I have long awaited the day when our body politic could finally bury specious allegations that our Constitution is illegitimate. This appalling urban legend has, for far too long, demeaned our founding document and denigrated the great men who wrote it. But its funeral is finally at hand, thanks to a brand-new, peer-reviewed article in Volume 40 of the Harvard Journal of Law and Public Policy, written by renowned constitutional attorney Michael Farris.
For those unfamiliar with the illegitimate-Constitution myth, it goes something like this: "The 1787 Constitutional Convention was a 'runaway convention,' because the delegates were instructed to merely amend the Articles of Confederation, but they abused their authority and wrote a whole new Constitution instead."
As I recently pointed out in another column, one of the most disturbing aspects of this constitutional slander is the fact that many of its propagators claim to be the Constitution's most faithful disciples. They excoriate public officials who fail to honor the Constitution, oblivious to their own role in undermining respect for it.
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While the Constitution's ratification could perhaps be said to have cured its drafters' alleged breach of the public trust from a legal perspective, it could never remove the taint of moral illegitimacy that would forever weaken the Constitution's claim to our allegiance. In short, an illegitimately produced Constitution would make a mockery of our professed commitment to the rule of law.
Schizophrenic conservatives, however, press on in an attitude of holy reverence to the document they claim is a product of fraud. And yet they will confess that their reverence cannot be complete, in this regard: They abhor the process provided in Article V for a state-led convention to propose amendments. It, too, could be a runaway, they say, at which state delegations would ignore the instructions of the state legislatures that sent them to propose amendments on specified topics; they would rip the Constitution to shreds and start over. This, the schizophrenics will not abide, for they revere the sacred, infallible Constitution they insist was fraudulently produced.
Thankfully, Michael Farris has rescued the naysayers from their double-minded stance on the Constitution by proving that it is entirely legitimate, that the men who wrote it were not charlatans and that interstate conventions are controlled by the states. The claim that the founders disobeyed their instructions is based on the erroneous premise that Congress called the Constitutional Convention and limited the commissioners to amending the Articles of Confederation.
Here are the facts:
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Based on the recommendation of a prior convention in Annapolis, six state legislatures initially agreed to participate in the Constitutional Convention. As we can read in black-and-white in Farris' article, the states told their commissioners that the purpose of the convention was the one stated in the Annapolis Convention resolution: "to render the constitution of the Federal Government adequate for the exigencies of the Union." As used at this time, "constitution" did not refer to the Articles of Confederation, but to the system of government more broadly. (Convention scholar Robert Natelson provides the proof of this in one of his many enlightening articles).
On Feb. 21, 1787, Congress passed a resolution to endorse this Constitutional Convention already set in motion by six states. Congress recommended that the Convention solely revise the Articles of Confederation – thus later giving rise to the claim that the Founding Fathers exceeded their authority. But the fact is, Congress was powerless to dictate the terms of the Convention to the states participating in it.
Indeed, James Madison explained this in Federalist 40: the states' instructions – not those of Congress – defined the scope of the Constitutional Convention. They told their delegates to render the federal government adequate for the needs of the Union, and that is exactly what they did.
Those who disavow the legitimacy of the Constitution and the merits of its Article V convention process underestimate the power of the states on both counts. At an Article V convention, just as at the Constitutional Convention, the states choose, instruct and control their delegates – and history proves that state-selected delegates obey their instructions.
Thank you, Michael Farris, for defending the reputation of our Founding Fathers, our Constitution and, by implication, the amendment-proposing convention process it entrusts to the states in Article V. The only remaining question is whether constitutional slanderers will finally admit their error, when doing so forces them to concede that their opposition to the Article V convention process is based not upon evidence, but only on unsubstantiated fears.