Did the Founders Blunder?

Founding Era Conventions: FL Law Review 2013

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Part 1: Constitutional Convention

1787 Constitutional Convention: Illegal or a Runaway?

A broadly stated false authority by the John Birch Society, Eagle Forum, and others is that an Article V convention will surely result in a runaway? Where’s the evidence? Which conventions ran away?

The claim continues: The Constitutional convention of 1787 was illegal and, as such, a runaway? Or the convention did not follow Congress’ instructions. Where’s the evidence?

The claims sound authoritarian and authentic but lack any evidence for their legitimacy. There is, however, plenty of historical documentation to the contrary.

Evidence Abstract

The false claims originated in the 1960s and ‘70s by progressives.
The records provide no evidence of a notable ‘runaway’ going back three centuries.
The claims suggest that George Washington administered an illegal convention.
The Articles of Confederation created a weak government leading us to a crisis.
- No authorization to call a convention
- No way to pay for the war, soldiers, supplies, or arms
- Congress had no taxing power.
- Each state had its own currency and, in effect, was its own sovereign nation.
- Each state promised to send money to Congress, but rarely did.
America was close to bankruptcy.
Conventions were common, having begun in the early 17^th
Conventions occurred every 3 ½ years during the Founding Era.
The 1787 convention was suggested by the Annapolis convention, & called by VA, and NJ legislatures.
The Confederation Congress did not call the Constitutional Convention or instruct it.
States could have, and can, take legal action against delegates for disobeying their commissions.
The convention process has proved repetitive and consistent over the centuries.
The Supreme Court has upheld rulings favoring Article V

The claim of a ‘runaway’ is fairly modern, having its origins in the 1960’s and ‘70s when progressives suggested the process could run away and rewrite the Constitution. It was driven by an appeal to false authority out of fear that a convention might over-turn favorite Supreme Court rulings such as Roe v. Wade. Constitutional scholars agree that recorded evidence to support a runaway scenario today has yet to be found.

It is hard to imagine George Washington sitting at the head table of the Constitutional Convention in Independence Hall in Philadelphia leading Madison and the others to break 150 years of convention precedence. According to the claim, he would have been overseeing an illegal convention of legally called state’s authorized commissioners attempting to reform the weak and failing US government. America’s existence was at stake as the Articles of Confederation were inadequate and failing the country. Over the previous century and a half, colonists had been meeting in conventions resolving problems just like the convention was doing in 1787.

The new nation’s first constitutional foibles included:

The inability to pay the War debt including wages due the army or arms or supplies.
Congress did not have the power to tax.
Each state had its own currency.
The Articles of Confederation did not authorize Congress to call a convention.
The National government printed “Continentals” (greenbacks) & inflation soared. Brittan counterfeited & distributed phony Continentals to disrupt the American economy.
Congress did not have the power to regulate foreign or interstate commerce.
There was no executive authority to enforce laws passed by Congress.
America had a unicameral or single house congress and chose a new president every year.
John Hanson (MD) was the Congresses first president in 1781 under the Articles.
There was no national judicial system or authority.
Each state could send as many congressmen as they wanted but each state had only one vote.
Each state promised to pay its share to Congress as required by the Articles of Confederation, but rarely did they send it.
Amendments to the Articles of Confederation required a unanimous approval.
Laws passed by Congress required 3/4 approval
Each state was its own sovereign, making it almost a country unto itself as a separate entity of the American Union.
States could levy tariffs on each other for goods crossing the state line.

In short, the American government was in chaos, weak, and leaderless. Calls were increasing in the mid-1780’s by the people and their state legislatures for change.

Beginning in the 1630’s, convention practice dictated that a colony had the authority to call a meeting to attend to help resolve a particular issue. The Constitutional convention was called by the Annapolis convention of 1786, and subsequently by two state legislatures (VA & NJ), “to devise such further provisions as shall appear to them necessary to render the constitution (Articles of Confederation) of the Federal Government adequate to the exigencies of the Union.”

Every anti-Article V (John Birch Society et al) false authority argument the media and lobbyists promote has missed the recorded historical facts. And they offer no valid evidence to counter the historical records.

The Confederate Congress could not call a convention because the Articles of Confederation gave the Congress no authority to make a legally-binding call. If the states decided to convene, as a matter of law they—not Congress—fixed the scope of the convention and their delegates authority.

