Thursday, May 29, 2014
Many people claim that America was founded upon the rule of law. There are some questions that might be raised concerning such a contention.
For example, whose rule of law was American founded upon? Or, what is the nature of such law? And, what justifies the use of that sort of law?
The thirteen colonies (and some were known as provinces rather than colonies) came into existence over a period of about 126 years. Virginia was the first colony and was established in 1607, while Georgia, in 1733, was the last of the thirteen original colonies to be come into being. In between these two historical bookends a number of other colonies arrived on the scene: New York (1613), New Hampshire (1623), Massachusetts (1628), Maryland (1634), Connecticut (1635), Rhode Island (1636), Delaware (1638), North Carolina (1653), New Jersey (1664), South Carolina (1670), and Pennsylvania (1681).
Although the colonies had declared their independence from England in 1776, they further solidified their process of transitioning to statehood as they ratified the Constitution that arose out of the Philadelphia Convention of 1787. Delaware was the first colony to ratify the Constitution and did so on December 7th, 1787, a little over two months after the end of the Philadelphia Convention.
As the other colonies ratified the Constitution, they too reinforced their respective transitions from colony or province to sovereign states of America. The sequence of transitions went in accordance with the following time line: Pennsylvania (December 12th, 1787), New Jersey (December 18th, 1787), Georgia (January 2nd, 1788), Connecticut (January 9th, 1788), Massachusetts (February 6th, 1788), Maryland (April 28th, 1788), South Carolina (May 23rd, 1788), New Hampshire (June 21st, 1788), Virginia (June 25th, 1788), New York (July 26th, 1788), North Carolina (November 21st, 1789), and Rhode Island (May 29th, 1790 – and this occurred only after a popular referendum on the Constitution already had rejected the Constitution on March 24, 1788 by nearly 2000 votes … 2708 against, and 237 for).
Following their declaration of independence from England, most of the colonies/provinces developed their own forms of governance on the basis of constitutions that were written by various leaders within the colonies/provinces. Those constitutions were not necessarily ratified by the people but, nevertheless, became the source of procedural authority within the colonies and provinces (or states) for regulating many of the affairs of the people.
Prior to independence, many of the colonies and provinces were formed on the basis of charters that were issued by the British king. The terms of those charters established the basic framework of law through which colonies and provinces began to develop their different forms of governance.
Rhode Island appears to be an exception to the foregoing scenario because it was founded, in part, by Roger Williams after he had been exiled from the Massachusetts Bay Colony as a result of his religious ideas and, then, purchased some land from the Narragansett Indian tribe – a land which he named “Providence”. Later on, however, there were a number of charters including the Royal Charter of 1663 which constituted King Charles II’s recognition of the Colony of Rhode Island and Providence Plantation, and this charter served as the constitution for Rhode Island until 1843.
Both prior to, as well as after, the collective declaration of independence of the thirteen colonies/provinces/states, there were a variety of legal systems running parallel to either the charter-sanctioned and/or colony/province/state sanctioned forms of governance. These legal systems were largely variations on a theme revolving about a common law approach to many aspects of everyday life. Such systems of jurisprudence dealt with a variety of civil matters involving issues of tort, contractual disputes, real estate transactions, and the like.
Common law tended to give expression to a judge’s best effort to forge a path of justice through the contingencies of current circumstances as evaluated through the filters of a voluminous set of previously established precedents generated over the years by judicial predecessors, together with the current judge’s own assessment of an on-going situation. As such, the nature of law was pretty much up to the sensibilities and capacities of a given judge.
The logical relationship between legal precedents and their relevancy to current circumstances was not always straightforward or justifiable. The logical character of a judge’s understanding of a given set of circumstances was not always straightforward or justifiable.
Nonetheless, the process of using a common law approach to settling various kinds of problems had a long history. As such, there was a certain inertial force of social practice at work in common law that, despite its problems, permitted it to continue on as a way of helping to regulate certain facets of the dynamics of social life.
Although even before declaring independence, many, if not all, of the American colonies/provinces possessed a more open and broader form of political participation than existed in Europe, there were still quite a few limitations concerning the nature of such participation. For instance, in order to vote, one needed to own property of a certain size and/or value ... an amount that tended to vary from place to place.
Moreover, for the most part, only white males who satisfied the property qualification were permitted to vote. Slaves, indentured servants, white males who did not own the necessary amount or value of property, and, for the most part, women were unable to vote. Although in early America women who owned sufficient property were entitled to vote, this arrangement changed along the way to ‘democracy’.
Even people who were qualified to vote were not necessarily permitted to vote in all matters. While some colonies/provinces permitted those who enjoyed the ability to exercise a vote to elect members of the ‘lower’ (read, ‘People’s’) house of government, they were not always permitted to vote for who would be the governor of a given colony or province -- although, for example, Rhode Island and Connecticut did allow this – nor were those who possessed the right to vote necessarily permitted to cast a ballot for who would be members of the ‘higher’ legislative body (read the ‘wealthy and powerful’) of a given colony/province.
To a certain extent, lower houses within a colony or province could, under some circumstances, impact the shape and nature of governance. Nonetheless, a great deal of the law within any given colony/province/state was a function of the charters, constitutions, governors, and upper houses that, for the most part, controlled what went on in their respective territories … including, quite frequently, what transpired in the court systems.
Charters and constitutions were not documents that were formulated by the generality of people. Rather, they were documents crafted by a select set of individuals from within the power elite and, as a result, there was a limited amount of input – if any at all – from those who resided outside the inner circles of power… even if such ‘outsiders’ possessed the right to vote.
Although the principles underlying certain kinds of rights had been well-established (albeit often ignored) since the time of Magna Carta – which was first proposed in 1215 A.D. and, then, subsequently modified toward the end of the thirteenth century – the realm of public policy (in other words, the principles governing the nature and character of public space) was generally controlled by the ruling power. Moreover, when there was a conflict between the pursuit of a given kind of public policy and the issue of rights, rights often tended to lose out.
The realities of colonial politics tended to be reflected, to some degree, in the voting behavior of early America. Even among those who were permitted to vote, actual voter participation ranged between 20 and 40%, with the norm leaning toward the lower value.
The first Continental Congress began operation in 1774. It consisted of delegates who, in one fashion or another, had been appointed by the various colonial/provincial governments, and, therefore, the delegates were not necessarily selected by those who were eligible to vote within any given province or colony.
In other words, if given the opportunity, the electorate may have voted for, or against, such individuals, but, for the most part, voters didn’t get to select who would run. Rather, candidates who stood for election were often representatives of this or that faction within the power elite.
The Articles of Confederation – officially known as the Articles of Confederation and Perpetual Union – was drafted by colonial/provincial delegates to the Continental Congress during the period between June 1776 and November 1777. The Articles were formally ratified by all thirteen states in 1781, and a great deal of the four year delay in the ratification process involved disputes over which colony/province would be entitled to certain territories.
Nevertheless, despite the absence of ratification, beginning in 1777 – that is, four years before ratification took place -- the Continental Congress assumed considerable authority with respect to a wide variety of policy areas involving the states. Among other things, the Congress created and provided for a military force, as well as established a military code of conduct. The Continental Congress also oversaw the issuing and regulating of fiat money, and it set various kinds of trade restrictions, as well as conducted diplomatic negotiations with various foreign countries.
Thus, for four years, the Continental Congress ran under the authority of the power elites that governed the 13 colonies/provinces/states. The ‘rule of law’, if one can call it that, which regulated national affairs was the result of arbitrarily generated arrangements by the power elite for proceeding in one way rather than another.
The ratification process for the Articles of Confederation did not involve the generality of people. That is, those people who were eligible to vote did not assemble to accept or reject the Articles of Confederation.
Instead, state assemblies gathered together and voted on the matter. These assembly members were individuals who, for the most part, had been elected by a small sub-set of the eligible voters.
The character of the colonial/provincial charters, the nature and contents of the colonial/provincial/state constitutions, the structure of the Articles of Confederation, and the common law legal systems all shared one thing in common. More specifically, they were not necessarily the expression of the general will of the people – even the will of those who could vote – but, instead, such processes were the creations of a number of limited, select groups of individuals who took it upon themselves to make decisions for everyone else.
Some might refer to the foregoing set of arrangements as an exercise in leadership. However, others might wish to refer to such a way of doing things as rooted in the need of some individuals to control other people and the circumstances of the lives of the latter people.
