CONSTITUTIONAL CONVENTION

Constitutional conventions, like the written constitutions that they produce, are among the American contributions to government. A constitutional convention became the means that a free people used to put into practice the

social compact theory by devising their fundamental law. Such a convention is a representative body acting for the sovereign people to whom it is responsible. Its sole commission is to frame a constitution; it does not pass laws, perform acts of administration, or govern in any way. It submits its work for popular ratification and adjourns. Such a convention first came into being during the american revolution. The institutionalizing of constitutional principles during wartime was the constructive achievement of the Revolution. The Revolution's enduring heroics are to be found in constitution-making. As jamesmadison exultantly declared, "Nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world … that free inhabitants have been seen deliberating on a form of government and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it."

Within a century of 1776 nearly two hundred state constitutional conventions had been held in the United States. The institution is so familiar that we forget how novel it was even in 1787. At the constitutional convention, which framed this nation's constitution, oliver ellsworth declared that since the framing of the articles of confederation (1781), "a new sett [sic] of ideas seemed to have crept in.… Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent."

Credit for understanding that legislatures were not competent for that task belongs to john lilburne, the English Leveller leader, who probably originated the idea of a constitutional convention. In his Legall Fundamentall Liberties (1649), he proposed that specially elected representatives should frame an Agreement of the People, or constitution, "which Agreement ought to be above Law; and therefore [set] bounds, limits, and extent of the people's Legislative Deputies in Parliament." Similarly, Sir Henry Vane, once governor of Massachusetts, proposed, in his Healing Question (1656), that a "convention" be chosen by the free consent of the people, "not properly to exercise the legislative power" but only to agree on "fundamentall constitutions" expressing the will of the people "in their highest state of soveraignty.…" The idea, which never made headway in England, was reexpressed in a pamphlet by Obadiah Hulme in 1771, recommending that a constitution should "be formed by a convention of delegates of the people, appointed for the express purpose," and that the constitution should never be "altered in any respect by any power besides the power which first framed [it]." Hulme's work was reprinted in Philadelphia in 1776 immediately before the framing of the pennsylvania constitution by a specially elected convention. That convention, however, in accordance with prevailing ideas, simultaneously exercised the powers of government and after promulgating its constitution remained in session as the state legislature. Until 1780 American legislatures wrote constitutions.

The theory underlying a constitutional convention, but not the actual idea of having one, was first proposed in America by the town meeting of Pittsfield, Massachusetts, on May 29, 1776. Massachusetts then had a provisional revolutionary extralegal government. Pittsfield asked, "What Compact has been formed as the foundation of Government in this province?" The collapse of British power over the colonies had thrown the people, "the foundation of power," into "a state of Nature." The first step to restore civil government on a permanent basis was "the formation of a fundamental Constitution as the Basis ground work of Legislation." The existing legislature, Pittsfield contended, although representative, could not make the constitution because, "They being but servants of the people cannot be greater than their Masters, must be responsible to them." A constitution is "above the whole Legislature," so that the "legislature cannot certainly make it.…" Pittsfield understood the difference between fundamental and ordinary law, yet inconsistently concluded that the legislature should frame the constitution on condition that it be submitted to the people for ratification.

Pittsfield was merely inconsistent, but the Continental Congress was bewildered. The provisional government of Massachusetts, requesting advice from Congress on how to institute government, said that it would accept a constitution proposed by Congress. That was in May 1775. Many years later, when his memory was not to be trusted, john adams recalled in his autobiography that congressmen went around asking each other, "How can the people institute government?" As late as May 1776, Congress, still lacking an answer, merely recommended that colonies without adequate governments should choose representatives to suppress royal authority and exercise power under popular authority. By then the temporary legislatures of New Hampshire and South Carolina, without popular authorization, had already framed and promulgated constitutions as if enacting statutory law, and continued to operate as legislatures. Adams, however, credited himself with knowing how to "realize [make real] the theories of the wisest writers," who had urged that sovereignty resides in the people and that government is made by contract. "This could be done," he explained, "only by conventions of representatives chosen by the people in the several colonies.…" How, congressmen asked him, can we know whether the people will submit to the new constitutions, and he recalled having replied, if there is doubt, "the convention may send out their project of a constitution, to the people in their several towns, counties, or districts, and the people may make the acceptance of it their own act." Congress did not follow his advice, he wrote, because of his "new, strange, and terrible doctrines."

Adams had described a procedure followed only in Massachusetts, and only after the legislature had asked the people of the towns for permission to frame a constitution and submit it for popular ratification. Several towns, led by Concord (see concord town meeting resolutions) protested that the legislature was not a competent body for the task, because a constitution had been overwhelmingly rejected in 1778. Concord had demanded a constitutional convention. In 1779 the legislature asked the towns to vote on the question whether a state constitution should be framed by a specially elected convention. The towns, voting by universal manhood suffrage, overwhelmingly approved. In late 1779 the delegates to the first constitutional convention in world history met in Cambridge and framed the massachusetts constitution of 1780, which the voters ratified after an intense public debate. With pride Thomas Dawes declared in an oration, "The people of Massachusetts have reduced to practice the wonderful theory. A numerous people have convened in a state of nature, and, like our ideas of the patriarchs, have authorized a few fathers of the land to draw up for them a glorious covenant." New Hampshire copied the procedure when revising its constitution in 1784, and it rapidly became standard procedure. Within a few years American constitutional theory had progressed from the belief that legislatures were competent to compose and announce constitutions, to the belief that a convention acting for the sovereign people is the only proper instrument for the task and that the sovereign must have the final word. A constitution, then, in American theory, is the supreme fundamental law that creates the legislature, authorizes its powers, and limits the exercise of its powers. The legislature is subordinate to the Constitution and cannot alter it.

Leonard W. Levy
(1986)

Bibliography

Adams, Willi Paul 1980 The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era. Chapel Hill: University of North Carolina Press.

Dodd, Walter F. 1910 The Revision and Amendment of State Constitutions. Baltimore: Johns Hopkins University Press.

Jameson, John Alexander 1887 A Treatise on Constitutional Conventions. 4th ed. Chicago: Callahan & Co.

Mc Laughlin, Andrew C. 1932 The Foundations of American Constitutionalism. New York: New York University Press.

Wood, Gordon S. 1969 The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press.