The road to the illegal founding
During the years of the Confederation, thus, the need to build a strong central government was extended among the leading class of the American States. The anxiety of creating the Federation was not so much inspired by the aim of strengthening the Union in its relationships with foreign powers.
The issue that predominated in the minds of the Federalists was to found a new constitutional framework in order to confront the disarray of American society and the upsidedown changes in the political and social hierarchy that the Revolution had released (Wood, 1998, p. 475).If we read the expressions of the Federalists, we find disdain everywhere towards the infusion of new classes that acceded to power during the breakup with the English empire and the formation of the Confederation (Main, 1966, pp. 391-407). The revolution allowed government to fall “into the Hands of those whose ability or situation in Life does not entitle them to it,”10 “men, respectable neither for their property, their virtue, nor their abilities,”11 “men whom Wisdom would have left in obscurity,”12 “men without reading, experience, or principle.”13 According to the Federalists, it was time to return the control of the government to the owners, the talented, and the respectable people.
The Founders would invest themselves with the authority of the “We the People” in order to block the People's effective rule. Basically, the main aim of the national political elite was the neutralization of the States' legislatures, bodies in which, after such experiences as those mentioned in Pennsylvania, Rhode Island, or Massachusetts (McDonald, 1968, p. 4) some of the Federalists saw the confirmation of all their fears regarding populism, the direct intervention of the people in political affairs, and the threat of individual rights.
“In our Governments the real power lies in the majority of the Community” wrote Madison to Jefferson in a letter “and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of constituents.”14Besides the opposition of James Madison, it is not difficult to find hundreds of writings of other prominent figures in the creation of the American Republic criticizing the power of States' elected representatives. Alexander Hamilton, for instance, denounced the usurpation of power by the legislature and warned his peers at the prospect of seeing the people's representatives transformed into “perpetual dictators” (Hamilton, 1962, p. 605). George Washington himself, in a letter to Madison, considered that the State legislatures were invaded by
“prejudices” and by “irrational jealousies and local interests” (Madison, 1979, pp. 161-162). Such a state of things allowed some historians of the period such as Gordon Wood (2002, 142-143) to state that:
By the mid-1780s many American leaders had come to believe that the State legislatures, not the governors, were the political authority to be most feared. Not only were some of the legislatures violating the individual rights of property-owners through their excessive printing of paper money and their various acts on behalf of debtors, but in all the States the assemblies also pushed beyond the generous grants of legislative authority of the 1776 Revolutionary constitutions and were absorbing numerous executive and judicial duties directing military operations, for example, and setting aside court judgments.
Undermining the State legislatures’ powers, particularly the States' Houses of Representatives’ powers had been in the mind of the future U.S. Constitution drafters during the years of the Confederation, to the extent that the first move in order to reach this purpose once the Federal constitutional draft was passed, relied on placing the ratification of the document not in the legislatures but in special Conventions.
It is not casual that the notion of constitution conceived as a set of fundamental rules able to bind the elected representatives (thus, the rules able to limit democratic decisions) was from 1776 developed by groups where confidence in the existing legislative assemblies was weakest (Wood, 1998, pp. 267-268). Mistrust in the States’ legislatures also explains the formation of the judicial review of legislation at the State level under the Confederation, as it would later explain the development of such an institution at the federal level.The operation deployed during the making of the U.S. Federal Constitution consequently sought, first of all, to circumvent as much as possible the influence of legislatures in the establishing of the constitutional framework. To this end, the idea of calling a constitutional Convention composed of delegates chosen with the special intention to frame a Constitution would be invoked. Such a body, that had already been present during the Revolution inspired by some episodes of English constitutional history, was conceived as a special representation of the People, expressing the consent among society on creating a set of rules superior to those enacted by the legislatures. But the calling of the Philadelphia Convention was a movement oriented to jeopardize the more radical representation in order to promote the selection of candidates closer to the interests of the privileged few. The theory of the Convention allowed the Founders to simulate the emergence of a special representation of the People while at the same time cutting the influence of the people at large both by (1) depriving the citizenry of the vote for the delegates and by (2) manipulating the legislatures, particularly through the Senates existing in most of the States, to ensure that the delegates appointed were supporters of the centralization of power. Curiously, as we have seen, when in 1776 most of the legislatures were integrated by conservatives, the calling for a constituent Convention was refused in all of them except Pennsylvania (and later
Violence and constituent power in America 113 in Massachusetts).
But when in 1787 the democrats entrenched their majorities in the Houses of representatives, the Federalists understood that only the calling of a Convention with opaque methods of selecting the delegates would allow them to frame a constitution for the Union according to their interests.In a long and detailed article devoted to showing all the range of illegalities that the Federalists perpetrated during the Founding, Bruce Ackerman and Neal Katyal (1995) argue that the violation of the Confederation legal framework was planned by the leaders of the Federalist movement from the outset. It was not only a matter of the violation, as we shall see, of Article XIII of the Confederation by which any alteration to such articles required the unanimous consent of the 13 States [while the Federal Constitution only required in its Article VII the consent of nine States to enter into force]15; it was a recurrent infringement of most of the procedural requirements in order to amend the existing framework. As Ackerman and Katyal remarked, the composition of the Convention was irregular since “the convention was itself a secessionist body” (1995, p. 480). Also, Kay (1987, p. 57) did not hesitate in stating that:
This foundation of American legality was itself the product of a blatant and conscious illegality.