In each instance – from colonial/provincial charters, to the Articles of Confederation – there was no real justification for doing things in the way they were done. They were all arbitrary exercises of power – that is, things were done because they could be done in a certain way and because no one was permitted (or, generally, able) to act in a way that was contrary to what this or that set of individuals who belonged to the power elite had decided.
The policies that were enacted may have given expression to ‘good’ decisions or ‘bad’ ones. In either case, many, if not most, of the decisions and judgments of colonial/provincial authorities were arbitrary exercises of power.
In other words, such policies could not be justified independently of the judgment that led to a given decision. Therefore, those policies tended to be entirely self-serving with respect to the interests of the powers that be.
The arguments of power are always circular. They begin and end with the capacity of power (usually as a function of some form of coercive force) to do as it wishes quite independently of considerations of facts, reason, logic, or fairness.
Consequently, in such cases, the so-called ‘rule of law’ consisted in little more than a manifestation of the inclinations of power in one form or another. Assemblies who were elected by some of the people might have been able to place certain kinds of limits on what power did, or could do, but, for the most part, law was what the power elite said it was which meant that the proclamations by the power elite concerning what constituted law served as the only ‘justification’ for why such laws were to be considered authoritative and incumbent on people.
In light of the foregoing considerations, to claim that America was founded on the rule of law is somewhat misleading, if not disingenuous. The ‘rule of law’ is alluring only to the extent that it gives expression to principles that everyone can agree are fair and, therefore, independent of anyone’s capacity to compromise or undermine those principles.
Under the circumstances existing in colonial America and extending through the period following the Declaration of Independence and spilling over into the time of the Articles of Confederation (both before and after ratification), the rule of law in America was largely an artifact of power. Consequently, such a state of affairs offers no real rationale for why anyone should feel a sense of obligation or duty to accommodate this sort of ‘rule of law’.
Article XIII of the Articles of Confederation indicated how every state was obligated to operate in accordance with the provisions of that document. Furthermore, Article XIII also specified that the nature of the agreement outlined in the Articles can only be changed if, (a) the Continental Congress agrees to such alterations, and, (b), the states ratify such proposals.
Some people who believe in the precept that America was founded on the rule of law maintain that this notion should not be restricted just to the ratified Articles of Confederation but, as well, one needs to take into consideration the form of the Constitution that was developed in the Philadelphia Convention of 1787. However, there are a number of ways in which the emergence of the Constitution does not appear to abide by the provisions of the Articles of Confederation and, consequently, there is a sense in which the Constitution was an abrogation of the so-called ‘rule of law’ that preceded it.
While the Philadelphia Constitution may constitute a set of procedures that can be recognized as giving expression to a certain form of ‘rule of law’, the manner through which the Philadelphia Convention went about generating such a constitution was not itself done in accordance with any existing ‘rule of law’ – even an arbitrary one. Therefore, the meaning of the idea that ‘America is a country founded on the rule of law’ becomes somewhat murky.
The foregoing contention is likely to antagonize many people. So, let’s take a closer look at the Philadelphia Convention and the circumstances leading up to it.
Many, if not most, leaders in the 13 colonies/provinces tended to agree there were a variety of problems that plagued the Articles of Confederation. As noted previously, the Articles had been drafted by the First Continental Congress in 1776-1777 and were, then, ratified by the states in 1781.
They served as the first constitution of the newly formed confederation of states known as the United States of America. As such, the Articles of Confederation constituted a legal document in the sense that it was the set of agreed-upon arrangements by the power elite that was understood by those individuals to be binding on each of the 13 colonies/provinces.
Among the generally acknowledged problems inherent in the Articles of Confederation, there was an unresolved issue: How to raise money to pay off the considerable debt that had accumulated during the war for independence. The structural character of the Articles also made it difficult for the states to reach agreement in relation to a variety of issues ranging from: how to interact with foreign powers with a united voice, to: maintaining some form of military to defend against potential threats to the fledging nation by established powers such as: England, France, and Spain, not to mention different Indian tribes and nations. A further problem entailed by the Articles of Confederation concerned finding constructive ways to regulate the commerce of the 13 colonies/provinces … both among themselves and with the rest of the world.
Consequently, there was a general consensus among the leaders of the 13 colonies/provinces that something had to be done to solve the everyday economic and political problems facing America. Accordingly, the Continental Congress -- the recognized governmental authority of post-revolutionary America -- had authorized the participants in the Philadelphia Convention to revise, to a degree, the Articles of Confederation.
The idea for the Philadelphia Convention arose in an earlier convention that had met for three days in Annapolis during September 1786. The latter convention had been authorized by the Continental Congress – the national body responsible for implementing the various provisions of the Articles -- for the purpose of trying to resolve some of the generally recognized problems that were entailed by the existing form of governance.
However, only 12 individuals, representing just five states, showed up for the Annapolis Convention. Representatives from Rhode Island, Massachusetts, North Carolina, and New Hampshire who had been appointed by the respective states to attend the convention were not able to travel to Annapolis in a timely fashion, and, therefore, they missed the convention. Other states – notably, Georgia, Maryland, Connecticut, and South Carolina -- had not bothered to appoint or send any delegates to the Annapolis Convention.
Attendance was a common problem in the assemblies that gathered in post-Revolutionary America. This was true irrespective of whether these were in the form of gatherings of the Continental Congress or in the form of various conventions that were intended to address this or that difficulty which had been assigned by the Continental Congress.
The participants in the Annapolis Convention wrote a report and submitted it to the Continental Congress as well as to the governing leadership of the thirteen colonies/provinces. The report recommended that a further convention be held in Philadelphia the following year (1787) beginning in May.
The recommendation advanced in the Annapolis Convention report was accepted by the Continental Congress. Plans were set in motion for sending delegates from the 13 colonies/provinces to Philadelphia in 1787.
However, one should note that the 55 people who were to gather in Philadelphia in the summer of 1787 had received no authority from the Continental Congress to write a new constitution. Their delegated authority extended only to the task of revising the Articles of Confederation to better serve the confederation of states/colonies/provinces … especially in the areas of commerce and trade.
Now, one could engage in a Clintonesque-like parsing of words with respect to the precise meaning of the word “revise,” but the meaning of that term had been rendered in a fairly clear manner by the Continental Congress. For example, the official title of the Annapolis Convention which had taken place a year earlier was: ‘Meeting of the Commissioners to Remedy Defects of the Federal Government.’
The primary defect that the Annapolis Commissioners had been intended to address revolved around the various barriers which existed in relation to improving opportunities for trade and commerce among the 13 colonies/provinces. Since the Annapolis Convention had fizzled out, this same defect still needed to be resolved by the Commissioners during the next convention – the one in Philadelphia.
The task of the Commissioners was to find remedies for existing problems within the context of a previously agreed-upon, ratified, and legally-acknowledged way of doing things. Nonetheless, the delegates to the Philadelphia Convention decided very early on to disregard the limits which had been placed on their authority by the national government – a government that had been ratified by the colonies/provinces some six years earlier.
The members of the Philadelphia Convention wanted to scrap the Articles of Confederation and, to replace those articles with a new constitutional arrangement. Some people might be inclined to refer to such a process as an act of treason.
As pointed out earlier, the Articles of Confederation had been written as a legal document. Nevertheless, the delegates to the Philadelphia Convention appeared to believe they were justified in dispensing with that supposedly legally binding set of arrangements and, as well, they seemed to believe they were free to ignore the source of legitimate authority that had sanctioned the Philadelphia Convention and the Annapolis Convention before it – namely, the Continental Congress.
Consequently, the Philadelphia Convention of 1787 was the opening salvo in what amounted to a coup d'état. Moreover, like most efforts to overthrow a government, the Philadelphia Convention was conceived in secrecy since no one was permitted into the Philadelphia Convention other than the 55 delegates.
Whatever the sincerity and goodness of their intentions might have been, the 55 delegates to the Philadelphia Convention surely understood that the exercise in which they were engaged was not legally sanctioned and went contrary to the both the letter and the spirit of the existing framework of government. Why else would they have decided to shroud the ongoing proceedings in secrecy?
Before the Philadelphia Convention came to a conclusion in mid-September of 1787, 16 of the original 55 delegates withdrew from the process. Some of these departures were due to economic hardship since the delegates were paying their own expenses and some of them were running low on money and needed to return home and attend to their businesses, but some of the people – including John Lansing, Jr. and Robert Yates of New York, as well as Luther Martin of Maryland -- left the convention because they were opposed to what was transpiring in the Philadelphia Convention.
