Anyone who supports a future constitutional convention (amendments convention, convention of states, etc.) will want to stop reading this article right now, especially if you claim to respect and admire the Founding Fathers.
For the rest of us, let me share with you the unbelievable and undeniable truth heard on July 23 during the debates and discourses of the Constitutional Convention of 1787.
The day started out uneventfully and unanimously. The delegates assembled in the State House (now called Independence Hall) — who were joined that day for the first time by representatives from New Hampshire — started that day’s session agreeing without debate to a resolution making a provision for adding amendments to the “Articles of the Union,” and likewise quickly agreeing to requiring federal officials to take an oath of office to support the federal government. Simple and satisfactory.
Next, the delegates turned their attention to hammering out the process by which future amendments would be ratified or rejected. Immediately it was obvious that the easy and quick consensus from the morning was over. For the purposes of learning from the wisdom of our Founding Fathers, the speeches delivered and insights shared can help a sincere seeker of truth appreciate the incredible and unpredictable power of conventions considering amendments to the U.S. Constitution.
The resolution that served as the launching pad for the debates on this subject was put forward on May 29 by Edmund Randolph, and called for amendments to be ratified or rejected by “assemblies of representatives,” candidates for which would be recommended by the state legislatures and elected by the people. Debates in early June on this resolution revealed the existence of two factions: those who favored popular approval of amendments and those who thought it was more appropriate for the question of whether to add amendments to be answered by the state legislatures.
James Madison and James Wilson led the group pushing for popular approval, while Roger Sherman and Elbridge Gerry carried the flag of those wanting to leave such decisions in the hands of state lawmakers.
Gerry warned that there were people in the Eastern states who “have at this time the wildest ideas of government in the world.” Oliver Ellsworth of Connecticut stood and added that he “did not like these conventions [those composed of representatives chosen by the people].” “They are better fitted to pull down than to built up constitutions.” Ellsworth was just getting started.
The people in the Eastern states, he explained, cared most about reducing the public debt, but strengthening the central government would increase the public debt, rather than reduce it.
“A new set of ideas seemed to have crept in since the Articles of Confederation were established. Conventions of the people or with power derived expressly from the people were not then thought of. The legislatures are considered as competent,” Ellsworth said, warning that should conventions of the people be the only method by which amendments could be considered, then there would be the states who would refuse to accede to such a process, seeing it as dangerous and unprecedented, resulting in the splitting of the union into two or more confederacies.
“Great confusion,” he predicted, “would result from a recurrence to the people. They would never agree on anything.”
At this point, George Mason of Virginia — who, like Gerry, would not sign the Constitution — stood to explain why the people must be the body endowed with the authority to accept or reject amendments. Mason declared:
The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions — he knew there was no power in some of them — that could be competent to this object. Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished, as the basis of free government.
In other words, there was nothing a state legislature could do that the people could not do, as any power possessed by state lawmakers was given to them by the people, whose power is unmatched and unchallengeable. That sounds good, until you realize the impact of Mason’s identification of people as the creator and states as the creature.
Gouverneur Morris appreciated the latent power in Mason’s description of sovereignty, and he stood and said out loud what many in the room believed, but would never have admitted.
In his Notes of Debates in the Federal Convention of 1787, James Madison records that on that day, July 23, Morris became the first delegate to admit that the convention they were holding — and the government they were creating — was unconstitutional and there was nothing anybody could do about it. Here’s the dangerous truth about the power of that convention, as revealed by Gouverneur Morris:
[I] consider the inference of Mr. Ellsworth from the plea of necessity, as applied to the establishment of a new system, on the consent of the people of a part of the States, in favor of a like establishment, on the consent of a part of the Legislatures, as a non-sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the Legislatures. Legislative alterations not conformable to the Federal compact would clearly not be valid. The Judges would consider them as null and void.
Whereas, in case of an appeal to the people of the United States, the supreme authority, the Federal compact may be altered by a majority of them, in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendment moved by Mr. Ellsworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation. [Emphasis added]
You could have heard a pin drop. Every man in the room realized that Gouverneur Morris had just pulled the curtain back, exposing the wizard, so to speak. Every delegate sitting there with him in that room in the State House had to know that what they were doing was far beyond the authority granted to them by Congress back in February. They had to know that there was nothing Congress could do to stop what they were doing, because they weren’t acting under the authority of Congress or the Confederation. Their gathering was “unknown to the Confederation” and they were not “proceeding on the basis of the Confederation.”
Do you see now why I warned Convention of States supporters to swipe past this article? On this very day — July 23 — 236 years ago, Gouverneur Morris exposed the latent destructive power of the convention they are spending millions of dollars to make happen. Read Morris’ words clearly, and ponder the import of them.
Any convention of states — under whatever name it would adopt — would be beyond the control of the states, beyond the control of Congress, and beyond control of the Constitution! It would be beyond control period! At any time, any one of the delegates at that convention could declare as Morris did, that they would not be bound by the authority that called the convention and that anybody who thought they would adhere to those rules “erroneously supposes” so. The convention, Morris 2.0 would declare, is “unknown to the [Constitution].”
So now you don’t have to speculate whether such a scenario — a convention ignoring and denying the authority of both the rules they agreed in advance would limit their authority, as well as the Constitution that created the convention in the first place — could ever occur. You can just read about how it really happened 236 years ago at another convention of states called to consider amendments.
