confederation, and it is on that authority that Congress ordered the Convention to proceed.

At 9 Madison lays out his logic and then proceeds to defend it point by point. At 14 he explains why his cherry-picking of phrases within the overall document is justified.

14 ...where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

In short, it is that the overall meaning of the resolution should not be hampered by internal inconsistency. At 19 he challenges the anti-Federalists to explain the overall intention of the resolution in more coherent terms; at 20, to explain why a limited interpretation of its powers better serves the objectives stated than the broad one he is taking. At 27 he demands that those insisting on the limited interpretation provide some guidance as to the “boundary between authorized and usurped innovations.”

From 32 to 47 Madison enters into a dialectic where point by point he demonstrates that the “fundamental principles of the Confederation” were, in truth, upheld by the new Constitution; that, in fact, the latter was more true to those principles than any conceivable alteration of the Articles themselves.

48 The truth is 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.

This claim is, outside the momentum of Madison's rhetoric, enough of an overstatement to justify an accusation of hyperbole. But Madison is only warming up. At 60 he proposes to review the events leading up to the Convention from the eyes of the delegates themselves, in order to make the case that they did, in fact, know what they were doing and were not led astray by a cabal of Federalist activists. Shockingly, this involves the open admission that the Annapolis Convention had exceeded its intended objective, and that not only was Congress aware of that, it had ended up approving of it.

65 They had seen the liberty assumed by a very few deputies from a very few states convened at Annapolis of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen states.

The reference is to the fact that twelve states responded both to that recommendation, and to the following resolution, by sending delegates to the Constitutional Convention. Madison is stating firmly that their activities were no surprise, as Bryan accused, but that the delegates knew perfectly well what they were doing. And indeed, it strains credulity to attempt to account for the continued presence of its delegates over four grueling months in any other terms.

By 71 the scholarly, reserved Madison is thundering. How dare the anti-Federalists insist that the delegates do any less than the monumental work they had done and perform to a lesser degree than that which was demanded by the desperate need of their country?

71 Had the Convention under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable in their judgment of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion: what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly?

This is pure defiance, the righteous anger of an artist whose critics have deplored the frame and ignored the painting. One tends to discount Hamilton's passion as a central feature of his personality; when it erupts from Madison it is amusing and occasionally astonishing. On such feats of rhetoric, and not necessarily on the cold, underlying logic, are politics made. But now the thunder recedes, and Madison returns to the logic.

73 But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the Convention were neither authorized by their commission, nor justified by circumstances, in proposing a Constitution for their country: does it follow that the Constitution ought for that reason alone to be rejected?

In other words, even if every objection in this arena were granted, are such objections even relevant to the topic at hand? The Convention was authorized, the delegates were sent, a plan was produced, and what now was important was what that plan was, not how it came to be. Madison concludes with a masterly summary.

76 The sum of what has been here advanced and proved is that the charge against the Convention of exceeding their powers, except in one instance little urged by the objectors, [a reference to Bryan's treatment of the putative irregularities surrounding the convention] has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country by the circumstances in which they were placed to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations in proposing a Constitution, this ought nevertheless to be embraced if it be calculated to accomplish the views and happiness of the people of America.

The essay has, in turns, proceeded from the legalistic through the philosophical to the pragmatic, from a dry recitation of legislative points to a lion roaring defiance at the wolves. As a legal argument it leaves a bit to be desired: the charges weren't true, but if they were, it didn't matter. The delegates had not exceeded their authority, but perhaps they had, and if so, they were required to do so, and the entire issue was ancillary to the overriding one of whether the product, the Constitution, should be ratified. It is a lovely bit of rhetoric. One wonders what the diligent readers of the New York newspapers in which it appeared must have thought of it.

Discussion Topic

The only topic here is whether there was a meaningful way to fix the Articles of Confederation without starting all over. Build a case, if you can!


TOPICS: Constitution/Conservatism; Free Republic
KEYWORDS: federalistpapers; freeperbookclub

1 posted on 08/05/2010 7:16:16 AM PDT by Publius
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To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...
Ping! The thread has been posted.

Earlier threads:

FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39

2 posted on 08/05/2010 7:18:25 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Publius

ping


3 posted on 08/05/2010 7:21:36 AM PDT by dalebert
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To: Publius

I have a question for the constitutional lawyers here.(of which i am not in the legal profession)

If there is a need to amend or create a new amendment to the Constitution, and a Constitutional Convention is called, can other articles and amendments be tinkered with in that same Convention? or do they have to state the purpose of the Convention prior to the vote for a Convention and strictly stick to the purpose?