One might like to spin the Philadelphia Convention in a variety of ways. For example, one could argue that most of the delegates at the convention understood all too well how the Articles of Confederation were simply not up to the challenge of effectively regulating a national government, and, consequently, those delegates were just putting a flawed form of government out of its misery … a sort of mercy killing.
However, if this is the case, then perhaps an appropriate analogy would be a case in which a person takes it upon himself or herself to secretly arrange for someone else to die without asking the permission of the object of the exercise if it is okay to proceed on with the termination process. There is something very unethical and underhanded about this sort of an approach to things.
If the Philadelphia delegates wanted to change the game plan of the Convention, why didn’t they seek authorization from the very source of legitimacy and authority under whose auspices it was meeting? There is a very dark blemish of duplicity hovering around the actions of people who seek to leverage the authority that has been extended to them in order to undermine that same authority.
What is all the more shocking about the actions of the delegates of the Philadelphia Convention is that they were proponents of a moral philosophy known as republicanism that was supposed to constructively and ethically regulate how one set of people (the members of government) should interact with another group of individuals (the citizens) within the domain of public space where citizens and representatives of government met. The latter individuals were supposed to demonstrate qualities such as: objectivity, disinterestedness, honesty, tolerance, transparency, respect for others, integrity, empathy, loyalty, duty, rationality, and fairness.
Supposedly, the real driving force underlying the revolutionary spirit that was intended to change the game of governance in America was the philosophy of republicanism. Republicanism was a conceptual child of the Enlightenment, and that theoretical framework was believed by many leaders in early America to be capable of taking the country in a totally new direction from what had been observed in other parts of the world with respect to the conduct of governance.
The ‘Framers of the Constitution’ considered republicanism to be so vital to the possibility of good governance that the principle was enshrined in the document that arose out of the Philadelphia Convention. Article IV. Section 4 of the Constitution guarantees all of the states a republican form of government.
Yet, the very first act of those who ‘framed’ the Constitution was to conduct themselves in a totally un-republican manner. They did not exhibit qualities of: transparency, disinterestedness, respect for others, loyalty, objectivity, faithfulness to duty, honesty, objectivity, fairness, or integrity … all qualities that were held in esteem by practitioners of the philosophy of republicanism.
According to the philosophy of republicanism, the only reason that the people will trust the representatives of government is if the latter operate in an ethical manner. Nonetheless, there is a very real sense in which there was a sizable component of ethically problematic behavior at the heart of the Philadelphia Convention.
So, the question arises: Why should anyone trust what is generated through such a tainted process. This was a process that was, in many ways, antithetical to the principles of the very same republicanism philosophy that was supposedly shaping the future form of governance -- the ‘new world order’ of that day – in the form of a constitution that had not been asked for, and which had not been legally sanctioned by, the existing government?
The decision to embark on the development of a new document of governance to replace the Articles of Confederation was not, strictly speaking, the result of a discussion which took place within the Philadelphia Convention. To be sure, the assembled members did begin to explore such an idea once it had been introduced, but the possibility of dispensing with the Articles of Confederation and replacing them with a new constitutional document had been developed prior to the convention.
In consultation with other attendees from Virginia, James Madison had drawn up a draft of his ‘Virginia Plan’ for a new constitution before the convention began. Writing such a plan was one of the reasons why he had travelled to Philadelphia a few days earlier than the proposed starting date for launching the convention. He wanted to have a document in hand to present to the delegates should they agree during the Convention that the time had come to consider jettisoning the Articles of Confederation.
Another indication that a coup d’état, of sorts, was in the air had to do with the pressure that a number of individuals (chief among them was Edmund Randolph, Governor of Virginia) placed on George Washington to attend the convention. Apparently, such people wanted to use the popularity and reputation of Washington to lend credibility and authoritativeness to the Philadelphia proceedings.
If the convention were intended to be nothing more than an exercise in attempting to remedy a defect in the Articles of Confederation, Washington’s presence would not have been necessary. After all, the convention already enjoyed complete legitimacy through the authority of the Continental Congress which had given its blessings (within limits) to the convention’s revisionary purpose, and, consequently, Washington’s attendance would not add anything to such legitimacy.
Washington hadn’t been invited to the Annapolis Convention. Yet, although on the surface the purpose of the Philadelphia Convention was, more or less, the same as the Annapolis Convention, great importance was attached by various “friends” of Washington (e.g., Madison, Randolph, and other members of the Virginia delegation) to ensure his presence in Philadelphia.
Washington’s participation in the Philadelphia event could serve a dynamic purpose if the function of the convention was to introduce something entirely new in the way of a constitution – something that had not been sanctioned by the existing national authority. Under such circumstances, Washington’s reputation for honor, integrity, and character would serve as a countervailing force to counteract the illegal character of that convention’s actual activities.
Washington enjoyed such respect and admiration amongst the generality of Americans that the mere association of his name with the convention might tend to quell any concern that people might have concerning the legitimacy of what was taking place at the convention or in relation to any results that might issue from such an assembly. His reputation was capable of transforming a sow’s ear into a silk purse.
After the war, Washington had retired to his Mount Vernon farm. He had earned international acclaim for doing so since the precedent up until then had been for victorious generals to translate such propitious historical moments into the currency of power through which the individual would assume some position, or other, of authority.
In a very public manner on December 23, 1783, Washington surrendered his sword to Congress. Six months previously, he had issued a letter to the 13 state/colonial/provincial governments which promised that henceforth he would not take: “any share in public business”.
Through both actions, he indicated he was retiring from military and public life. A third related action – namely, resigning from the vestry in his area – was intended to sever his final link with public service.
He stipulated that his retirement would be a legacy for his country. It was meant to be a heroic, selfless act unconnected to any sort of advancement of his own interests.
Approximately three years later, those who were seeking to induce Washington to return to public life by way of the Philadelphia Convention were, in effect, asking him to go back on his word concerning the issue of retirement. When the topic of attending the convention was first broached to him, Washington was reluctant to go to Philadelphia precisely because he was very concerned about how participating in the convention would affect his reputation as, among other things, a man of honor … a man of integrity … a man of his word.
As was the case in many instances involving Washington’s agonizing over how this or that action might be evaluated by others and, consequently, how this or that action would affect his reputation in the eyes of such people, the Philadelphia question was resolved around issues of perception rather than actual facts. More specifically, Washington was persuaded by himself and several other confidants that it was better to be seen as someone who would risk his reputation – by going back on his word concerning retirement -- in order to ensure that the national government did not fail than it was to be seen as someone who kept his word concerning retirement because he wanted the national government to fail so that he could institute a military takeover of the country.
The struggle concerning reputation was entirely in the mind of Washington. He had little, or no, information concerning what people across America might be thinking about him and the Philadelphia convention.
He concerns about reputation were an exercise in speculation and imagination. He generated various fictitious scenarios in his mind concerning the matter, and, then, he began to weigh the pros and cons of those invented possibilities.
If Washington actually believed that people thought that he would keep his word about retirement in order to help push the national government toward failure which, in turn, would open up the possibility of a military overthrow of the government led by him, then, really, his word was worth nothing. If people actually were willing to think such things about Washington, then, his reputation was something of a will-o’-the-wisp and not at all substantive in character.
There was something of a straw-dog argument quality to the ‘reasoning’ about reputation that had been dredged up from some corner of Washington’s imagination. His argument was largely devoid of logic.
If Washington was a man of his word, then why was he entertaining going to Philadelphia at all? If he was sincere when he surrendered his sword to Congress and wrote a letter to the 13 states, then why was he preoccupying himself with chimerical possibilities concerning what some other mythical individuals might think … possibilities that he knew were not true?
Moreover, one might raise the question of just what Washington thought he could bring to the table in Philadelphia that would help the national government to succeed rather than fail. Washington was not much of a thinker or theorist, nor was he much of a talker, so, why was Washington led to believe that his presence at the Philadelphia convention was very necessary?
Young America had its share of problems. However, every country has such difficulties.
What led Washington to believe that the country would fail if the Philadelphia Convention was not successful in its assignment? Had he been given the understanding that the convention would not be about just revising the Articles of Confederation but, rather, would be about replacing them?
Was he aware of what Madison, Hamilton, and a few others had in mind? Or, was he merely being manipulated -- through his excessive concern with the status of his reputation in the eyes of others – so that his reputation could be exploited in order to lend an aura of legitimacy to that which was, in reality, illegitimate?
