Constitutional-Literacy-24

=**Section 24: Legality and Adoption of the Constitution**=

There are contentions that the Constitutional Convention exceeded its authority (remember it replaced the Articles of Confederation). Joseph Ellis, in his book //Founding Brothers//, talks about how the ratification didn't require unanimous consent (all 13 states) like the Articles of Confederation required to amend the Articles. This statement can be used to make the argument that the Constitution was illegally adopted. A new document was proposed rather than mere changes to the Articles of Confederation and required only 9 of the 13 states to approve instead of all 13 as the Articles required if the Articles were being amended. On the surface, these arguments look plausible. However, a deeper look shows these allegations to be an error.

At the request of Virginia, the Annapolis Convention was called to make changes to the Articles of Confederation, but only five states were in attendance. They were looking at commerce. They realized that a larger convention was needed with more states in attendance. This convention was called to discuss the problems under the Articles of Confederation in relation to commerce (we discussed the issue with the Chesapeake Bay). The convention couldn't make any changes, but only recommendations. A resolution was adopted at Annapolis in September of 1786 to meet in Philadelphia in May of 1787 to discuss a constitution with the possibility of forming a federal system. Below is an excerpt from that resolution:


 * Comprehension Question: What meeting started the process of adopting the Constitution? What power did it have?**

Under this impression, Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction that it may essentially tend to advance the interests of the union if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, 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."

On February 21, 1787 the Confederation Congress authorized a convention in Philadelphia. Authorization was on revising the Articles of Confederation. They also said they wanted it to be made adequate for the federal constitution. They used both terms "revise" the Articles and "federal constitution." Also, it's common legislative practice to change the name of documents when revising them, so going from the name Articles of Confederation to Constitution was common legislative practice.


 * Comprehension Question: Who actually convened the Constitutional Convention?**


 * Comprehension Question: What directions did the Constitutional Convention receive? What authority did it receive?**

There are some similarities between the two documents: à So, it would be false to say the Constitution was a whole new document.
 * The Articles of Confederation named the nation the United States of America, which didn’t change.
 * The states retained all power not specifically delegated in the Articles and was still the case in the Constitution – made clear in the 10th amendment (later added).
 * The Articles said that the states formed a mutual defense compact – operation of the military changed under the Constitution, but the duty of defense of the whole nation did not change.
 * The Articles said people moving state to state had to be treated as citizens in the new state – similar wording in Article IV Section 2.
 * The General Welfare Clause was carried directly from the Articles to the Constitution. Remember, that this clause was intended to mean only where the states were not competent on their own. Remember, under the Articles the states were sovereign.

Instead of sending numerous amendments to the Articles of Confederation to the states for ratification, they sent them one big package – the whole new Constitution. It made no sense to send 20, 30, 50 amendments to be all voted on separately.

After the Constitutional Convention finished on Sept. 17, 1787 it sent its work to the Confederation Congress, which was then meeting in New York City. At this point, the Constitution was nothing more than a mere recommendation. On Sept. 28, 1787 the Confederation Congress approved the Constitution and sent it to state conventions for ratification. It’s important to understand that it didn’t go directly from the Constitutional Convention to the states bypassing the Congress. It went from the Convention to the Congress for approval before going to the states for ratification. The Confederation Congress unanimously approved the Constitution to go to the state legislatures with the stipulation that 9 of the 13 must agree, not all 13, for it to go into implementation. The Congress was the body that created the limitation of changes (all 13 states having to agree) so if they felt it exceeded their limitation, they could’ve stopped it.


 * Comprehension Question: What two things did the Congress do after receiving the recommendation from the Constitutional Convention?**

So what does that mean? All 13 states at the Confederation Congress had to approve any changes to the Articles. All 13 agree to send the new Constitution to the states for ratification. The new Constitution only required 9 of the 13 to ratify for it to go into implementation. All 13 states at the Confederation Congress agree to this procedure. Therefore, the first charge against the Constitution was false. The Constitution was a substantial and yet acceptable amendment to the Articles of Confederation.


 * Comprehension Question: How many state LEGISLATURES had to approve any proposed amendments to the Articles of Confederation?**

What about the change from all 13 needing to approve, to 9? The focus on numbers is a bit misleading since there was another change in the process being employed. Under the Articles, amendments were to be sent to state legislatures. Under the Constitution, they would be ratified by state __conventions__. Therefore, before considering the switch from 13 to 9, we first need to see how the switch was made from ratification by LEGISLATURES to ratification by CONVENTIONS.
 * The Confederation Congress sent the Constitution to all 13 state legislatures (look up resolution passed by Congress Sept. 28, 1787). Before any state convention could be held, the state legislatures would have had to approve the new process and set up ratifying conventions. So, before any state could submit the proposed Constitution to a ratification convention, its state legislature had to approve this new process. If all 13 state legislatures approved this change in process, then the Articles of Confederation would be fully satisfied.
 * This analysis looks at ratification as a two step process – (1) the state LEGISLATURES approved the new process and (2) the state RATIFCATION CONVENTIONS approved the new Constitution. As long as all 13 states approved the new process, the new method of ratification was perfectly legal under the Articles of Confederation. Without the approval of all 13 states legislatures, it would not be legal to submit the Constitution to state conventions.
 * Between Dec. 17, 1787 and July 26, 1788 11 states held ratifying conventions and approved the new Constitution. The new U.S. government took effect under the Constitution March 4, 1789. North Carolina and Rhode Island hadn’t ratified yet. It would’ve been illegally adopted if NC and RI hadn’t approved the new process, but both state legislatures did approve of the new process and formed state ratifying conventions.
 * In Feb. 1788 the North Carolina convention tabled the new Constitution and tabled it again Aug. 2, 1788.
 * It’s generally thought that Rhode Island ignored the whole process until the new government went into action and if this were true, then the 2nd charge against the Constitution’s adoption would stand. However, in Feb. 1788 Rhode Island delegates sent the ratification vote to the people. This act made all the people in the state of Rhode Island delegates to a ratifying convention. They would hold town conventions and the people would vote. This was different than the other states, but was allowed. March 24, 1788 the people of Rhode Island voted down the new Constitution. Rhode Island had long been opposed to any change to the Articles of Confederation. This doesn’t take away the fact that the Rhode Island legislature approved the change in the process that allowed the people to vote in their town conventions. Thus, all 13 state legislatures approved the change in process that would allow 9 out of 13 ratifying conventions to approve the new Constitution.


 * Comprehension Question: What was the new process for approving the major change to the Articles of Confederation that was approved by all 13 state legislatures?**


 * Comprehension Question: How many state ratifying conventions approved the new Constitution prior to the beginning of the new government in 1789?**

Adoption of the Constitution was legal and appropriate to send one large package for approval instead of numerous amendments. It was legally adopted.


 * Discussion Question: How was the adoption of the Constitution completely legal based on requirements of the Articles of Confederation?**

**Overall: Summarize the main idea of this section and why it's important.**

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