4 posted on 08/05/2010 7:39:32 AM PDT by ThomasMore (Patrick Henry and Joe Wilson...Patriots past and present!)
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To: ThomasMore; Congressman Billybob
As Congressman Billybob explained it to me, the Convention is the agent of the states, and the states define the purview of the Convention by the language of their petitions to Congress requesting that Congress call that Convention. According to the Principle of Agency, an agent cannot go outside the purview of his agency agreement, so any attempt to turn the Convention onto subjects outside its purview, as defined by the states, would be out of order and forbidden.

At present 32 states have petitions in Congress asking for a Convention to address a balanced budget amendment. Should 2 more states send petitions to Congress for a Convention to address a balanced budget amendment, Congress would be required to set a time and place for a Convention to address a balanced budget amendment only. Phyllis Schlafly, Bob Unruh, and other writers who have been trying to whip up hysteria about a possible Runaway Convention have not studied the issue.

If you want a Convention open to address all possible subjects, you need to get 34 states to petition for one. (There are 2 petitions for a General Convention that have been out there since the 1790's, but their "freshness" is subject to debate in Congress and the courts.)

5 posted on 08/05/2010 7:57:26 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Publius

later read


6 posted on 08/05/2010 8:07:31 AM PDT by FatherofFive (0bama is dangerous and must be stopped.)
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To: ThomasMore
If there is a need to amend or create a new amendment to the Constitution, and a Constitutional Convention is called, can other articles and amendments be tinkered with in that same Convention? or do they have to state the purpose of the Convention prior to the vote for a Convention and strictly stick to the purpose?

Short answer: since it has never happened, no one knows.

There is one theory that it depends on the applications by the states. If 2/3rds of the states call for a Convention to propose an Amendment that human life starts at conception, say, the convention will be restricted to that and that an amendment proposing to repeal the Second Amendment would be out of bounds. Only if the state applications were open-ended would the Convention have the right to propose anything it wants.

There is the alternative theory that once the Convention meets, everything is on the table right from the start, baby. No matter what the states originally said.

Remember in either case any proposed amendment(s) must still be ratified by 3/4ths of the states. So don't imagine a hypothetical Constitutional Convention as a quick, easy end run around the will of the people.

7 posted on 08/05/2010 8:16:18 AM PDT by Cheburashka (Stephen Decatur: You want barrels of gunpowder as tribute, you must expect cannonballs with it.)
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To: Publius
Should I remind you of what happened when the states called a convention for the express purpose of amending the Articles of Confederation?
8 posted on 08/05/2010 8:51:59 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun
Incorrect. Read Line 5 of this paper.

The states, upon calling the Convention, never used the word "amend". It was the Confederation Congress that used the word "amend", but it had no authority to "instruct" the delegates to the Convention. That right belonged exclusively to the states. All Congress did was muddy the legal water, which is why Madison addresses it.

Please read the entire paper.

9 posted on 08/05/2010 8:56:51 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Cheburashka
Short answer: since it has never happened, no one knows.

Correct, although there have been attempts to define the purview and process of the Convention.

In 1965, the American Bar Association issued a report on whether the "One Man/One Vote" ruling would affect a Convention. From this report came a bill drafted by Everett Dirksen that attempted to set rules for single-subject petitions, freshness of petitions, how delegates to a Convention would be chosen, and the rules of operation of a Convention. Upon Dirksen's death in 1969, Sam Ervin picked up the torch and got it passed by the Senate, but the House refused to consider it. Upon Ervin's retirement, Orrin Hatch picked up the torch, but his last attempt at getting the bill passed ended in 1991 when the Judiciary Committee killed it.

In 2000, William Walker launched Walker v. US, a suit that attempted to force the courts to call a Convention based on the existence of hundred of petitions for different subjects that had been piling up since 1789. (I spent several hundred hours over a two year period editing Walker's brief.) Unfortunately, the federal court in Seattle refused him standing, and so did all higher courts.

At the moment, both arguments can be made. The Principle of Agency would require a Convention to stick to the subject requested by the states, but the idea that the Convention is a sovereign body during the time of its existence would argue for no limits. So you're right. In the end, the legislatures or ratifying conventions of 38 states would decide whether the Convention exceeded its mandate or not.