If Washington did not have some intimation that the Philadelphia Convention was going to be more than advertised, then why didn’t he leave the convention immediately upon discovering that a number of the participants had their own ideas about the real purpose of the assembly? Washington was a military man, and, consequently, he supposedly believed in the chain of command. Yet, there he was in Philadelphia about to become involved neck-deep in a process that was actively defying the nature of the authorization that had been extended by the Continental Congress.
Prior to the convention, Washington had been obsessively preoccupied with whether, or not, others might see him as someone who was conspiring to overthrow the United States if he failed to go to the Convention. However, at the convention, he was engaged in precisely such an activity. Unfortunately, Washington did not leave the proceedings, nor did he resign from serving as president for the gathering … a position to which he had been appointed toward the beginning of the convention.
It seems that Washington wanted to both keep his cake and eat it, too. On the one hand, he wanted to maintain his reputation as a latter-day Cincinnatus who turned his back on the spoils associated with the possession of military glory and victory in order to return to the private life of a farmer.
On the other hand, Washington desperately sought for an argument that would justify – at least in his mind -- going back on a promise he had given to the country in 1783. In the process he would return to the realm of “public business” that he had renounced forever three years earlier.
In a letter to President Washington in 1796, Tom Paine closed his scathing attack on Washington with the following words: “The world will be puzzled to decide whether you are an apostate or an impostor; whether you have abandoned good principles, or whether you ever had any.” Paine’s letter was a critique of Washington’s time as president, including the manner in which Washington had left Paine to rot in a foreign prison and never lifted a finger to help a person – i.e., Paine -- who Washington, himself, acknowledged to be one of the architects of American independence and whose work – Common Sense – Washington had encourage his soldiers to read during the war.
Paine’s words were written some nine years after the Philadelphia Convention occurred. However, the criticism expressed through those words seems to be appropriate in relation to Washington’s participation in the 1787 assembly. Where were Washington’s principles?
He had given his word to the Continental Congress, the thirteen states, and his local vestry, and, then, he dissembled his way to reneging on his promise to the country. In addition, he claimed he was deeply concerned that if he didn’t attend the Philadelphia convention people might think he wanted the national government to fail so that there could be some sort of subsequent overthrow of the Confederation. Nevertheless, his attendance at, and role in, the Philadelphia meetings seems to have rendered him immune to such considerations.
One of the concerns of the participants in the Philadelphia Convention revolved around the past difficulties of getting the members of the Continental Congress to agree on anything. As a result, nothing much got accomplished.
This issue could have been among the problems that the Philadelphia Convention had been authorized to address. Therefore, someone might wish to argue that it was precisely because of such symptoms of ineffective government that led the delegates at the1787 convention to act as they did.
For example, perhaps, this is why they constructed a wall of secrecy around their proceedings. If people from the outside were to find out that a whole new constitution was being developed and that, as a result, the Articles of Confederation would become a thing of the past, then endless wrangling would take place, and nothing would be accomplished.
One might continue on with this line of argument and claim that, with the best of intentions, the assembled delegates decided to take the bull by the horns and do what was necessary from a practical point of view. If the country were in dire need of effective governance, and if the Articles of Confederation were preventing this, then, the Articles should be eliminated and something new had to be introduced.
Therefore, someone might wish to argue that the delegates may have thought that if they were to propose the foregoing idea – that is, the notion of a new constitution -- in an unarticulated form to the Continental Congress and the state legislators, then such a proposal likely would be rejected. Consequently, it would be better – or, so, such an argument might go -- to proceed on in secrecy and produce a working plan for bringing about the dissolution of the Articles of Confederation before engaging the national and state governments.
From the perspective of practicality, the foregoing possibility sounds plausible. From the perspective of the idea of democracy, there are problems with such an argument.
No matter what the quality of sincerity and good intentions might be of the appointed delegates to a convention that has been sanctioned by a legally authorized body, those delegates had a duty of care to the people who appointed them … a duty of care which concerns the fiduciary responsibility of the delegates to act in accordance with the power that has been entrusted to them. Under such circumstances, delegates are not free to decide matters as they please.
Consequently, by proceeding in the way they did, the delegates to the Philadelphia Convention of 1787 set a terrible precedent. In effect, their argument is as follows: As long as one believes in what one is doing, then it is okay to act in ways that dismiss one’s fiduciary responsibility to the authority which sanctions one’s supposed purpose for gathering together.
As a result, over the past several hundred years in America, many, many groups of people have assembled together in secrecy under the auspices of delegated government fiduciary responsibility and betrayed their assigned duties of care to the people of the United States in a variety of ways. Even if one extends the benefit of a doubt to such individuals and accepts their usual claims that they were only seeking to enhance the general welfare of all Americans – a benefit that I’m not at all convinced is warranted – nevertheless, such a wild-west modality of governance is not acceptable.
People have a right to know what their form of governance is up to and whether, or not, such activity can be justified. The participants in the Philadelphia Convention were, in effect, saying that people have no right to know, shape, or question what is going on in such assemblies at the time those activities are taking place. Furthermore, the members of the Philadelphia Convention were also saying that the issue of fiduciary responsibility is irrelevant to the processes of governance.
Over the years, all too many representatives of government have followed the precedent set down by the participants of the 1787 Philadelphia Convention. Whatever ‘good’ might have ensued from the constitution-making process that occurred at that convention, this has been more than off-set and undermined by the, presumably, well-intentioned dismissal of fiduciary responsibility which that convention set in motion.
In addition to the foregoing problem, one might also note that there was a concerted theme of arrogance that colored much of what transpired during the Philadelphia Convention. Here was a group of people who believed that they, alone, knew what was best for America and took steps to ensure that no one would interfere with their machinations.
Apparently, from the perspective of the signatories of the Philadelphia Convention, neither the Continental Congress, nor the state legislators, nor the people were considered worthy of participating in the process of constructing a constitution. Apparently, from the heady heights of understanding and wisdom of the Philadelphia Convention participants, no one but they were considered to have anything of value to contribute to such an undertaking.
They proved as much by the manner in which, following the Philadelphia Convention, they insisted that the people of America – or at least those who were permitted to vote – must accept or reject the Constitution-as-written. All talk of amending the Constitution was discouraged, suppressed, resisted, and/or dismissed throughout the entire ratification process.
One also wonders about the ‘rationality’ of the thinking of the attendees of the Philadelphia Convention. If the reason they were proceeding in secrecy was because of their collective frustrations with respect to getting any kind of agreement within the Continental Congress and/or the state legislatures in relation to much of anything, then what made them believe that their form of federalism would be capable of generating agreement among the people or state legislatures?
In other words, from one perspective, the ratification vote from the different states might seem (and I will have more to say on this issue in a subsequent posting) to justify the nature of the commitment of the Philadelphia delegates to their mode of constructing a new constitution. Nonetheless, one wonders why -- if they were banking on inducing people to go along with their ideas after the Philadelphia Convention -- they were apparently so resistant to the idea of entertaining the possibility that the same thing might have been accomplished in a much more direct, open, and inclusive way than in the manner through which the Philadelphia Convention conducted its affairs?
At some point, the delegates to the Philadelphia Convention knew that they were going to have to face a public – whether in the form of the Continental Congress, the state legislatures, and/or the general citizenry – that was very much divided in its ideas concerning how to realize the potential of democracy. Why did those delegates choose to do things in such an underhanded fashion, when, perhaps, the same thing could have been accomplished in a much more ethical fashion?
It took a little less than a year from the end of the Philadelphia Convention for enough states to ratify the Constitution for it to be capable of replacing the Articles of Confederation. It took another three years, or so, to introduce, pass, and ratify ten amendments of the original constitutional document.
Couldn’t one argue that a much better constitution might have been constructed if one took these three, or so, years and simply went about things in a far more transparent, inclusive, and ethical manner? Indeed, what evidence could be cited which would demonstrate that such a possibility could not have been realized?
We will never know, because the delegates to the Philadelphia Convention robbed Americans of such an opportunity. Instead, they decided to act in an illegal, secretive manner and impose their result on America with a ‘this or nothing’ ultimatum.
In fact, what the delegates to the Philadelphia Convention engaged in – and this was continued throughout the ratification process – was the politics of power. They took the authority which had been given to them and leveraged that authority to generate a form of political power that was used for purposes other than the delegated authority was originally intended to serve.
The delegates of the Philadelphia Convention were ‘Framers’ of a Constitution’, but that frame reflects the ugliness of the politics of power underlying, surrounding, and directing that framing process. Nothing matters to the purveyors of political power except their own agenda.