The historical records prove beyond a doubt that the Constitutional Convention of 1787 was legally called, operated, and met its prescribed mission.

Learn More

The COS in American History

Disinformation Led to Article V Opposition

Conventions for Proposing Amendments

Defying Conventional Wisdom

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Part 2, We Don’t Know How Conventions Work

Anti-convention groups claim that since Article V does not explain how conventions work, we therefore don’t know and shouldn’t do what we don’t know how to do.

Their false authority claims nobody knows how many delegates a state can send? Who chooses the delegates? Who gets to vote: delegates or states? Do the states have any recourse over a delegate abusing his commission? Who would decide the rules? Who would lead them?

Evidence Abstract

We have four centuries of records telling us how they work
Historians point to many hundreds of conventions in towns, colonies, and states.
Article V offers no details because most people knew generally how they worked.
Of hundreds held, twenty notable conventions occurred prior to the Constitution in 1787
Sixty-six conventions occurred post Constitution—including Article 7 & 21^st Amendment
Procedures followed common law and precedent.
Early conventions originated 1 state, 1 vote; colonies determined & instructed delegates;
Conventions were not legislative but rather solution oriented & did not reoccur.
They chose a president and secretary
The colony/state called the convention; they were limited or unlimited in subject scope.
State legislatures decide how to discipline rogue commissioners.
Earliest conventions: 1620 (MA, Mayflower), 1639 (CT, constitution), 1643 (CT, amendments).
The latest convention: 2017—BBA Task Force Planning Committee (Phoenix AZ)

Scholars and historians have nearly four centuries of convention records and documents to tell us how they work. Much work is available in public libraries. There are volumes of records, accounts, researched by scholars and historians on conventions dating back many centuries.

The details of how a convention works is not written down in Article V because of their frequent calling, they knew how they operated. Writing it in the Constitution would have been redundant. Instructions for how to administer habeas corpus was not included in Article I, Section 9, Clause 8 either.

Article V codified more than a century of precedent of established processes that proved to resolve a societal or government problem. They established an operational pattern that continues to this day.

The purpose of a convention was to bring people together from neighboring areas to solve a specific problem that couldn’t be solved locally. The operating traits evolved and the successful one’s continued to be used in future meetings over the coming centuries. Here’s are examples of commonly used convention operatives dating back to the early 17^th century. These operatives have continued, through the colonies to states, to the last convention in Phoenix Arizona in 2017.

They were held as local, regional or national meetings
In the early years, conventions or councils or congress’ were gatherings called in small communities or towns that grew to include colonies and states.
Subjects varied from safety and militia to funding the Revolutionary War to dealing with inflation and trade agreements. They dealt with differing currency’s, reforming America’s government, to writing the rules for a future convention. And everything in between.
Each colony/state legislature decided on how to choose its commissioners.
Each colony/state legislature elected their commissioners, deciding how many to send.
Each colony/state commissioned or wrote the rules and instructions governing the commissioners or delegates to the convention.
Each colony/state decided, or not, the penalties for delegates disobeying their commissions.
Commissioners were sometimes paid.
Most times a convention met, it wrote its own rules. (some commissioners had attended prior gatherings and understood the rules enough and didn’t always record them again but followed them.)
Each colony/state reverted to the ‘one colony/state, one vote rule’ established early in the process.
Each convention elected a president and, for the most part, a non-delegate secretary.
Many conventions opened with a prayer.
Each convention decided its committees.
The records show conventions stayed close to the subject’s call. (If the subject was broadened it was done so before beginning the convention.)
Conventions ended sine die or with the understanding that they were finished and would not reopen the proceedings.
Commissioners would return to their colony/state with the results.
The conventions kept records.
Not all conventions accomplished the goal of the subject call. However, the most notable convention records do not indicate a failure of the administrative operation.

Our history is replete with scholarly evidence that American’s called and used a formal system of convention operation over a long period of time and with little exception in detail.

Learn More

List of COS and Colonies in US History

Defying Conventional Wisdom

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Part 3: Why Do We Have Two Constitutions?

Where’s the evidence to the claim that the Constitution is not the problem? Just follow it! Just enforce it?

