Original Argument: The Lost Chapters. Translated by Joshua Charles

Number 40

On the Powers of the Convention to Form a Mixed Government Examined and Sustained

James Madison

New York Packet

Friday, January 18, 1788

The second point which we will examine is whether the Convention was authorized to frame and propose this mixed (Federal/National) Constitution (Point 2, from No. 39).  In order to determine the answer to this question, we ought to very closely inspect the commissions which were given to the delegates of the Convention from their respective states and constituents.  Since all of these commissions were somehow based on the recommendations that came out of the Annapolis meeting (September 1786)[1] or from congress (February 1787),[2] it will be adequate to refer to those recommendations themselves.

The meeting at 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.”[3]

The recommendation from congress is as follows:

“Whereas, there is provision in the articles of confederation and 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 probably mean of establishing in these states, a firm national government: Resolved, That in the opinion of congress, it is expedient, that on the 2nd Monday in 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.”

From these two recommendations, it appears that the purposes of the Convention were as follows:

  1. To establish a firm National government
  2. That this government would be able to meet the demands of government, and the preservation of the Union
  3. That this purpose was to be fulfilled by making the necessary changes or adding the necessary provisions (“such alterations and provisions therein”) to the Articles of Confederation (as the recommendation from congress says)
  4. The changes and added provisions were to be reported to congress and to the states so that they could be agreed to by congress, and established by the states

By comparing and objectively analyzing these several recommendations, we can determine the nature of the authority under which the Convention acted.  They were to frame a National government, able to meet the needs of government and of the Union, and to alter the Articles of Confederation in such a way as to accomplish these purposes.

There are two rules of interpretation which are based on both plain reason, as well as legal principles.  The first is that every part of an expression should, if possible, be allowed some meaning, and should somehow be made to combine together for some common end or meaning.  The second is that when the separate pieces of an expression cannot be made to agree with each other, the less important parts should give way to the more important ones, and thus the means sacrificed to the end, rather than the end to the means.

Let’s now suppose that the expressions which were used to define the authority of the Convention were completely incompatible and contradictory, that a National and adequate government could not possibly have been accomplished in the Convention’s mind simply by alterations and adding provisions to the Articles of Confederation.  Which part of this definition should they have embraced, and which part should they have rejected?  Which part was more important, and which part was less important?  Which part was the end, which part the means?  Let the most learned scholars of delegated powers, and the most hardened critics of those powers which were used by the Convention, answer these questions.  Let them declare with their own mouths whether it was more important to the happiness of the American people that the Articles of Confederation be scrapped and an adequate government put in its place, or whether an adequate government should’ve been thrown to the side and the Articles of Confederation preserved.  Let them also tell us whether or not preserving the Articles of Confederation was the end for which the reform of the government was to be the means, or whether, if establishing a government capable of preserving our national happiness was the original goal of these Articles in the first place, and because they have proven incapable of accomplishing this, they should now be sacrificed.

But is it necessary to presume that these two expressions are indeed completely incompatible with each other?  Could no amount of alterations or adding provisions to the Articles of Confederation have produced an adequate National government, such as the one which has been proposed by the Convention?

Certainly it is safe to assume that no one will object to a change in the title of the Articles of Confederation, something which could never be regarded as the exercise of a power which was never given in the first place.  Alterations to them are explicitly authorized, as is the addition of new provisions.  Thus, there is the power to change the title, to insert new provisions, and to alter old ones.  Unless absolutely nothing of the original Articles of Confederation remains, must we necessarily admit that this power has been violated?  Those who maintain that a part of the original Articles of Confederation must remain should at least make the boundary between authorized and unauthorized changes clear, between the amount of change that can be made in accordance with alterations and further provisions, and that that amounts to a total transformation of the government.  Should it be acknowledged that the changes should not have affected the substance of the Confederation?  If that was the case, then the states would never have so solemnly appointed the Convention, nor given its purpose so much latitude and freedom if they did not expect some sort of substantial reform.  Should it be acknowledged that the Convention did not have the power to change the fundamental principles of the Confederation, so they should not have been altered?

It might be quite useful at this to simply ask “What are these principles?”  Do they require that in the establishment and ratification of the Constitution, the states should be regarded as distinct and independent powers?  The proposed Constitution regards them as such.[4] Do they require that every member of the government should be appointed by the state legislatures, not the People of the states?  One House of the new Congress will be appointed by the state legislatures (the Senate),[5] while under the Confederation, it is possible for all of the members of congress to be appointed directly by the people, and this is actually the case in two states.[6] Do they require that the powers of the government should apply only to the states themselves, and not to individual citizens?  Some previous examples have already shown that some of the powers of the new government will act on the states as political entities, and not on individual citizens.  There are, however, some examples of the powers of the current government applying directly to individuals.  The powers of the Confederacy operate directly on individuals and their interests in cases of capture, piracy, the post office, weights and measures, trade with the Indians, claims made under grants of land by different states, and above all in the case of court martials in the army and navy, where the death penalty may be inflicted without the intervention of any jury, or even a civil magistrate (a judge).  In particular, do these fundamental principles require that no tax should be imposed that does not require the use of the states as an intermediary to collect them?  The Confederation itself authorizes a direct tax (to a certain extent) on the post office.  The current congress has interpreted the power over coinage in such a way that it requires a tribute from the states from that same source.  But even letting these examples slide, was it not a widely acknowledged purpose of the Convention, as well as the universal expectation of the People, that the regulation of trade would become the duty of the new government, and in such a way that it would become an immediate source of revenue for it?[7]