Politics has acquired such an unsavory reputation precisely because of the sort of backroom, underhanded activities that were engaged in by most of the delegates to the Philadelphia Convention. They were not statesmen, but, instead, they were politicians working behind closed doors to develop a system that could be foisted onto the public through a sort of fait accompli.
There are many ways in which one could validate the contention in the foregoing paragraph – some of which already have been outlined – but one only has to look to the closing ‘article’ of the Philadelphia Constitution to understand the nature of the misleading framing process that was being done by the ‘Framers’. More specifically, after setting forth the rule that specified what would be necessary for the Philadelphia Constitution to be adopted (nine of the 13 states must ratify it), one finds the following: “Done in convention by the unanimous consent of the states present…”
The foregoing segment of Article VII gives the impression that there was complete, unanimous agreement among the participants in the Philadelphia Convention. But, this was not the case since George Mason and Governor Edmund Randolph of Virginia, as well as Elbridge Gerry of Massachusetts had refused to sign-off on the Philadelphia Constitution.
Furthermore, the participants had not come together as states but as individuals from various states who, supposedly, were attending to issues that had been authorized by the Continental Congress. In fact, even if one were to argue that the participants in the Philadelphia Convention were members of state delegation, one could not claim, as Article VII did, that there had been “unanimous consent of the states present.”
For instance, there were two signatories to the Philadelphia Constitution who were from Virginia – namely, John Blair and James Madison. However, there also were two participants in the Philadelphia Convention who refused to sign-off on the document – George Mason and Governor Edmund Randolph.
George Washington also was from Virginia. Yet, he did not sign as part of the Virginia state delegation but, instead, signed as President of the Convention and as a deputy from Virginia.
Whether this is a case of double-dipping or merely an effort to leverage Washington’s popularity as a means of lending credibility to a thoroughly illegal process, it helps to muddle the situation. In a sense, Virginia was not unanimous in its consent with respect to the Philadelphia Convention, and the phrasing of Article VII hides this fact.
The same could also be said in relation to Massachusetts since Elbridge Gerry had refused to sign the Philadelphia Constitution. While two out of the three people from Massachusetts (Nathaniel Gorham and Rufus King) were signatories to the Philadelphia Convention, the vote was not unanimous.
Maryland could also be added to the foregoing list of states. Luther Martin had left the Philadelphia Convention due to the inflexible character of the way in which many of the delegates were refusing to consider alternative possibilities to what they were proposing. Therefore, the vote of delegates from Maryland was not a matter of unanimous consent.
Of course, one could argue that the intended sense of the phrase: “unanimous consent of the states present” was only meant to indicate that when the votes among the delegates from the different states were tallied, all the states present had – by majority vote – unanimously consented to the Philadelphia Convention. Nonetheless, the phrasing of Article VII was ambiguous in meaning.
Although copies of the Constitution were distributed – via newspapers and pamphlets -- to people during the ratification process, many people would never learn about the real story underlying the phrase “the unanimous consent of the states present” and would be “free” to conclude that everyone present at the Philadelphia Convention had unanimously consented to the document. The ambiguous phrasing of Article VII was an especially important issue since those who were in favor of ratifying the Philadelphia Convention expended a great deal of effort during the ratification process to hide from the public any criticism of the Philadelphia Constitution … let alone that there were people who actually had participated in the convention who were critical of the document produced through that assembly.
Let’s, for the moment, give the signatories to the Philadelphia Constitution the benefit of the doubt and assume that the ambiguous phrasing of Article VII was merely an unintended oversight. Extending such a benefit of doubt is somewhat problematic because the people who wrote the Constitution were ‘wordsmiths’ who were very careful about language and the attendant meanings that might be associated with one sort of phrasing for an idea rather than some other wording arrangement.
For example, the phrase “the states present” is a euphemism for the fact that Rhode Island had not sent any delegates to the Philadelphia Convention. By saying things in the foregoing manner, the authors of the Philadelphia Convention could say something that was true while deflecting attention away from the inconvenient truth that Rhode Island was not at the Philadelphia Convention and, therefore, for whatever reason was not in support of that convention.
The Articles of Confederation indicated that all 13 states had to sign off on proposed changes to the legal arrangement – i.e., the Articles themselves -- that had been ratified by all 13 states. Not only had the signatories to the Philadelphia Convention participated in a process that had not been authorized by the Continental Congress, but, as well, given that 13 states had to agree to any proposed changes, there had not even been a quorum at the convention in Philadelphia … only 12 states showed up, not the necessary 13.
Therefore, in effect, phrasing Article VII to read: “the states present”, was actually intended to hide the fact that the Philadelphia Constitution shouldn’t have been forwarded to either the Continental Congress or the state legislatures. Under the Articles of Confederation, Rhode Island had the right not to participate in such proceedings and, thereby, deny the Philadelphia Convention the quorum it needed to propose changes to the Articles, but, instead, the Founders/Framers decided to deny Rhode Island its rights and sweep such a denial under the phrase -- ”the states present.”
One might, of course, try to argue that the Philadelphia Convention was not really a ratification meeting of the states, and, therefore, under the Articles of Confederation, Rhode Island didn’t have any rights with respect to the Philadelphia Convention. However, if this is the case, then why are the authors bothering to say in Article VII of the Philadelphia Constitution that that document was the “unanimous consent of the states present” … something that was quite misleading – intentionally so, I believe -- in several senses.
Notwithstanding all of the foregoing considerations, the case of New York pushes the problem beyond the – at best -- ambiguous nature of the phrasing in Article VII. The lone signatory to the Philadelphia Convention from New York was Alexander Hamilton. Yet, Hamilton was not the only person from New York who – up to a certain point – had participated in the Philadelphia Convention.
New Yorkers Robert Yates and John Lansing, Jr. had attended that convention, but they left it before those proceedings had concluded because the two individuals were not in agreement with what was taking place in Philadelphia. Therefore, once again, irrespective of whether one is talking in terms of individuals or state delegations, one really can’t justifiably count New York as a state that should form part of a “unanimous consent of the states present” since there were more delegates from New York who were against what was transpiring in Philadelphia than there were participants from New York who were in favor of what was occurring in that city in the summer of 1787.
Whereas in the case of Virginia, Massachusetts, and Maryland, one might be able to plausibly argue that the phrase “unanimous consent of the states present” contained an unfortunate, but unintended, ambiguity that conceivably might have misled some people during the ratification process, the case of New York State is different. The majority of the delegates to the Philadelphia Convention who were from New York were not signatories to the Constitution, and, therefore, what is said in Article VII – namely, that the Constitution was “done in convention by unanimous consent of the states present” – is simply not true.
John Lansing, Jr. and Robert Yates had voted on the proceedings when they left the Philadelphia Convention and returned to New York. Hamilton had been outvoted, and, yet, New York was counted as part of the unanimous consensus of states that had endorsed the Philadelphia Constitution.
Someone might wish to argue that one can hardly count the votes of people who were not present when the final document was signed. The response to such a possibility is: Why not?
If the participants in the Philadelphia Convention were there as individuals, then, it is quite misleading to speak in terms of the “unanimous consent of the states present.” The final tally should have been clearly stated as: 39 for; six against (Mason, Gerry, Randolph, Yates, Lansing, and Martin), and ten unknown (additional people who left the Philadelphia Convention early and, ostensibly, did so because of financial circumstances but who also might have been unhappy with what was taking place in Philadelphia.
If, on the other hand, the participants at the Philadelphia convention were there as state delegations, then not only had the conditions of quorum been ignored (Rhode Island was absent), but, as well, when one tallied the votes for each of the state delegations, it was clear that the majority of New York delegates had voted against the proceedings of the Philadelphia Convention.
Lansing and Yates demonstrated their continuing opposition to the Philadelphia Convention through their active role in the New York State ratification convention. So, why weren’t their votes counted when the whole Philadelphia Convention knew that they were unhappy with the proceedings and refused to participate any longer?
Perhaps, there is another ambiguity – again entirely unintended, I’m sure --inherent in the phrasing of Article VII. In other words, when the authors of the Philadelphia Constitution spoke of the “unanimous consent of the states present” they were referring to the members of the state delegations who were present at the time when the Philadelphia Constitution was signed, and since Hamilton was the lone member of the New York State delegation present at that time, then, ipso facto, New York was part of the unanimous consent of the states present.
Apparently, 39 members of the Philadelphia Convention were making it up as they went along. Everything they were doing was entirely arbitrary and could not be justified through the principles of republican philosophy or any form of moral decency.