There is a false authority claim, if we just followed and enforced it, America would be all right. Therefore, there would be no need for an amending convention. But we’re following the wrong one!

Evidence Abstract:

The Constitution is followed and enforced, just the wrong one.
There are two Constitutions: The Framers original and the one used by SCOTUS today.
America’s problems point to DC & can be attributed to two short clauses totaling 28 words.
The abuse of the commerce and welfare clauses are the primary source of our problems in DC.
The welfare misinterpretation has allowed Congress the power to spend & tax without limit.
The commerce misinterpretation has allowed Congress to regulate without limit.
Under commerce, the Court ruled Social Security is nothing but a standard welfare program.
Under welfare, the Court ruled that a farmer must sell and cannot consume his own wheat.

False authorities claim our DC problems are not the Constitution’s fault while also agreeing that our unconstitutional DC is corrupt and dysfunctional. They argue that there is no way to mend DC other than by voting for politicians with good character and then to rely on their oath as required in Article VI.

The naysayers’ have only scratched the surface of DC’s culture problem and not followed the research and analysis of Constitutional scholars who point to a very different story.

From Supreme Court case histories, the scholars have illustrated how the abuse of two clauses, the welfare and commerce clause, have resulted in nearly all that ails the federal government. Of course, there are other issues in Washington DC that need repairing: term limits, limits on the judiciary and a method by which, in addition to elections, states and citizens can more directly hold DC accountable.

There are two reasons why following the document today will not resolve what ails the Constitution. The first is that we have two constitutions. The first Constitution is the version written by the Framers in 1787 and amended over successive centuries through the first clause of Article V. And the second Constitution is the version interpreted by the Supreme Court.

The founder’s version contains approximately 4400 words on one sheet of parchment; when the Bill of Rights are added, about 7500 words. Contrast that with the Supreme Courts library of Constitutional interpretations which contains well over 500 volumes with several thousand pages each totaling a word count in the many millions. These Constitutional interpretations were made by unelected lawyers in black robes to fit a political agenda at the time.

The second reason is that today the Constitution has some inherent problems. It is like any tool that has been used, abused, and modified for two-plus centuries and there are bound to be issues that need fine tuning to correct the misinterpretations of the Founders intentions. The Constitution is not perfect as evidenced by the need for the 21^st Amendment to repeal the 18^th. The same argument could be made for the income tax (16^th) and the transfer of the state’s sovereignty to the federal (17^th).

The welfare clause in Article I, Section 8, states, “The Congress shall have the power to lay and collect taxes…to provide for the common defense and general welfare.”

Today Congress takes the position of unregulated authority to enable it to spend and tax without limits. The Court has not checked Congress’ power and allowed unconstitutional interpretations to win the day for the government. It also readily admits there are no Congressional limits on politician’s carte blanche use of taxpayer’s resources.

Social Security has been labeled by the Court as welfare and not an entitlement. A politician will never tell you that, but the Supreme Court said it in Helvering v. Davis (1937).

Today our grandchildren and future prodigy are in debt for over $22 trillion because Congress is not being held accountable for their spending. After all, they’ll be long dead by the time the bill comes due. In 2018, taxpayer’s debt reached its 61^st consecutive year of increases. We shelled out $371 billion on debt interest alone. That’s the same amount given the government to distribute for Medicaid and is almost half of what Medicare cost (including the $35 billion lost in fraud and waste, according to Treasury).

James Madison and Alexander Hamilton had two different views on the Constitutions ‘welfare clause’ during the 1787 convention:

Madison argued that America’s ‘welfare’ was solely contained within the 18 enumerated powers given the federal government in Article I, Section 8. This was also the dominate view among the founders. Hamilton thought, however, that the clause was an independent grant of spending authority. One opinion reflects a limited government versus an unlimited one. The anti-Federalist versus the Federalist.

Hamilton thought, contrary to his opinion on the unlimited welfare clause, that if the states could spend on a particular issue, then the federal had no power under the welfare clause to spend on that issue. So, the limits on the welfare clause were to be, in his mind, for the states to decide.

For example, if the states spent money on education, the federal had no power to tax and spend for the same purpose. If we followed either approach, our federal debt would be zero and our taxes could be cut in half and we’d still be in the black. And each state could measure its standard against the others without interference from the federal. The founders believed in a limited government and that if the states could spend on the subject, the federal government could not.

