Federalist 40 begins with identifying the purpose of the Constitutional Convention of 1787. Authored by James Madison, the Father of the Constitution writes, “They were 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.”
The objective sounds clear enough, but that creates a problem of whether or not the delegates exceeded their power when they created an entirely new constitutional republic.
Madison lists two mandates which he feels gave convention delegates enough latitude to write a new constitution. The first is from the Annapolis Convention of 1786, which resolved “to devise such further provisions as shall appear necessary to render the Constitution of the federal government adequate to the exigencies of the Union.” But then Madison mentions the second mandate, from Congress, which said the new convention would meet “for the sole and express purpose of revising the articles of Confederation.” Well, those are two different things.
The first reference uses language too board for a government when it says “shall appear necessary.” The Constitution’s Necessary and Proper Clause has created lengthy litigation in the courts to decipher its meaning. Just saying “necessary” isn’t enough. Limited guidelines, strictly enforced, is a more appropriate way to handle a convention.
And in that sense, Madison’s second reference, limits the “necessary” line to a very specific purpose when it says “for the sole and express purpose of revising.” The first reference is from the Annapolis convention making a recommendation to Congress, while the second is the mandate from Congress creating the new convention. The first holds the weight of a suggestion, while the second holds the weight of the law.
The law is binding, therefore the convention delegates in 1787 overstepped their authority when they discussed the Virginia Plan and began debating a new republic.
Madison, either disagrees or just doesn’t care. He concludes Federalist 40 with-
“The charge against the convention of exceeding their powers … has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views of happiness of the people of America.”
I don’t like this explanation from Madison. He’s all over the place, offering an excuse for a number of charges all at once. Each explanation is a brief it’s-for-your-own-happiness argument, which should always be viewed with skepticism when it comes from a government, and I certainly reject the idea that a government can employ unlawful procedures to achieve a desired outcome. Madison even writes, “the means should be sacrificed to the end.” No, sir. The rules are the rules, and they allow enough latitude to maneuver through them lawfully, without breaking anything.
A new resolution from Congress, or specific authorization from their home states, would have been the appropriate course to take before re-drafting an entirely new constitution. I doubt that would have stopped a new constitution from forming; it would likely have just delayed everything by a year, which would’ve been fine. Also, a Bill of Rights may have had the opportunity to be officially added in the convention, and not after ratification (George Mason said he only needed a few hours to write a bill of rights).
Hindsight allows us to dismiss the ambiguity of the true lawful scope of the Constitutional Convention of 1787 because we know it worked out. Virginians were split at the time. Patrick Henry, George Mason, and Richard Henry Lee formed a solid front against ratification. Among their reasons was that the convention overstepped their authority. But they couldn’t overcome the influence of George Washington, Thomas Jefferson, and James Madison who advocated for ratification.
To any doubts about the authority given to the convention delegates, we have obviously forgiven them. Standing or not, the convention produced an enduring constitution.