Rhode Island was denied its rights under the Articles of Confederation. The position of people who indicated they did not consent to what was going on in Philadelphia were denied a voice -- and this was true not only with respect to people like Lansing and Yates from New York, as well as Luther from Maryland, but, as well, the Philadelphia Constitution did not even mention the three people who were present until the bitter end but were opposed to that document.
All of the foregoing arbitrariness and questionable ethics was hidden beneath the phrase: “the unanimous consent of the states present.” The Philadelphia Convention was an exercise in political management by people like James Madison and Alexander Hamilton, and the wording of the Philadelphia Constitution was an exercise in political management – i.e., the way of power – and nowhere is this fact more clear than in the wording of Article VII of that document.
The authors of the Philadelphia Constitution were hiding facts from the world outside the hall where they were assembling. The facts which were being hidden indicated that the opinions surrounding the Philadelphia Convention were not really a matter of unanimous consent. These facts were being hidden because they had the potential to create problems with respect to the intention of the signatories to the Philadelphia Constitution to politically manage the proposed ratification conventions in each of the states.
The Philadelphia Convention and Constitution were not wonderful examples of democracy at its best. Rather, they gave expression to the way of power which seeks various means through which to insert itself into the lives of people on conditions that are favorable to the way of power.
When the authors of the Philadelphia Constitution wrote Article VII of that document, they knew what they doing. The Framers of the Constitution did what ‘Framers’ do best … they framed things in a manner that advanced their cause.
The Framers intended to hide the full truth about the Philadelphia Convention from the American public – knowing that most Americans would never come to learn the truth about what went on in Philadelphia until, if ever, much, much later. As a result they had worded things in Article VII so that the likelihood would be minimal that the actual nature of the events in Philadelphia would be able to negatively affect how most people might think about the Philadelphia Convention and the document it produced.
One should note that the letter which accompanied a copy of the Philadelphia Constitution to the Continental Congress, as well as the copies of the proposed constitution that were sent to the state legislatures (and was printed along with the Constitution in many newspapers and pamphlets during the process of ratification), does not mention or allude to the existence of substantial dissent with respect to the Philadelphia proceedings. What he aforementioned letter does allude to is the possibility that not everyone will necessarily be in favor of what the Philadelphia Convention had done but a certain amount of such disagreement was to be expected (but if this so, then, their letter would have been a perfect time to note that there had been such disagreement in Philadelphia).
The rule of law was nowhere in evidence in the Philadelphia Convention, and, yet, the 39 signatories to the Philadelphia Constitution wanted that document to become the law of the land. In other words, that document was not rooted in a justifiable process – legal or otherwise -- but, rather, the ‘Framers of the Constitution’ wanted to declare what the law would be even as they couched their declarations in the guise of something which, supposedly, would derive its legality from the ratification vote of ‘We the People’.
On the other hand, what was in evidence during the Philadelphia Convention was the way of power … that is, decisions were made that were largely arbitrary and could not be justified in any manner that was independent of the social dynamics taking place within that convention … and could not be justified even in terms of their own self-professed commitment to the principles of republicanism.
Historical spinmeisters might wish to hide or airbrush away the flaws in the picture to which the Philadelphia Convention gives expression, but this, too, is part of the politics of power. People are fed a representation of historical reality which is skewed and distorted, yet, they are induced to believe that such a framing is the truth of things.
Although it is a case of counterfactual thinking, one wonders what would have happened at the Philadelphia gathering if certain people who were not present at that convention actually had attended those proceedings. For example, Tom Paine, Thomas Jefferson, Samuel Adams, John Adams, Patrick Henry, and William Findley did not participate in the Philadelphia Convention.
John Adams and Thomas Jefferson were in Europe acting on behalf of the American government at the time of the convention. Samuel Adams was ill.
Patrick Henry, a Virginian, had been invited to Philadelphia but refused the invitation because he said that he smelled the odor of monarchy emanating from the proposed convention – a very prescient intuition as it turns out. William Findley, who was from Pennsylvania, also was invited, but he wanted to be paid for attending the meetings and when such payment was not forthcoming, he decided to stay home.
Tom Paine had been invited to the convention, as well. However, Paine had given away most all of the proceeds he had received for selling more than 100,000 copies of Common Sense – a commercial success unheard of for publications during those times – to the war effort, and, therefore was in a precarious financial position.
Despite a few government jobs here and there, along with some gifts of money and land from the states of New York and Pennsylvania, as well as from the Continental Congress, in recognition of, and appreciation for, his efforts on behalf of American independence, Paine was largely unemployed and penniless in 1787, the year of the Philadelphia Convention.
During 1787, Paine had been working on bridge designs. Consequently, he went to Europe to try to generate some revenue in relation to those ideas. His financial condition rendered him unable to go to Philadelphia, and, perhaps, even if he had been solvent, he might not have been inclined to attend sessions that, supposedly, were only about tying to remedy some defects of the national government.
In any event, Jefferson, Paine, Henry, Samuel Adams, Findley, and John Adams were not people to remain quiet about what they were thinking. With the possible exception of John Adams, all of the foregoing individuals likely would have been quite vocal in their opposition to the federal form of government that was being constructed in Philadelphia.
William Findley, Patrick Henry, and Samuel Adams demonstrated as much during the ratification debates that took place in their respective states (Pennsylvania, Virginia, and Massachusetts) in the several years following the Philadelphia Convention. They were all in strong opposition to the federalist plan for government.
Tom Paine proved his willingness to be outspoken during the French Revolution -- until he was imprisoned for his opposition to the reign of terror in the early 1790s when he criticized the newly formed government’s abuse of power against the so-called enemies of the French people. In addition, Thomas Jefferson showed his willingness to stand in opposition to the excesses of federalism during the Alien and Sedition Act crisis in the administration of President John Adams.
If Jefferson, Findley, Henry, Paine, Samuel Adams – and, possibly, even John Adams -- had been able to add their voices to those of George Mason, Elbridge Gerry, and Edmund Randolph – the lone dissenters to the signatories of the Philadelphia Constitutional document – as well as those of the individuals (such as John Lansing, Jr., Robert Yates and Luther Martin) who had left the Philadelphia Convention in protest, the outcome of that convention might have been very, very different. Whether this difference would have manifested itself in the form of an alternative sort of constitutional arrangement from the Virginia Plan of Madison that became the backbone of the Philadelphia Convention, or whether this difference would have been in the form of a broken convention in which an agreement might not have been reached at all, or whether this difference might have involved some sort of criticism of the process and purpose of the convention and the manner in which it flouted its fiduciary responsibilities to the Continental Congress, is hard to say. However, the likelihood that ensuing events would have unfolded, more or less, in the same way if the aforementioned absentees had been present seems very low if not non-existent.
One could add the name of Richard Henry Lee, a member of the Continental Congress representing Virginia, to the foregoing list of individuals who were inclined to speak their minds about important issues but who did not attend the Philadelphia Convention. Lee, however, did speak up during the Virginia Ratification Convention when he recommended voting against accepting the Constitution without appropriate amendments.
The reason Lee did not attend the Philadelphia Convention was because he felt there was a conflict of interest between his duties as a member of the Continental Congress and the agenda of the Philadelphia Convention. Nonetheless, there were a number of other delegates to the Continental Congress who did participate in the Philadelphia Convention and who, apparently, saw no conflict of interest in their duties as members of the Continental Congress and the activities of the Philadelphia Convention … James Madison – the so-called father of the Constitution -- being a case in point.
Some people might wish to interpret the absence of such individuals – individuals who might have stood in the way of our present Constitution being written in its current form or stood in the way of its being written at all – as being a propitious sign indicating the presence of the Hand of Providence in relation to the formation of America. On the other hand, given all the wars, destruction, exploitation, oppression, and injustice which have been set in motion through the existence of the document in question, one is, perhaps, less certain that the absence of such individuals at the Philadelphia Convention is a sign of the presence of the Hand of Providence than one is inclined to suppose that the absence of the aforementioned individuals is an indication of the tragedy that often ensues when fiduciary responsibilities are dismissed and replaced by ambitions concerning political power.
One might speculate that James Madison may well have experienced a certain sense of ironic realization eleven years after the Philadelphia Convention when he found himself in opposition to the political forces his ‘creature’ had unleashed in the form of the Alien and Seditions Act during the late 1790s. After all, one of the primary motivations behind Madison’s coming up with his Virginia Plan for the federalized constitution was rooted in his fear concerning what he considered to be the unprincipled, chaotic political activity that was occurring in the Virginia Legislature, and, yet, as he subsequently discovered, his federalized constitution really was just as ineffective when it came to protecting people against the unprincipled and self-serving activity of politicians on the federal level as was true on the state level.