The commerce clause states, “The Congress shall have power…to regulate commerce…among the several states…”

During the founding era, the dictionary described “commerce” as meaning ‘traffic’ or ‘shipping’ while today it means any “economic activity” that can be regulated. It took several iterations over many decades for the Court to stretch its meaning.

Court case examples tell the story:

1824 (Gibbons v. Ogden) the clause was broadened from mere traffic to include the navigation of steam ships.
During the 1930’s, the Court expanded the clause to include agriculture, manufacturing, and production intended for interstate sale.
In Wickard v. Filburn (1942), it expanded it to include noncommercial activity. As such, Ohio farmer Mr. Wickard’s fine of $175 was upheld by the Supreme Court, under the commerce clause, for consuming his wheat himself and not selling it on the open market.
Today the commerce clause is used to justify laws on civil rights, industry bail outs, nationalization of companies, required healthcare purchase, and regulations of divorce, economy, guns, the environment, and a plethora of other intrusions into American’s lives better left to states.

The Constitution, with its method for self-correction either by government or by the people and states, has shown the world that it is the finest form of government ever devised even with its few foible’s. It worked well over the first hundred plus years, but now needs some tender loving care. Legal and yet safe care.

So, to the skeptics and false authorities, where is your evidence that the Constitution is problem free? Or are these two clauses the real problem? Are they Washington DC’s primary source of power and wealth that are causing our crisis?

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Part 4: How Can Article V be a Con Con?

Where’s the evidence that an Article V is a con con or constitutional convention?

Evidence Abstract:

The Constitution contains no provision for calling a convention to rewrite itself.
The Constitution does authorize two ways to amend the government and document.
The first way: Constitution authorizes Congress to propose amendments.
- Congress has attempted to propose amendments 11,660 times since 1788.
- Congress has been successful 33 times.
- The states have only approved 27 of those proposals.
The second way: Constitution authorizes the states to call a convention for proposing amendments.
- States have attempted 437 amending conventions, never reaching the 2/3 minimum required due mainly to subject conflicts.
- 648 recorded regular conventions have occurred over the last 4 centuries
- Since 1788, there have been 64 Article V type conventions (13 Article VII ratification, 10 non-amending & 41 for the 21^st Amendment ratifications)

For anyone who has taken the 8 seconds to read the convention clause of the Constitution’s Article V while searching for the words, ‘constitutional convention’ or ‘con con’, they’ll be disappointed, because they aren’t there. They don’t exist. Instead, what is found: “…or, on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments, which…” The John Birch Society, Eagle Forum, Common Cause all insist that the words “constitutional convention” are in that quote. Do you see them? I don’t either.

A constitutional convention, by definition, would mean the rewriting of our Constitution and that is outside the defined and structured document that defines our government. It is noted in the Declaration of Independence as justification for over throwing a tyrannical government. But in Article V, a revision method, not a rewrite, is codified from their extensive experience of the regular use of conventions. Nowhere in the U.S. Constitution does it authorize its rewriting. A con con is a derogatory term used to deflect from and hide the facts. A con con would be used for an uncontrolled and unauthorized revocation of our government and Constitution and has been invented by the uninformed as a scare tactic. We’ve only done one Constitutional convention, while we’ve successfully administered hundreds of conventions of colonies and states for nearly four centuries.

The Constitution does authorize its amending for the purposes of repairing or fixing certain elements pertaining to the existing structured government. After the ninth state ratified (NH June 21, 1788), the remaining five knew they had to in order to validate the Union. Even though the Bill of Rights were promised yet to come, and after contentious debates, they all accepted the new form of government because it contained the protection of Article V.

Article V is a controlled and authorized way of repairing elements of our government. We used the process for adding the Bill of Rights, women’s right to vote, income taxes, elimination of slavery, to prohibit alcohol, and limit of presidential terms, among others.

