Federalist 40:  The Convention Was Authorized to Propose a New Constitution

THE SECOND POINT to be examined is whether the Convention was authorized to frame and propose the Constitution. The powers of the Convention are best determined by an inspection of the commissions given to the members by their respective constituents.  All of the commissions made reference either to the recommendations from the meeting of State delegates at Annapolis in September 1786, or from the Congress at Philadelphia in February 1787.  Thus it is sufficient to refer to these particular acts. 

The Annapolis Resolution (September 1786)

The act from Annapolis recommended the “appointment of commissioners to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an Act for that purpose, to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the legislatures of every State, will effectually provide for the same.”  (In the preceding and following excerpts I have added the emphasis for the benefit of the reader.)   

The Philadelphia Congressional Resolution (February 1787)

The recommendatory act of Congress stated in part: “Whereas there is provision in the Articles of Confederation & perpetual Union, for making alterations therein by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation, as a mean to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution and such convention appearing to be the most probable mean of establishing in these States a firm national government:  

“Resolved that in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” 

The Principal Directives from the Annapolis and Philadelphia Resolutions

From these two acts, it appears:

1st.  The object of the Constitutional Convention was to establish, in these States, a firm national government; 

2d.  This government was to be such as would be adequate to the exigencies of government and the preservation of the Union; 

3d.  These purposes were to be effected by alterations of provisions in the Articles of Confederation, as it is expressed in the act of Congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from Annapolis; and 

4th.  The alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the Congress and confirmed by the States. 

From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the Convention acted. It was to frame a national government, adequate to the exigencies of government, and of the Union; and to reduce the articles of Confederation into such form as to accomplish these purposes.

Our Inquiry Is Aided by Common Sense Legal Maxims

There are several applicable rules of construction dictated by plain reason and legal axioms.  One is that every part of an expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. Another is that – where several parts cannot be made to coincide – the less important should give way to the more important part. In other words, the means should be sacrificed to the end, rather than the end to the means. 

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The delegates were deeply and unanimously impressed with the crisis. With almost one voice, the country had made a singular and solemn experiment to correct the errors of the system.  The delegates were no less deeply and unanimously convinced that the Constitution they proposed was absolutely necessary to effect the purposes of their appointment.  

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The Convention’s View of Its Charge

The Convention formed the judgment that the expressions defining its authority appeared irreconcilably at variance with each other, since a national and adequate government could not possibly be effected by altering or adding provisions to the Articles of Confederation.

In these circumstances, which part of its directive ought the Convention have embraced, and which rejected?  Which was the more important part, and which was the less important?  Which part was the end, and which part the means?

Some contended alterations of and additions to the Articles of Confederation could have molded an adequate national government, and that the Articles themselves were originally aimed at the end of national happiness.  

Can the adversaries of the Constitution answer whether it was more conducive to the happiness of the People of America to preserve the Articles of Confederation and thereby omit an adequate government, or to disregard the Articles and provide for an adequate government? Was preserving the Articles the end, and a reform of the government the means, or was the establishment of a government adequate to the national happiness the true end, for which the Articles – as an insufficient means – ought to have been sacrificed? 

The title of the document upon which the delegates agreed – the “Constitution for the United States of America” – does not, by itself, demonstrate the exercise of a power that was not granted. The Articles of Confederation expressly authorized alterations, as well as new provisions. Here then existed a power to change the title, to insert new articles, and to alter old ones. 

Were those powers infringed, so long as a part of the old articles remained? Those who allege infringement at least ought to mark the boundary between authorized and usurped innovations, between the degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. 

Will it be said that any alteration ought not to have touched the substance of the Articles of Confederation?  If so, the States never would have appointed a Convention with such solemnity – nor described its objects with so much latitude – if some substantial reform had not been contemplated. 

Will it be said that the fundamental principles of the Confederation were not within the purview of the Convention, and ought not to have been varied? I ask:  What are these principles? 

Did the fundamental principles of the Confederation require the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution. 

Did principles require that members of the government derive their appointment from the State legislatures, and not from the People of the States?  One branch of the new government – the Senate – is to be appointed by these legislatures. Even under the Confederation, all of the delegates to Congress could have been appointed immediately by the People, and actually were so appointed in Connecticut and Rhode Island. 

Did the fundamental principles of the Confederation require the powers of the Federal government act on the States, but not immediately on individuals? In some instances, the powers of the Federal government under the Constitution will act on the States in their collective characters.  In other instances – even under the Articles of Confederation – the powers of the government acted immediately on the persons and interests of individual citizens: in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the native tribes; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death could be inflicted without the intervention of a jury, or even of a civil magistrate. 

Did fundamental principles require that no tax should be levied without the intermediate agency of the States? The Confederation itself authorized a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source.  

Putting aside these instances, it was an acknowledged object of the Convention – and universal expectation of the People – that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue.

The Congress under the Articles did not consider such a measure as inconsistent with the fundamental principles of the Confederation. Every State but one had recognized the principle of the innovation.  

Finally, did the fundamental principles of the Confederation require that the powers of the general government have a fixed limit, beyond which the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. 

The truth is, that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation. 

The misfortune under the Articles was that its principles were so feeble and confined as to justify all the charges of inefficiency urged against them. It was the degree of necessary enlargement which has given the new system the aspect of an entire transformation of the old. 