If Madison had been a little more critically reflective and a little less fear-driven in his efforts to solve a problem that, perhaps, he did not fully understand, he might have resisted the urge to father a constitution that had more genetic flaws in it than he and other participants in the Philadelphia Convention were aware. Apparently, Madison, like other participants in the Philadelphia Convention, was mesmerized by the surface gloss of his creation and, as a result, failed to see the potential for deviltry in the details of that creature.
Consequently, it is not inappropriate to ask in relation to the construction of the Constitution what the rule of law is on which the United States was supposedly founded. Such a question is not inappropriate to ask because the Constitution that arose out of the Philadelphia Convention was born due to an extended – four month -- process of transgressing against what the “legally” sanctioned government had authorized the Philadelphia Convention to do.
One can add to the foregoing questions and problems by taking a look at the conduct of the Continental Congress following the release of the Philadelphia Constitution in September 1787. The Congress was in session at the time when the Philadelphia Convention finally ceased operating, but effective governance was very difficult because nearly a third of the delegates who should have been attending to business through the Continental Congress in New York were, instead, in Philadelphia.
Surely, the delegates to the Continental Congress who were also attending the Philadelphia Convention had a conflict of interest. How could one effectively serve one body (the Continental Congress which operated in accordance with the Articles of Confederation) while participating in another body (the Philadelphia Convention) which was attempting to dissolve both the Continental Congress and its underlying Articles of Confederation.
One individual – William Pierce from Georgia – who was both a member of the Continental Congress as well as a delegate to the proceedings taking place in Philadelphia apparently believed that some issues were more important than either one of the two assemblies. He left the Philadelphia Convention to fight a duel in New York.
The choice which Pierce made following his duel is also interesting. Rather than return to the Philadelphia Convention, he decided to join the Continental Congress on July 1, 1787.
Conceivably, Pierce’s decision about where to go after his duel was, in its own way, connected to the philosophy of duels. After all, duels were about satisfying the 18th century’s rules governing the matter of honor, and, perhaps, Pierce felt that there was more honor in going to New York than returning to what was transpiring in Philadelphia.
On September 20, 1787, the Continental Congress received communication from Philadelphia in the form of the Constitution, a letter which accompanied that document, and a list of resolutions about how the signatories of the Philadelphia Constitution felt things should proceed from that point onward. The delegates to the Continental Congress began discussing the Philadelphia proposal on September 26, 1787.
Although those members of Congress who had been attending the Philadelphia Convention began to straggle in, there were several states that could not vote with respect to the proceedings of the Continental Congress because the necessary numbers of congressional representatives were not present. Thus, Rhode Island -- for which no representatives were present -- and Maryland -- for which only one person of the two representatives necessary for a voting quorum in any given state -- could not cast a vote under the provisions of the Articles of Confederation.
On September 15, 1787 -- five days prior to receipt of the Constitution by the Continental Congress – Rhode Island had written a letter to Congress explaining why it had sent no representatives either to: The Continental Congress or to the Philadelphia Convention. Among other things, the letter indicated that Rhode Island did not wish to be party to anything which sought to alter current arrangements of governance that might adversely affect the liberties of Americans.
The letter seems rather prescient. Somehow the leaders of that state had come to understand what was transpiring in Philadelphia and, as well, what might be forthcoming at the Continental Congress. That state had not earned the nickname: ‘Rogue Island,’ for nothing, and although most people used the nickname in a contemptuous and derisive manner, perhaps the state was seeking to do something apart from, and independent of, the way of power that was being manifested in Philadelphia and, perhaps soon, in New York.
There were a number of people who were in, or around, the Continental Congress assemblies who were in favor of adopting the Constitution. In concert with the resolutions that had accompanied the Constitution to New York, such individuals were pressuring Congress to pass the constitutional issue to the states so that the latter would be able to begin establish the procedures that would be necessary for implementing various ratification conventions.
Those sorts of pressure tactics were inappropriate for a number of reasons. First, the members of the Philadelphia Convention had no legal justification for expecting anyone to acquiesce to the provisions of Article VII in the Philadelphia Constitution which stated that an affirmative vote of nine states would be sufficient to release such states from the requirements of the Articles of Confederation … requirements which specified that all states must sign off on any changes to the Articles that had been ratified by all 13 states.
Who were the members of the Philadelphia Convention to dictate to the rest of the country how things should unfold? They had been operating illegally for nearly four months, and, now, they were proposing that the rest of the country operate illegally as well by violating the Articles of Confederation.
The pressure tactics of those who were in favor of adopting the Philadelphia Convention were also inappropriate because the current session of Congress consisted of two delegations who were not properly constituted according to the prevailing rules and, therefore, would not be able to vote in a matter which clearly would revise – and, then, some – the Articles of Confederation. All 13 states had to vote on anything which would revise those Articles in any way, but Rhode Island and Maryland would not be able to participate in a vote concerning such issues, and, therefore, according to the Articles of Confederation, any such vote would be invalid.
There were further problems. For example, Virginia’s delegation to the Continental Congress consisted of five people: Henry Lee, James Madison, William Grayson, Edward Carrington, and Richard Henry Lee (a cousin of Henry Lee).
Henry Lee and Edward Carrington were, despite some reservations, in favor of adopting the proposed constitution. On the other hand, Richard Henry Lee and William Grayson were opposed to adopting the proposed Constitution … at least as it currently was written.
Thus, the Virginia delegation was split. The deciding vote would be that of James Madison, the so-called father of the Philadelphia Constitution.
Carrington had written to Madison in Philadelphia telling his fellow representative of the Continental Congress that Madison needed to get back to New York quickly. Just as the Virginia delegation had fallen apart in the final week of the Philadelphia Convention, so too, the Virginia delegation at the Continental Congress in New York was split and could only be salvaged via Madison’s vote.
The person who had led the coup d’état in Philadelphia was needed to continue his rebellion in New York. In both instances, Madison would need to forget about his fiduciary responsibilities to the Articles of Confederation, and, consequently, in each instance Madison would need to ignore principles of the very philosophy of republicanism which he, along with other members of the Philadelphia Convention, had placed at the heart of the proposed constitution in Article IV, Section 4.
Accompanying the copy of the Philadelphia Constitution, there were resolutions outlining what the members of the Philadelphia Convention indicated should take place in the near future. Those resolutions stipulated that the Constitution should, first, be placed before the Continental Congress, and, then the proposed constitution should be forwarded for purposes of ratification by conventions in each of the 13 states consisting of delegates that had been selected in accordance with the decision of individual state legislatures.
The Philadelphia Convention had no legal authority to make the resolutions it did or to forward them on to the Continental Congress and the 13 state legislatures. Therefore, its resolutions were not binding on anyone – in fact, they were precisely the opposite of being legally binding because they arose through a process that had not been legally sanctioned.
On September 27, 1787 proposals concerning the Philadelphia Convention began to issue forth within the Continental Congress. For instance, although Richard Henry Lee was in opposition to the Philadelphia Constitution, he suggested that, perhaps, the Continental Congress could forward some sort of package to the states which indicated that the Philadelphia Constitution had been forged by delegates from 12 states (Rhode Island had no delegates in Philadelphia) so that the various states might consider that document. However, at the same time, Lee placed his suggestion concerning how the Continental Congress might proceed in a context which clearly indicated that Congress had no right to subvert the current state of affairs -- that had been specified in the Articles of Confederation -- by allowing nine states to be able to dissolve such an arrangement.
James Madison, Lee’s fellow representative in the Virginia delegation and the so-called father of the Philadelphia Constitution, rejected Lee’s idea. Madison claimed that any communication to the states that did not clearly indicate approval with respect to the Philadelphia document would imply disapproval, and Madison wanted the members of the Continental Congress to both adopt the Philadelphia Constitution as well as forward it to the states for the purposes of instituting ratification conventions.
Several other representatives to the Continental Congress who also had been delegates at the Philadelphia Convention – namely, Pierce Butler from South Carolina and William Samuel Johnson from Connecticut – argued that the Continental Congress needed to vote, yes or no, on the Constitution-as-written. Their argument was that the Philadelphia Convention was actually a Committee of the Continental Congress and, therefore, a yes or no vote was required.
