A persistent constitutional myth has it that (1) Congress called the Constitutional Convention under the Articles of Confederation, (2) the convention drew its power from Congress, and (3) the convention exceeded its power when it recommended a new Constitution rather than merely propose amendments to the Articles.
As readers of this website know, however, the Constitutional Convention was not called by the Confederation Congress. It was called by Virginia and the commissioners (delegates) drew their authority from their respective state legislatures. All but two of those legislatures granted their commissioners full authority to recommend a new government.
This is further shown by a January 7, 1787 letter written by John Jay to George Washington. The letter also helps explain why the convention provided that the people, rather than the state legislatures, would ratify the Constitution.
The Jay Letter
In his letter, Jay first tells Washington that he is glad Washington will participate in the convention. Jay specifically says the delegates’ authority “is to be derived from acts of the State Legislatures.” But he says he has some doubts: Only the people—not state legislatures—can change constitutions. However, Jay then acknowledges that the state commissioners can recommend change. What they can’t do is mandate change. Yet Jay fears that after the convention makes its recommendation, “party Heats” may ensue.
Jay then suggests an alternative procedure: First, Congress should issue a statement that the Articles are inadequate, but without any particulars. Next, the state legislatures should authorize popular conventions to choose delegates to a general convention. The latter assembly would both write the changes and bind the people to them.
Thus, Jay understood that:
- the Constitutional Convention’s power came from the state legislatures, not from Congress;
- even without a popular mandate the Convention was free to propose; and
- popular consent was necessary to ratify a new constitution.
Of course, in predicting “party Heats” once the convention’s recommendations became public, Jay proved to be a prophet.
The Constitutional Convention Chooses a Different Procedure
Jay was not a commissioner to the Constitutional Convention. That body, with congressional approval, agreed that the people’s consent was necessary for the new Constitution. But the Constitutional Convention opted for a different procedure: Instead of popular conventions electing a general convention that would bind everyone to change, the general convention would propose change and the popular gatherings would ratify or reject.
The letter is in manuscript form here. Because it is difficult to read, I’ve reproduced the relevant portion below:
A convention is in contemplation, and I am glad to find your name among those of its intended members.
To me the Policy of such a Convention appears questionable. Their authority is to derived from acts of the State Legislatures. Are the State Legislatures authorized either by themselves or others to alter constitutions? I think not. They who hold commissions can by virtue of them neither retrench nor expand the Powers conveyed by them. Perhaps it is intended that this convention shall not ordain, but only recommend—if so there is Danger that their Recommendations will produce endless Discussions, and perhaps Jealousies and party Heats.
Would it not be better, for congress plainly and in strong Terms to declare, that the present foederal government is inadequate to the Purposes for which it was instituted — that they forbear to point out its particular Defects, or to ask for an Extension of any particular powers, as improper. Jealousies should thence arise; but that in their opinion it would be expedient for the People of the States without Delay to appoint State conventions (in the way they chuse their general assemblies) with the sole and express power of appointing Deputies to a general convention, who or the majority of whom should take into consideration the Articles of Confederation, and make such alterations amendments and additions thereto as to them should appear necessary and proper; and which being by them ordained and published should have the same force and obligation which all or any of the present articles now have.
No alterations in the government should I think be made, nor if attempted will easily take place, unless deduceable from the only Source of just authority, The People.