Didn’t congress itself repeatedly suggest that this power was in no way inconsistent with the fundamental principles of the Confederation?  Had not every state but one, including New York herself, complied with the plans of congress so far, to the point that they even recognized the principle of this new power?  Finally, do these principles require that the powers of the General government should be limited, and that beyond this limit the states should possess their sovereignty and independence?  Just like in the old, we have seen that the general powers of the new government are limited, and that the states will be allowed to enjoy sovereign and independent jurisdiction over every power that is not specifically granted to the Federal government.[8]

The truth is that the great principles of the Constitution which has been proposed by the Convention can be considered less as being absolutely new, and more as an expansion of the principles which are already found in the Articles of Confederation.  However, the shame about the old system has been that these principles are so feeble and restricted that all the accusations of them being inefficient are entirely justified, and therefore require that the principles be so enlarged that it makes the new system appear as if it were a complete transformation of the old.

However, the Convention could be said to have departed from the spirit of its commission in one specific way.  Instead of providing a plan which would require the ratification of all the states, they have devised one which can be ratified by only nine states.[9] It is worth pointing out that this objection, while it is the most valid, has been the one least talked about throughout the entire swarm of publications against the Convention.  The reason for this is probably because of the absolute absurdity of risking the fate of twelve states to the perversity and corruption of a thirteenth.[10] Yes, indeed it was the example of a stubborn majority of one-sixtieth of the People of America opposing the actions called for by the voice of twelve states who make up fifty-nine-sixtieths of the People, an example which is still fresh in the memory and anger of every citizen who has been concerned about the wounded honor and prosperity of their country.  Therefore, since this objection has apparently been ignored by the critics of the Constitution, I dismiss it without further comment.

The third point to be examined is, given the gravity of the event, how much the Convention’s feeling of duty could have made up for a lack of some sort of regular authority which could have done the same thing that they did (Point 3, from No. 39).  Throughout all the previous observations I have made, I have analyzed and tested the powers of the Convention with the same precision and according to the same rules as if they had been the only powers needed to establish a Constitution for the United States.  With that assumption in mind, we have seen how they have stood up to those observations.  We must now remember that the powers which were given by the states to the Convention were merely based on advice and recommendations, and were understood by both as such.  Accordingly, the Convention planned and proposed a Constitution which is as worthless as the paper it is written on unless those to whom it is addressed give it their seal of approval.  This fact puts the entire subject in an entirely different light, tone in which we will be able appropriately judge the actions of the Convention.

Let’s take a look at the ground on which the Convention stood.  Based on their actions, we can assume that they were deeply and unanimously aware of the crisis which had forced their country, with a nearly single, unanimous voice, to even have to call for such a solemn and extraordinary experiment in order to correct the errors in the system which had produced the crisis in the first place.  They were obviously just as deeply and unanimously convinced that a set of reforms, such as the ones they proposed, were absolutely necessary in order for them to fulfill the duties required of them by their appointment.  They were no doubt aware that the hopes and expectations of the majority of citizens throughout this great empire were focused, with the greatest anxiety, on their deliberations.  They also had every reason to believe that the exact opposite feelings disturbed the minds and very being of every external and internal enemy of the liberty and prosperity of the United States.  They had seen the beginning, the progress, and the eagerness with which even the proposition, made by the single state of Virginia, that the Articles of Confederation be partially amended, had spread and gained steam.[11] They had seen at Annapolis how a very small group of deputies from a very small number of states went completely beyond their commission and recommended this great and all important experiment which became the Convention, and which was not only justified by public opinion, but was actually put into effect by twelve of the thirteen states (not including Rhode Island).  They had seen several examples of congress, at the behest of public opinion, assuming powers which were not just recommended, but which they actually had already, during and for the sake of occasions and purposes infinitely less urgent than their own.  They must have concluded that during any great changes in an established government, form ought to give way to substance, and that a stubborn adherence to form would render the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to affect their safety and happiness”[12] as merely nominal, and worthless.  Since it is impossible for the People to spontaneously and all at the same time move in concert towards their goal, it is essential that such changes be instituted via some informal and unauthorized proposals made by some patriotic and respectable citizen, or group of citizens.  They must have remembered that it was by this unexpected and understood privilege of proposing to the People plans for their safety and happiness which originally united the states against the danger posed to them by their ancient government (Great Britain).  They must have also remembered that committees and congresses were formed in the first place in order to concentrate all of the people’s efforts and defend their rights, and that conventions were elected in the several states in order to establish the constitutions under which they are currently governed.  Nor could they have forgotten that there was nowhere to be seen any poorly timed second thoughts, or any eagerness on the part of anyone to adhere to ordinary forms of government, except in those who, under these masks, wished to indulge their secret hostility to the substance of what the Revolution represented.  They must have also kept in mind that since the Plan to be framed and proposed was to be submitted to the People themselves, that the rejection by this supreme authority would destroy it forever, but also that its approval would blot out all the previous mistakes and abnormalities of the old system.  It might have even occurred to them that among those who would be eager to criticize them, any neglect on their part to use all of the power which was available to them, and even more so any recommendations on their part which went beyond their commission in any way, would arouse the same amount of criticism as any other recommendations they provided which were fully capable of answering the needs of the nation.