What Johnson and Butler failed to point out was that whether, or not, one considered the Philadelphia Convention a Committee of the Continental Congress, that committee had conducted itself in an illegal fashion by transgressing against the authority that had been extended to it by Congress. On what basis should members of Congress be required to vote on a ‘report’ that had issued forth from an unsanctioned process?
Edward Carrington, another delegate from Virginia who was in favor of adopting the Philadelphia Constitution, proposed that the Continental Congress merely forward the Constitutional package to the states indicating that Congress was in favor of adopting the new constitution. Henry Lee, who also was from Virginia and who, like Carrington, was an advocate for the Philadelphia Constitution, objected to Carrington’s proposal and argued that one should not endorse something which had not been carefully considered line by line … in fact, Henry Lee wanted the Continental Congress to debate the document before deciding anything, and, in addition, Lee proposed that Congress should introduce amendments wherever they were deemed to be advisable.
At this point, three members of the Continental Congress who also had been delegates at the Philadelphia Convention – namely, William Samuel Johnson, James Madison, and Rufus King – all rejected such a proposal, claiming that Congress did not have the right to propose any amendments to the Philadelphia document. Madison based his objection to the Carrington proposal on the idea that the relationship between Congress and the Philadelphia Convention was akin to a bicameral form of legislature in which the Philadelphia Convention served as a second body in such a legislative arrangement.
Like William Samuel Johnson previously, Madison was ignoring the fact that the activities of the Philadelphia Convention had not been sanctioned by the Continental Congress. Furthermore, Madison, like Johnson, was just making things up on the fly since neither of their arguments were soundly constructed and, thereby, capable of justifying their claims concerning the nature of the alleged relationship between the Continental Congress and the Philadelphia Convention.
Madison argued further that if one were to permit amendments into the proceedings, then, even if one could come up with a unified list of proposals – which he doubted could be done -- the state legislatures would have two, or more, proposals for governance before them. Such a set of circumstances would create confusion amongst the states, with some states voting for one plan while other states would vote for other plans.
Apparently, Madison failed to consider the possibility that there was no need to confuse the states. If the Continental Congress actually decided to go ahead and consider the Philadelphia Constitution – which it was under no obligation to do – there was nothing preventing Congress from re-writing the Philadelphia document with incorporated amendments and, then, sending only one document to the state legislatures for their consideration.
Madison also maintained that the whole issue of amendments would land the country back into the same set of problems that already were undermining the possibility of effective governance. More specifically, one of the ‘defects’ of the Articles of Confederation has been the near impossibility of getting 13 states to agree unanimously on anything, and, therefore, the provision in the Philadelphia Convention which stipulated that only nine states were necessary to adopt the new constitution would resolve such a defect.
Although what Madison said may have had some degree of practical allurement to it, his argument ignored the fact that the current set of arrangements of governance required unanimous consent (which is why Article VII of the Philadelphia Constitution was written in the way it was – namely, “Done in convention by the unanimous consent of the states present” – in order to give the impression that the Philadelphia document had been unanimously agreed to by the states). In effect, Madison was saying that the present arrangement is problematic, so let’s just jettison it and run with the rule proposed by the illegally contrived Philadelphia Convention concerning the criteria for determining what constitutes a valid vote.
Rufus King, who was from Massachusetts and also had been a delegate to the Philadelphia Convention, took up the cudgel and proceeded to go with a different line of attack. He claimed that because the Articles of Confederation had been the result of an agreement among the states, then the states were the appropriate forum for voting whether, or not, the Philadelphia document should be adopted. Sending the proposed constitution to Congress was nothing more than a pro forma act of courtesy, and, consequently, Congress was not entitled to make any changes to the proposed Constitution.
King’s argument was rather tortured. Like Johnson, Carrington, Madison, and Butler before him, he was ignoring the fact that all 13 states – the very states that, according to Madison, couldn’t agree on anything – had unanimously consented to the Articles of Confederation in 1781.
One could concede the Articles of Confederation had been rooted in the collective initiative of the states. Nevertheless, such a consideration was irrelevant to the fact that the states had unanimously agreed to create a national form of governance, and, therefore, the states were not free to by-pass the Articles of Confederation just because, under certain circumstances (such as in the case of the Philadelphia Constitution), doing so might be advantageous.
At this point the discussion among the congressional representatives went in a new direction. The topic was rights.
Apparently, delegates to the Philadelphia Convention felt under some pressure to answer -- with respect to those members of the Continental Congress who had not attended the former set of meetings -- why the Philadelphia Constitution contained little in the way of rights. The boys from Philadelphia argued that while it was entirely appropriate that a number of states had incorporated declarations of rights into their state constitutions (and not all did so), such considerations had been deemed not to be necessary in the case of the Philadelphia Constitution since the powers that were to be placed in congressional hands via that document were strictly enumerated and could be activated only under certain circumstances.
Such an argument seemed oblivious to what had actually taken place in Philadelphia. In other words, despite being given authorization to undertake only certain, limited activities with respect to remedying some of the defects of the existing government (for example, problems involving trade and commerce), the Philadelphia Convention had proceeded to exceed its authority in egregious ways.
Claiming that the Philadelphia Constitution only permitted very specific enumerated powers was a ludicrous proposition given the context out of which that idea arose. What was to prevent future governments -- working under the provisions of the Philadelphia Constitution -- doing the same thing that the people in Philadelphia had done – that is, go beyond the boundaries of power that supposedly had been of a limited nature?
Eventually, on September 28, 1787, the Continental Congress passed a final resolution on the Philadelphia constitutional issue. This resolution indicated that Congress had received the Philadelphia document and was, now, forwarding that material to the state legislatures for purposes of setting in motion the machinery that would bring about ratification conventions. According to the wording of the resolution, the act of forwarding the issue to the various states had been “resolved unanimously.”
The Continental Congress was playing the same sort of word games in its resolution as had occurred in Philadelphia with respect to Article VII of the Constitution … and under the influence of many of the same players. The phrase: “resolved unanimously”, gave the misleading impression (and even Washington stated as much when he read it) that the Continental Congress was in favor of the Philadelphia Constitution, and nothing could be further from the truth.
Although bits and pieces of the Philadelphia Constitution had been discussed in the Continental Congress, most of the document lay unexamined by the members of that assembly. The only thing that had been “resolved unanimously” concerning the Philadelphia Constitution was the decision to forward the material onto the states for the purposes of instituting ratification conventions.
In other words, the Continental Congress failed to fulfill its fiduciary responsibilities to the Articles of Confederation and, therefore, the American people. Congress was passing on something to the states which had no legal standing under existing arrangements – that is, according to the Articles of Confederation, if the Philadelphia Constitution involved a plan for radically ‘revising’, if not entirely reconstituting, government, there needed to be a vote by Congress which approved such ‘revisions’ before that proposal was passed on to the state legislatures where it needed to receive the unanimous consent of the states.
The Continental Congress had withheld its approval of the Philadelphia Constitution, but, as well, it really had no authority to pass on the Philadelphia proposal. The matter should have ended there.
Under the Articles of Confederation, the Continental Congress had no authority to pass on the unapproved Philadelphia Constitution to the state legislatures for purposes of instituting ratification conventions. Even if Congress had given its consent to that constitutional proposal, the Articles of Confederation made no mention of the idea of ratification conventions that were independent of the state legislatures.
The state legislatures might be setting up the machinery through which such conventions were possible. However, the Articles of Confederation stipulated that the state legislatures must be the ones to consent to such changes, not ratification conventions consisting of delegates who often did not belong – but this was not always the case -- to state legislatures.
Consequently, the Continental Congress failed in its fiduciary responsibilities to the American people in several respects. As such, the whole ratification process was as illegal as the meetings in Philadelphia had been.
Rules were made concerning the foregoing matters, but all of these rules were arbitrarily conceived and extra-legal in character. There was absolutely no rule of law present that justified the process of ratification conventions.
Some people, however, might wish to argue that the rule of law upon which the United States is allegedly founded is a function of the ratification process that ensued following the Philadelphia Convention. According to the kind of mythology that is advanced through this sort of perspective, the ratification process harnessed the will of the people into a collective force that transformed the Constitution into the rule of law which has governed Americans since the late 1780s.
Appearances, however, are often deceptive. Such, I believe, is the case with respect to the historical perspective that tends to cloak the process of sanctifying the Philadelphia Constitution, and, I will be exploring -- in considerable depth -- the process of ‘Ratification’ in a subsequent posting.