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The Federalist Papers: No. 40

On this day in 1788, Federalist Paper No. 40 is published. James Madison (a.k.a. “Publius”) addresses the contention that the Constitutional Convention exceeded its authority. Was it a runaway convention?

The question remains important today. Some states have been considering the possibility of using their Article V power to call for a convention. The Constitution provides that states may apply to Congress for “a convention for proposing amendments.” The Article V power has never been used. If states used it now, the goal would be to achieve a Balanced Budget Amendment or other, similar restraints on the federal government. Some people are against this idea because they fear that such a convention will turn into a “runaway convention,” as the original Constitutional Convention allegedly was.

But Madison argues that the original Constitutional Convention was not a “runaway convention.” The delegates believed that they were acting within the scope of their authority.

Madison begins with an important point: Each delegate had the authority specifically granted to him by his state. Delegates’ authority came from their **states**, not from the Confederation Congress! The same would hold true today. Each state would give specific instructions to its delegates. The U.S. Congress would not be in control of the situation.

Most of the state-issued commissions referenced recommendations made by the 1786 Annapolis Convention and/or the 1787 congressional recommendation. Thus, Madison analyzes the situation by looking to those two acts. Taken together, the recommendations authorized the delegates 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.”

What were the delegates to do if the “expressions defining the authority of the convention were irreconcilably at variance with each other”? What if a “NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION”? Which instruction were they to reject and which instruction were they to accept?

But Madison is not sure that those provisions were at odds with each other, anyway. “ALTERATIONS in the body of the [Articles of Confederation] are expressly authorized. NEW PROVISIONS therein are also expressly authorized.” The Convention thus had the “power to change the title; to insert new articles; to alter old ones.” This they did. At what point, then, did the Convention make one too many changes? Where is the boundary? What fundamental principles “were not within the purview of the convention, and ought not to have been varied?” He believes the important ones, such as state sovereignty, were kept.

In short, Madison is arguing that the Convention was given broad authority to “frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION.” This they did.

Madison admits only one violation of the delegates’ commissions: The plan authorized by the Convention does not require the “confirmation OF THE LEGISLATURES OF ALL THE STATES.” Instead, it “is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY.” He notes that no one seems very upset by this one admitted violation.

Even if the Convention did not have authority to go as far as it did, Madison notes that the proposed Constitution is “of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.” In other words, at the end of the day, the Constitution is just a piece of paper until such time as the people decide to approve it. Given the existing crisis, do not “some patriotic and respectable citizen or number of citizens” have a duty to propose changes, even if they are “INFORMAL AND UNAUTHORIZED PROPOSITIONS”?

Finally, assuming for the sake of argument, that the Constitution resulted from an unauthorized process, “does it follow that the Constitution ought, for that reason alone, to be rejected?” Either it is a good idea or it is not. Similarly, if we had a runaway convention today, the proposals made by that convention would have no legal weight until such time as 3/4 of the states decided to ratify the ideas. Presumably, a supermajority of states would not ratify bad ideas.