With all of these impressions, and in the midst of all of these considerations, what if the Convention, instead of exercising a courageous confidence in the country which had bestowed its trust uniquely on them, and pointing out a system which they believed would be capable of securing its happiness, had instead made the cold and dismal decision to disappoint its most ardent hopes, to sacrifice substance to form, and placed the dearest interests of their country at the mercy of delay and of events?  Let me ask the man whose mind is capable of conceiving just one lofty idea, and who can awaken in his bosom just one patriotic emotion: if the Convention had made the second choice, what judgment ought to have been pronounced against the conduct and character of such an assembly by the impartial world, by the friends of mankind, and by every virtuous citizen?  Or if there is a man who simply must condemn others, let me ask what sentence he would pronounce against the twelve states who usurped power in order to send deputies to the Convention, a body completely unfamiliar to their constitutions; to a congress who recommended the formation of this assembly (just as unfamiliar to the Confederation); and for the state of New York in particular, who was the first to advocate, and then to comply with this apparently unauthorized assembly?

For the sake of denying the opponents of the Constitution every pretext for their criticism, I will grant for the moment that the Convention was neither authorized by their commission, nor justified by their circumstances in proposing a Constitution for their country.  Based on that reason alone, does it follow that the Constitution should be rejected?  If, as according to the noble teaching, it is right to accept good advice even when it comes from an enemy, shall we then set the shameful example of refusing such advice even when it is offered to us by our friends?  The wise choice will always be to not care about who gave the advice, but whether or not the advice itself is good.

The sum of everything which I have put forward and proven is that the accusation made against the Convention, specifically that it exceeded its powers, except in one instance which the critics don’t seem to care about (requiring the approval of nine states, instead of all thirteen), is completely baseless.  If they exceeded their powers, they were not only justified in doing so, but as the trusted servants of their country, and because of the circumstances into which they were placed, were required[13] to do so, and to exercise the liberty which they had taken upon themselves.  Finally, even if the Convention violated both their powers and their obligations in proposing the Constitution, it should still be supported and ratified if it will accomplish the purposes and the happiness of the People of America.  Whether or not the Constitution will accomplish these things is the great question which we are investigating.


[1]Annapolis Convention (1786): A meeting which was held in Annapolis, Maryland from September 11-14, 1787, and was attended by 12 delegates from five states (Virginia, New Jersey, New York, Pennsylvania, and Delaware).  The official name of the meeting was a “Meeting of Commissioners to Remedy Defects of the Federal Government.”  The primary purpose of the meeting was to overcome barriers to the limited trade and commerce between the states, who were mostly independent and sovereign under the Articles of Confederation.  The recommendations of the Annapolis Convention can be found in the Appendix of this work.

[2]Recommendation from Congress; February 21, 1787 (Original): “Congress having had under consideration the letter of John Dickinson esqr. (Esquire) chairman of the Commissioners who assembled at Annapolis (refer to previous footnote) during the last year also the proceedings of the said commissioners and entirely coinciding with them as to the inefficiency of the federal government and the necessity of devising such farther provisions as shall render the same adequate to the exigencies of the Union do strongly recommend to the different legislatures to send forward delegates to meet the proposed convention on the second Monday in May next at the city of Philadelphia…That it be recommended to the States composing the Union that a convention of representatives from the said States respectively be held at—on—for the purpose of revising the Articles of Confederation and perpetual Union between the United States of America and reporting to the United States in Congress assembled and to the States respectively such alterations and amendments of the said Articles of Confederation as the representatives met in such convention shall judge proper and necessary to render them adequate to the preservation and support of the Union.”

[3]The complete recommendations can be found in the Appendix of this work.

[4]United States Constitution: Article V

[5]United States Constitution: Article I, Section 3, clause 1

[6]Connecticut and Rhode Island.

[7]United States Constitution: Article I, Section 8, clause 3

[8]This principle (which was codified in the 10th Amendment of the Bill of Rights) is referenced and described in more detail in Federalist No. 32, and is also referenced in Federalist Nos. 81-82.

[9]United States Constitution: Article VII

[10]Rhode Island boycotted the Constitutional Convention.

[11]On January 21, 1786, the Virginia Legislature (on the recommendation of James Madison) invited all of the states to a Convention in order to solve the problems which were associated with the Articles of Confederation.  This first meeting became known as the Annapolis Convention.  It was held in Annapolis, Maryland from September 11-14, 1786, but was only attended by 12 delegates from five states (Virginia, New Jersey, New York, Pennsylvania, Delaware).

[12]Declaration of Independence.

[13]Emphasis added.

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