Maintaining some analogies with the European integration process in the twentieth century, the immediate precedent of the American Federation was the struggle for a commercial union that had to be outlined by a general trade Convention which met in Annapolis, one year before the calling for the Convention on the Constitution (Farrand, 1960, pp. 7-11; Jensen, 1964, p. 33). The Confederation had been shown incapable of developing a successful economic policy because of the Congressional lack of authority to tax, to regulate commerce, or to control credit (Kay, 1984, p. 125; Ackerman, 2019, p. 368). The central government was incompetent either to establish national tariffs or trade policies and this, under the perspective of the Federalists, resulted in a serious disadvantage in competing or negotiating with other countries.
Large agriculture producers and merchants were therefore interested in adopting a common trade policy, but the commissioners sent to Annapolis and the organizers of the Convention (Hamilton among them) quickly realized that their flourishing commerce and economy needed a new political and legal framework to ensure respect for the rights of property and to provide order and stability. The fragmentation of political authority was, in the view of such circles, a major obstacle to progress (Kay, 1987, p. 63). The Annapolis Convention did not accomplish the purpose of establishing a general trade agreement because only five States were represented. It might not have gone very far, but the Shays' Rebellion highlighted among merchants, politicians, and generals the need for a strong national government (Elster, 2012a, p. 18). Accordingly, the commissioners recommended to the legislatures of the States and to the only body authorized by the Articles of Confederation to propose amendments, the United States in Congress Assembled, to set up another Convention of wider scope.The Congress adopted a resolution on February 21, 1787, in favour of a Convention. The Congressional resolution calling the Convention restricted the Convention’s mission to “revising the Articles of Confederation and reporting... alterations and provisions therein” (Kay, 1984, p. 126) but the delegates assembled in Philadelphia worked on a complete replacement of the Articles of the Confederation from the start (Bowen, 1986, p. 117). The Congress resolution, on the other hand, had provided that delegates should be “appointed by the States” without establishing any specific procedure for that purpose. The leaders of the Federalist movement were confronted with the pretension of convincing the legislatures, and particularly the members of the legislatures related to the large groups of economic interests, to send delegates to Philadelphia (Beard, 1964, p. 64). Naturally, those most concerned with the necessity of constitutional change were more receptive to becoming candidates.
The supporters of the Federal Constitution were able to use a substantial part of the institutional framework of each State to ensure that delegates would satisfy their expectations in defending the creation of the central government and introducing the proper checks to restrain democratic excesses. This aim was helped by popular indifference and ignorance prevailing during the formation of the Convention and the discussions regarding the structure of the central power.At the stage of sending the delegates, the only place where the purpose of the Federalists failed in part because the tensions around the debt issue were still vivid, was in Rhode Island, which did not respond to the call and renounced to send any commissioners to Philadelphia. Other States sent delegates but barred the delegation from agreeing to any proposal that affected equality in voting power as was regulated under the Confederation Articles (as in the case of Delaware, whose delegation recognized that it had acted in contempt of its commission). In the case of New York, three delegates were sent to the Convention but two (John Lansing and Robert Yates) withdrew from the sessions upon observing the pronounced centralized bias of the Federalist majority. Only Alexander Hamilton remained at the secret sessions and, consequently, the Convention did not even pretend that Hamilton’s signature would suffice to bind the State, explaining why among the State delegations enumerated on the final roll call as approving the Constitution, both that of Rhode Island and New York were omitted from the list (Ackerman and Katyal, 1995, pp. 481-482; Ackerman, 2019, p. 369).
The change of the constitutional framework also undermined some limits established by the State constitutions. After all, the legal status of each ratifying Convention depended on its particular State constitution (Kay, 2011, p. 728). There were some State constitutions that contemplated the use of Conventions and there were others that did not. Among the States’ constitutions that provided for the use of Conventions several mechanisms existed which allowed for the summoning of a Convention that were not satisfied in the 1787 process (in Massachusetts, for instance, it required two-thirds of the towns to agree; Pennsylvania required two-thirds of a specially elected body of Censors). There were other State constitutions that provided for the intervention of the States’ legislatures in some stage of the revisionary mechanism (precisely the body that
Violence and constituent power in America 115 some Federalists sought to elude). And, furthermore, some States' constitutional provisions forbade any Constitutional amendment until a certain date beyond the time in which the Federal Constitution was planned to be ratified. Either way, the Federalists lacked the legal authority to change the method of constitutional revision designed by the existing State constitutions.
The legal infringements to draft the U.S. Constitution were, in conclusion, constant.