On the 17th day of September, 1787, the Convention at Philadelphia finished its work and transmitted the new Constitution to Congress, with the suggestion that “it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature for their assent and ratification; and that each convention assenting to and ratifying the same should give notice thereof to the United States in Congress assembled.” The Philadelphia Convention further proposed that when nine states had ratified the new instrument, it should go into effect as between the states ratifying the same. Eleven days later, on September 28, the Congress, then sitting in New York, resolved to accept the advice of the Convention, and sent the Constitution to the state legislatures to be transmitted by them to conventions chosen by the voters of the respective commonwealths.

This whole process was a departure from the provisions of the then fundamental law of the land—the Articles of Confederation—which provided that all alterations and amendments should be made by Congress and receive the approval of the legislature of every state. If to-day the Congress of the United States should call a national convention to “revise” the Constitution, and such a convention should throw away the existing instrument of government entirely and submit a new frame of government to a popular referendum, disregarding altogether the process of amendment now provided, we should have something analogous to the great political transformation of 1787–89. The revolutionary nature of the work of the Philadelphia Convention is correctly characterized by Professor John W. Burgess when he states that had such acts been performed by Julius or Napoleon, they would have been pronounced coups d’état.[[539]]

This revolutionary plan of procedure was foreshadowed in the Virginia proposals at the opening of the Convention, and was, therefore, contemplated by some of the leaders from the beginning. When it was under consideration on June 5, Sherman, of Connecticut, opposed it on the ground that it was unnecessary and that regular provisions were already made in the Articles for amendments. Madison wanted to establish the Constitution on some foundation other than mere legislative approval. Gerry “observed that in the Eastern states the Confederation had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have, at this time, the wildest ideas of government in the world. They were for abolishing the senate in Massachusetts.” King thought that “a convention being a single house, the adoption may be more easily carried through it than through the legislatures where there are several branches. The legislatures also being to lose power will be most likely to raise objections.”[[540]]

On July 23 the resolution regarding ratification came before the Convention again for discussion,[[541]] when it was moved that the Constitution be referred to the state legislatures. One of the principal objections urged against this plan was the possibility of a later legislature’s repealing the ratification by a preceding body of the same authority; but the chief problem was whether there was more likelihood of securing a confirmation by legislatures or by conventions. “Whose opposition will be most likely to be excited against the system?” asked Randolph. “That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan.... It is of great importance, therefore, that the consideration of this subject should be transferred from the legislatures where this class of men have their full influence to a field in which their efforts can be less mischievous. It is, moreover, worthy of consideration that some of the states are averse to any change in their constitution, and will not take the requisite steps unless expressly called upon to refer the question to the people.”

Mr. Gorham, of Massachusetts, was of the same opinion. He “was against referring the plan to the legislatures. 1. Men chosen by the people for the particular purpose will discuss the subject more candidly than members of the legislature who are to lose the power which is to be given up to the general government. 2. Some of the legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the legislatures than through a convention. 3. In the states many of the ablest men are excluded from the legislatures, but may be elected into a convention. Among these may be ranked many of the clergy who are generally friends to good government.... 4. The legislatures will be interrupted with a variety of little business; by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether, the national system. 5. If the last article of the Confederation is to be pursued the unanimous concurrence of the states will be necessary.”

In the Convention, Ellsworth preferred to trust the legislatures rather than popularly elected conventions. “He thought more was to be expected from the legislatures than from the people. The prevailing wish of the people in the eastern states is to get rid of the public debt; and the idea of strengthening the national government carries with it that of strengthening the public debt.” After the plan of ratification by conventions was carried in spite of Ellsworth’s objections, he defended it in his appeal to the populace by saying: “It proves the honesty and patriotism of the gentlemen who composed the general Convention, that they chose to submit their system to the people rather than to the legislatures, whose decisions are often influenced by men in the higher departments of government, who have provided well for themselves and dread any change least they should be injured by its operation. I would not wish to exclude from a state convention those gentlemen who compose the higher branches of the assemblies in the several states, but choose to see them stand on an even floor with their brethren, where the artifice of a small number cannot negative a vast majority of the people. This danger was foreseen by the federal convention and they have wisely avoided it by appealing directly to the people.”[[542]]

A study of the opinions of the members of the Convention shows that four leading reasons led to the agreement on ratification by state conventions. It permitted the disregard of the principle of unanimous approval by the states. A firmer foundation would be laid for the Constitution if it had the sanction of special conventions rather than temporary legislatures. One of the first objects of the Constitution was to restrict the authority of state legislatures, and it could hardly be expected that they would voluntarily commit suicide. Another leading purpose of the Convention was to pay the public debt at par, and the members had learned from the repeated appeals to the state legislatures for funds to meet this national obligation that no relief was to be expected from this source. There was a better chance of getting the right kind of citizens elected to a convention than to a legislature. By separating the election of delegates to state conventions from the election of members to the state legislatures, the supporters of the Constitution were better able to concentrate their campaign of education. As for the provision of the Articles of Confederation requiring the approval of every state for any amendment in the Articles, the urgent necessities of the advocates of the new system could not permit such a mere technicality to stand in their way.

The question of their legal right to cast aside their instructions and draft a totally new instrument was more or less troublesome for those who entertained a strict regard for the observance of the outward signs of propriety. No doubt the instructions of the delegations from the several states limited them to the “revision” of the Articles of Confederation, and it is highly improbable that in the state of public temper then prevailing a Convention would have assembled at all if its revolutionary purposes had been understood. During the debates behind closed doors Mr. Paterson declared that the delegates were bound by their instructions, but Randolph replied that “he was not scrupulous on the point of power”; and Hamilton agreed with this view saying, “We owed it to our country to do on this emergency whatever we should deem essential to its happiness. The states sent us here to provide for the exigencies of the union. To rely on and propose any plan not adequate to these exigencies merely because it was not clearly within our powers would be to sacrifice the means to the end.”[[543]]

Outside the halls of the Convention it also became necessary to defend this revolutionary departure from their instructions. Madison took up the cause in The Federalist[[544]] and made out an unanswerable case for his side, frankly pleading the justification of revolution if the legal arguments which he advanced were deemed insufficient.

At the outset he is unwilling to admit that the Convention had broken with its instructions and performed a revolutionary act. He, accordingly, puts forward a legal and moral justification first, based upon an analysis of the instructions of the delegates. They were bound, he shows, to make such revisions in the Articles as would render them adequate to the exigencies of the union; but an adequate government, he pleads, could not be made by revising the Articles, and the Convention was either compelled to sacrifice the greater for the less by strictly obeying its instructions or to do its whole duty by sacrificing the letter of the law. Then he clinches the argument: “Let them declare whether it was of most importance to the happiness of the people of America that the Articles of Confederation should be disregarded and an adequate government be provided and the Union preserved; or that an adequate government should be omitted and the Articles of Confederation preserved.”