Congress has proposed changes to the Constitution nearly 12,000 times over the last 228 years with 33 proposals making it to the states, but only 27 proposals being approved by the states. The American people give Congress an approval rating of about 10-12% and yet they’re the only ones who have successfully proposed changes. It’s hard to believe that We the People trust Congress with our Constitution more than we trust ourselves. We don’t have a self-approval rating below that of Congress’. Most Americans believe that We the People should have more input with Congress in the darkest of times. Would corruption and debt be as high as it is in Washington DC if we the people encouraged our closest allies, state legislatures, to call a convention to amend the Constitution and add limits on taxing, spending, terms of office and other restrictions? No, they would help us put an end to the rising debt and dysfunction.

We the people should remember that we own this government and we have all the rights and they have none. It seems that when elites can’t disprove a theory or show credible evidence to the contrary, they resort to throwing rocks; any old dumb rock…like a con con rock.

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Article V – Saving the Constitution

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Part 5: Federalist #40 and the Constitutional Convention

Where’s the evidence that the Constitutional Convention ran away in Federalist #40? That it had been called to only amend but then threw out the Articles of Confederation, forming a new system of government?

Evidence Abstract

James Madison authored Federalist #40 confirming the purpose of the convention.
Madison affirmed the Founders met the Virginia call to ‘fix’ the failing Confederation.
The convention process had been used repeatedly over the last 150 years.
Federalist #40 reinforced the practice of colonies and states in commissioning delegates.
He confirmed the states authority within their delegates commissions
Madison confirmed the Framers did not exceed their powers or abuse Congress’s minor role.
Any resulting amendments to the Articles of Confederation, it was agreed at the 1786 Annapolis convention, had to follow the original ratification method.
Congress and all the states approved the revised ratification process.
Parts of the Articles of Confederation are in the Constitution.
Madison stated the importance of the process and rejected criticisms as mere technicalities.

Federalist #40 clearly reinforces the call for a convention to form, “a national and adequate government.” That call by Virginia’s legislative resolution of November 23, 1786, in part, stated, “…to assemble in Convention at Philadelphia as above recommended and to join with them in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Foederal [sic] Constitution adequate to the Exigencies of the Union and in reporting such an Act for that purpose to the United States in Congress as when agreed to by them and duly confirmed by the several States…”

Madison did not concede the convention was a runaway. In fact, he embraced the convention in Federalist #40. He said, “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 [i.e. the states].”

Federalist 40 confirms that each state authorizes binding commissions to the delegates. The object of the call(s) was to acquire a firm national government, adequate to the exigencies and preservation of the nation, “or by such further provisions as should appear necessary.”

Their insistence on the wording confirms that people understood that the convention recommended by the delegates at Annapolis, endorsed by seven states, and promoted by this congressional committee was not limited to proposing changes in the Articles. It was to propose changes to the federal political system.

He then spent the rest of Federalist #40 proving that the delegates followed their states commissions. And he finishes with, “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…”

His one exception was regarding the change of ratification from 100% to 75% of states and he was dismissive.

A majority at the 1786 Annapolis convention insisted that any amendments to the Articles of Confederation would have to be approved by both Congress and the states. Per international law, treaties must be approved by all parties and since the states were individually sovereign (13 countries), all did ratify the Constitution. This was necessary because the Articles of Confederation was, in essence, a treaty between 13 sovereign nations that required all participants to agree.

In addition, Article VII required the people to ratify the Constitution and, to stay in accord with the We the People preamble and with the Confederation’s ratification process, 13 state legislatures called for a convention of the people to vote on the merits of the Constitution. That process concluded in May of 1790 with the final signature by Rhode Island.

Over the last nearly four hundred years of convention meetings, the call would describe the problem or issue to be discussed and the attendees (colonies or states) would commission their delegates with either unlimited or limited authority and instructions. If it was plenipotentiary or unlimited authority, the commissioner would propose, debate, and vote on the subject before the convention. If limited, the delegates were guided by their commissions regarding the conventions subject.

The Constitutional Convention was unlimited because it was unclear what had to be done to resolve the Confederation’s problems. But all agreed “to render the constitution of the Federal Government adequate to the exigencies of the Union.” This captures the dire circumstances of America during this period with Washington, Madison, and the Framers desire to do all that they deemed necessary to save the Union.

This was the act of converting the nation from a confederation or league to a federal government.

Madison explained in #40, that important elements of the Articles of Confederation were included in the Constitution. (Articles I, II, III, & IV)

Learn More

Can We Trust the Constitution?

Federalist 40 Study Guide

Article V Library

The Avalon Project