The Constitution Is to Be Approved by the People Directly, rather than by the States 

I admit the Convention departed from the tenor of its commission in several particulars. Instead of reporting a plan requiring the confirmation of the legislatures of all the States, it reported a plan which was to be confirmed by the People, and could be carried into effect through ratification by only nine States. An objection on these grounds would have been the most plausible, but was the least urged in the publications which swarmed against the Convention. This forbearance must have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth, Rhode Island, which inflexibly opposed any changes to the Articles. This objection to the Constitution consisted of a “majority” of one sixtieth of the People of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the People of America. Rhode Island’s recalcitrance is still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of this country. 

Since any objection to the manner in which the Constitution was approved was in effect waived by those who criticized the powers of the Convention, I dismiss it without further observation. 

The Extent of Implied Authority of the Convention

The third inquiry to which I alluded in Federalist 39 is how far considerations of duty arising out of the case itself could have supplied any defect of regular authority of the Convention.

In the preceding two inquiries – to ascertain the real character of the government in question and how far the Convention was authorized to propose such a government – the powers granted to the Convention have been analyzed and tried with the same rigor and by the same rules as if they had been real and final powers delegated for the establishment of a Constitution. 

We have seen in what manner they have borne the trial on that supposition.  But we must recollect that the powers were merely advisory and recommendatory.  The Convention understood this, and accordingly planned and proposed a written Constitution which was to have no consequence unless stamped with the approval of those to whom it was addressed. 

This reflection places the subject in an altogether different point of view. It enables us to judge with propriety of the course taken by the Convention, and to view the ground upon which the delegates stood. The delegates were deeply and unanimously impressed with the crisis.  With almost one voice, the country had made a singular and solemn experiment to correct the errors of the system. The delegates were no less deeply and unanimously convinced that the Constitution they proposed was absolutely necessary to effect the purposes of their appointment.  

The hopes and expectations of the great body of citizens throughout this empire were turned with the keenest anxiety to the event of the deliberations.  The delegates had every reason to believe that the contrary sentiments of every external and internal foe to the liberty and prosperity of the United States was agitating the minds and bosoms of its citizens.  

The delegates had seen that just a few deputies from just a few States who convened in Annapolis had assumed the liberty of recommending a great and critical object – ostensibly outside the scope of their commission – which was approved by public opinion and actually carried into effect by twelve of the thirteen States in Congress. The delegates also were cognizant that Congress had assumed both recommendatory and operative powers which were warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. The delegates also had seen the introduction and rapid progress of the plan Virginia introduced during the Convention, towards a partial amendment of the Confederation.   

Upon reflection, the delegates must have concluded – as is the case in all great changes of established governments – that forms ought to give way to substance.  Rigid adherence to forms would render nominal and nugatory the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” as a famous Congress declared in 1776.  The delegates knew it would be impossible for the People spontaneously and universally to move in concert towards their object.  Therefore, it became essential that such changes be initiated by some informal propositions made by some patriotic and respectable citizen or citizens.

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Upon reflection, the delegates must have concluded – as is the case in all great changes of established governments – that forms ought to give way to substance. Rigid adherence to forms would render nominal and nugatory the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” as a famous Congress declared in 1776.

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The delegates recollected that it was by this irregular and assumed privilege of proposing to the People plans for their safety and happiness that the States had first united against the dangers Britain had threatened to their ancient government, which stimulated formation of committees and congresses to concentrate their efforts and defend their rights, and to elect conventions to establish their constitutions.  No ill-timed scruples or zeal for adhering to ordinary forms was anywhere seen among the delegates, except in those who wished to indulge their secret enmity to the substance of reform under these specious masks. 

The delegates bore in mind that the Constitution they framed was to be submitted to the People themselves.  The People’s disapproval would thereby destroy forever this potentially supreme authority. Approval, on the other hand, would blot out antecedent errors and irregularities. 

Even in those delegates whose disposition to debate was dominant, there resided an awareness that neglecting to execute the degree of power vested in the Convention – and still more the failure to recommend any measure whatever – was unwarranted by their commission.  Neglect of duty would excite no less criticism than recommending a measure fully commensurate to the national exigencies. 

In the midst of all these considerations, had the Convention taken the cold and sullen resolution of sacrificing substance to form and committing the dearest interests of their country to the uncertainties of delay and the hazard of events, instead of pointing out a system capable of securing its happiness, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? 

Even if I grant that the delegates were neither authorized by their commission nor justified by circumstances in proposing a Constitution for their country, does it follow that the Constitution ought to be rejected? If, according to the noble precept, it is lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? 

In all cases, the prudent inquiry ought surely to be, not so much from whom the advice comes, as whether the advice be good.  The charge against the Convention of exceeding its powers has no foundation to support it, except in the instance little urged by the objectors.  If the delegates exceeded their powers, they were warranted and arguably required – as the  confidential servants of their country and by the circumstances – to exercise the liberty which they assumed.  

Finally, even if the delegates violated both their powers and their obligations in proposing a Constitution, the result ought nevertheless be embraced as calculated to accomplish the views and happiness of the People of America.  How far this character is due to the Constitution, is the subject under investigation.

Madisonoriginal Federalist 40[Ed. note: useful links: Proceedings and recommendations of the commissioners from the Annapolis Convention (11-14 September 1786)Report of the proceedings in Congress assembled at Philadelphia, 21 February 1787Virginia Plan to revise the Articles of Confederation, introduced to the Constitutional Convention on 29 May 1787]