10 posted on 08/05/2010 9:32:21 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Publius
Since I've researched this subject for a couple decades, and written about it in one of my books, let me add some factual details here. First, Congress passed its recommendory resolution after nine states had already committed to go to Philadelphia, at the invitation of the Annapolis Convention of 1786.

Note that the Resolution from Congress begins, “Resolved that in the opinion of Congress....” The records of the ratification conventions includes the authority of each state delegation. Only four states limited the authority of their delegates.

Delaware insisted that its delegates demand a continuation of one vote for each state in Congress. Massachusetts and New York both insisted that their delegates only act to amend the Articles of Confederation, not “do what was necessary” in the words of Alexander Hamilton in the Final Report of the Annapolis Convention.

At the end, New York was no longer present. Two of its delegates left on July 10th, never to return. Hamilton did come back to Philadelphia, but since he was not a quorum. NY was officially absent.

Rhode Island was absent. It took no part in the Convention and initially refused even to hold a ratification convention. That leaves Massachusetts. Two of its three delegates, Rufus King and Nathanial Gorham, after communicating with John Hancock and other state leaders at home, decided to exceed their authority, and vote for the new Constitution. The third Massachusetts delegate was Elbridge Gerry (origin of the word “Gerrymander”) stuck to his guns, refused to vote for the new Constitution, and refused to sign it,

So, the argument that the Philadelphia Convention was a “run-away” actually boils down to an argument that two delegates, Gorham and King, were run-aways. The Articles of Confederation give Congress zero authority to call or control a convention.

And now you know the rest of the story.

John / Billybob

11 posted on 08/05/2010 9:43:00 AM PDT by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob

Thanks for checking in. You always add a lot to discussions about the Constitution.


12 posted on 08/05/2010 9:44:46 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Cheburashka
I love reading these statements and understandings of Constitutional Law. Thanks for the explanation, as well as from Publius and of course the ever knowledgeable Congressman Billybob. Its so important to protect these truths that make us who we are. With the nutjob progressives running around, you never know what freedom will be tread upon next.

I have a cool-aid drinking sister-in-law who insists the Constitution is a living document. I know their methods for hijacking. I've always believed that the Constitution is "living" to the extent that it takes 2/3 to call the convention and 3/4 to ratify. However, I've always been afraid to mention having a Constitutional Convention to make it "living" for fear they will hijack our way of life and make major radical changes. But this clears up a lot. So, 2/3s need to call for either a particular amendment/modification which in essence would limit the convention to just that purview, or it would have to call for a General Convention, in order to change/add anything, which hasn't happened. Then and only then could any changes/mods be made IF 3/4 states ratify.

Hope I got that right.

13 posted on 08/05/2010 11:49:24 AM PDT by ThomasMore (Patrick Henry and Joe Wilson...Patriots past and present!)
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To: ThomasMore
I have a cool-aid drinking sister-in-law who insists the Constitution is a living document.
If the Constitution is alive but lacking in some way, the Amendment section of the Constitution is available.
But in fact she means that the Constitution is dead.

14 posted on 08/05/2010 12:40:25 PM PDT by conservatism_IS_compassion ( DRAFT PALIN)
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To: Publius

“The only topic here is whether there was a meaningful way to fix the Articles of Confederation without starting all over. Build a case, if you can!”

Improvements to the Articles were introduced by William Patterson of NJ early in the convention.

http://www.usconstitution.net/plan_nj.html

Notice in #6 the phrase, “any thing in the respective laws of the Individual States to the contrary notwithstanding.”

Near identical words appear in Article VI of the Constitution. It is a puzzling phrase that has always appeared to me to give states the negative on federal law.


15 posted on 08/05/2010 12:54:49 PM PDT by Jacquerie (We live in a judicial tyranny - Mark Levin)
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To: ThomasMore
Hope I got that right.

Yes. Close enough for government work.

16 posted on 08/05/2010 12:58:52 PM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: conservatism_IS_compassion
But in fact she means that the Constitution is dead.

Exactly. The "living document" argument is, essentially, the limitless reinterpretation of a static document whose safeguards prove inconvenient to social reformers. Who wants to go through the process of amendment, review, and ratification when one can simply get a sympathetic judge to rule that what says night is actually day?

