of . . . independence” or whether by surrendering to “unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution. . . .”24 Such was the spirited language of the resolution’s preamble, written by James Madison. The Virginia General Assembly passed the resolution unanimously, acceded to the proposal from Annapolis, and appointed seven delegates to the convention. But the resolution contained a crucial stipulation inspired by the Assembly’s newfound commitment to popular sovereignty, namely that the new constitution should be established not by the legislatures of the several States meeting in Congress but by a convention gathering in Philadelphia, followed by ratification of the several States. Thus did Virginia prepare the way not only for the Federal Convention but for the State ratifying conventions as well. New Jersey, Pennsylvania, North Carolina, and Delaware promptly followed suit, and by February 1787 five States had already appointed their delegates.
Faced with this development, the Continental Congress on February 21, 1787, reluctantly endorsed the Philadelphia Convention. This removed all doubt as to the legality of the Convention, and seven more States promptly appointed delegates. Rhode Island, by its own choice, was the only member of the Confederation not represented at the Convention.
The inability of the Continental Congress to play a role in the drafting of the new Constitution was probably a blessing. As Madison diplomatically put it in his preamble to the Virginia resolution, a Philadelphia Convention would be “preferable to a discussion of the subject in Congress, where it might be too much interrupted by ordinary business, and when it would, besides, be deprived of the counsels of individuals who are restrained from a seat in that assembly.”25 One of the real reasons, of course, was that the Continental Congress was a rather lackluster body, possessing neither the political acumen nor the prestige to lead the nation in the formation of a new government. As one noted constitutional historian, George Ticknor Curtis, put it, Congress was bypassed because “the highest civil talent of the country was not there. The men to whom the American people had been accustomed to look in great emergencies—the men who were called into the convention, and whose power and wisdom were signally displayed in its deliberations—were then engaged in other spheres of public life, or had retired to the repose which they had earned in the great struggle with England.”26 James Madison, one of the few delegates to the Federal Convention who held a seat in the Continental Congress, did more than anyone else to keep the Congress in the shadows and out of the way.
THE FEDERAL CONVENTION
The delegates to the Federal Convention, all of them appointed by their State legislatures, began assembling in early May 1787. Lacking a quorum—that is, a sufficient number of delegates from at least seven States—on the appointed day (May 14), the Convention did not convene for business until May 25. Its task was completed nearly four months later, on September 17. Although the Continental Congress had authorized these proceedings, the delegates confronted a number of political and legal difficulties in seeking to change the Articles of Confederation. In the first place, the authorizing resolution adopted by the Congress, even though it did not purport to define the powers or specify the procedures of the convention (which thus gave the delegates the freedom they needed to apply their own knowledge and wisdom), nevertheless limited the scope of their proceedings to a revision of the Articles. Specifically, it declared that the delegates were to meet in Philadelphia for “the sole and express purpose of revising the Articles of Confederation.”27 Moreover, the instructions given to the delegates by their State legislatures varied from State to State, with some expressly or implicitly limiting their authority to “revising the Articles of Confederation.”28 In the second place, Article XIII of the Articles provided another barrier by requiring that all proposed amendments were to be approved by a unanimous vote of the States in Congress and ratified “by the legislatures of every State.”
From the outset, then, the architects of the Constitution confronted seemingly insurmountable obstacles in their efforts to establish a new government. Even the prospect of limiting their task to modest amendments of the Articles seemed doomed to failure, given the unanimity requirement and Rhode Island’s intransigence. But the solution to these difficulties was already provided by the Virginia resolution of November 1786 that had forced the hand of Congress and encouraged the States to act independently. It derived from a powerful and enduring, if not dominant, strain in the American political tradition that found expression in the Declaration of Independence, namely the principle of consent that embraced the fundamental right of the people “to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” Clearly, if the American people had a right to revolt against the British government, secede from the British empire, and live independently under a government of their own choosing, they also possessed a right to alter or even abolish the Articles of Confederation. This right of self-government, as the reasoning of the Declaration makes clear, is anterior to, and more fundamental than, any act of the Continental Congress or even the Articles. Accordingly, it provided “legitimate” grounds for the delegates to disregard the obstacles posed by Congress or the Articles to the creation of an entirely new national government. James Wilson of Pennsylvania, one of the most influential members of the Federal Convention, put the matter succinctly when he later addressed the Pennsylvania ratifying convention. Critics of the new Constitution, he observed, have argued that “the very manner of introducing this constitution, by the recognition of the authority of the people, is said to change the principle of the present Confederation, and to introduce a consolidating and absorbing government.” But such is not the case, he argued; sovereignty resides in the people. “The people therefore have a right . . . to form either a general government or state governments. . . . This, I say, is the inherent and unalienable right of the people.” The Declaration of Independence, he concluded, strengthened and affirmed this principle. Quoting from the Preamble, Wilson emphasized that, to secure the rights of life, liberty, and the pursuit of happiness, “governments are instituted among men, deriving their just powers from the consent of the governed. . . . This is the broad base on which our independence was placed. On the same certain and solid foundation this [new] system is erected.”29
The fact that the delegates were not meeting in the Continental Congress, as required by the Articles, but in a constitutional convention—for the sole purpose of “revising the Articles of Confederation”—gave a clear indication even before the Convention got under way that the old way of writing a constitution, much as a legislative assembly would draft a statute, was no longer acceptable. In the first days of the convention, Governor Edmund Randolph presented the Virginia Plan to the delegates, a proposed constitution, much of it apparently written by Madison, that served as the principal focus of debate during the early stages of the Convention. The 15th Resolution of the Virginia Plan, embodying the principles of the Virginia resolution of 1786, provided “that the amendments which shall be offered to the Confederation by the Convention, ought . . . to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people, to consider and decide thereon.”30 In effect, the Virginia Plan rejected the very procedure required by the Articles of Confederation and proposed instead that the American people approve any changes of a constitutional nature in State ratifying conventions.
Notwithstanding the progress that had been made in Massachusetts and New Hampshire, a few New England delegates at the Philadelphia Convention expressed opposition on June 5 to this “new set of ideas [which] seemed to have crept in since the Articles of Confederation were established.”31 But the Virginians held their ground. A radical departure from the procedure prescribed by the Articles was justified, said Madison, “because the new constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.” To be sure, “the Articles of Confederation were defective in this respect, resting . . . on the legislative sanction only.”32 George Mason agreed. When the issue came up again on July 23, Mason declared that he “considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The legislatures have no power to ratify it. They are the mere creatures of the State constitutions and cannot be greater than their creators.”