17 posted on 08/05/2010 1:55:35 PM PDT by Billthedrill
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To: ThomasMore

I think your post raises a good point. If we elect judges who declare that red is gray and yellow is white then there is no constitution, living or otherwise.


18 posted on 08/05/2010 3:49:27 PM PDT by MontaniSemperLiberi
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To: Billthedrill; ThomasMore
I have a cool-aid drinking sister-in-law who insists the Constitution is a living document.
If the Constitution is alive but lacking in some way, the Amendment section of the Constitution is available.

But in fact she means that the Constitution is dead.

Exactly. The "living document" argument is, essentially, the limitless reinterpretation of a static document whose safeguards prove inconvenient to social reformers. Who wants to go through the process of amendment, review, and ratification when one can simply get a sympathetic judge to rule that what says night is actually day?
It follows that the sovereign remedy for a "living" - but actually dead - Constitution is for the states to exercise their amendment power to the full. There being little prospect of attaining a 2/3 majority in both houses of Congress for a project which would defang the ruling class, we are reduced to calling for a constitutional convention.

A 3/4 supermajority of states is required to call for a constitutional convention - but since a 3/4 supermajority of states is required to ratify any proposed amendment in any case, the convention approach is actually easier than the congressional one. The great difficulties are:

  1. to allay fears of a runaway convention, and

  2. to compose amendment(s) which will command the assent of 3/4 of the state governments and will constitute a real restraint on judicial activism.
IMHO those two challenges are really one. They amount to a challenge of using modern communications, esp the internet, to decide a priori what amendment(s) the convention is to vote out. And all 38 states in the group would covenant not to consider any other amendments and to send to the convention only delegates who are committed to a mere pro forma session to rubber stamp the prior agreement.

I would recommend an amendment which would reduce the number of Justices on SCotUS to five, removing two specific justices from the court - any two, so be that Scalia, Thomas, Alito, and Roberts are not among them (if losing Justice Kennedy were the price of getting rid of one of the reliable liberals, so be it. Even that would move the court to the right, tho it would obviously be better if the two newest justices were the ones to go). But the principle would be established that the states were capable of enforcing their rights - and that would sober up Washington.


19 posted on 08/05/2010 5:57:10 PM PDT by conservatism_IS_compassion ( DRAFT PALIN)
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To: conservatism_IS_compassion
A 3/4 supermajority of states is required to call for a constitutional convention...

Incorrect. It requires the legislatures of two-thirds of the states to force Congress to call a Convention for Proposing Amendments under Article V.

Please re-read Article V.

20 posted on 08/05/2010 6:00:40 PM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Publius
A 3/4 supermajority of states is required to call for a constitutional convention...
Incorrect. It requires the legislatures of two-thirds of the states to force Congress to call a Convention for Proposing Amendments under Article V.
My oversight, but so much the better - it is easier to call a convention than it is to ratify an amendment.

The point being, that the very process of calling the convention is an assertion of state authority - and thus of federalism vs. the de facto centralism which so-called "liberals" presume to be the natural order of things.

Perhaps an amendment could merely state that the states have the authority to require voters to have photo ID. Any commonsense thing that you can name that the federal courts have refused to allow the states to do, or forced them (eg, Arizona) to refrain from doing. "Czars." That sort of thing. It seems like there are a million of them. I'd propose one that forbade broadcast journalism from announcing their predictions of the outcomes of elections until mathematical certainty was attained, to prevent any recurrence of FL 2000.

But most of all, the states need to use the Amendment process to take control of the judiciary. That would be more controversial, but it is nonsensical to tolerate a situation where the judiciary dominates the states. But even if you did no more than to pass an amendment which rifle-shot at one particular abuse, it would affect the politics of Washington for a long time. 34 states would be enough to call the convention. Once convened, the convention would inevitably propose something. Then there would be news from various state capitals as the ratification process progressed, whether or not to an actual change in the Constitution.

But again, the actual negotiations could and would occur online before the convention was even called.


21 posted on 08/06/2010 7:14:13 AM PDT by conservatism_IS_compassion ( DRAFT PALIN)
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To: conservatism_IS_compassion
Once convened, the convention would inevitably propose something.

Not so fast. Please read Posts #5, #7 and #10 on this thread.

22 posted on 08/06/2010 11:24:59 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Publius

Interesting. Thanks.


23 posted on 08/06/2010 5:37:38 PM PDT by conservatism_IS_compassion ( DRAFT PALIN)
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