Bench Memos

NRO’s home for judicial news and analysis.

The Perennial Publius, part 40


Every so often one runs across a scholar who presses the argument, with apparent earnestness, that the Constitution is unconstitutional—that its proposal by the Constitutional Convention, and its adoption by the people of the states, were illegal under the terms of the Articles of Confederation.  The Articles, after all, provided for their own amendment, but only by agreement of the legislatures of all thirteen states.  But the convention had proposed to replace the Articles, not amend them, and had presented the new Constitution to be ratified not by state legislatures but by special state conventions, with nine states being sufficient to adopt the Constitution.  Was the whole process therefore illegitimate, a brazenly illegal proceeding?

Some opponents of the Constitution made such arguments at the time, and James Madison handily disposes of this matter in Federalist No. 40.  First he notes that the Confederation Congress itself called the Constitutional Convention into being, charging it (in the official resolution’s words) with “revising the articles of confederation,” and with “render[ing] the federal constitution adequate to the the exigencies of government and the preservation of the union.”  Which described a purpose to be served, and which described a method to be abandoned if it would not serve that purpose?  Or as Madison asks, “Which the end, which the means?”  If saving our country by creating an effective government can be accomplished only by jettisoning the Articles altogether, then the Convention may be said to have fulfilled its charge, not betrayed it.

Madison deals briefly and briskly with other niggling details of the argument, such as the nine-state ratification rule.  But the argument of greatest interest arrives when Madison all but concedes the “illegality,” in the narrow sense, of the entire proceeding that is on its way to giving birth to the Constitution.  For there is a higher authority than the terms of the Articles of Confederation, and that is “the transcendent and precious right of the people to ‘abolish or alter their governments’” in order to establish a better one that more fully secures their liberty.  Madison resorts, that is, to the Declaration of Independence, which states permanent political principles to whose measure every government must be held.  The Articles did not measure up, and the Constitution is a renewed attempt to hit the mark.

The adoption of the Constitution, in other words, is to be properly understood as a revolutionary act, not as a proceeding to be bounded within the four corners of an earlier legal charter like the Articles.  The events and actions of 1787-88 are no less a revolution, politically, than the events and actions of 1776 and after.  The Declaration’s principles do not require that all revolutions be violent upheavals, with armies clashing on battlefields.  A political revolution can be a peaceful return to first principles, in which the people exercise their sovereign authority to make and unmake governments.  Here is a ground deeper than ordinary elections and “business as usual,” deeper than existing institutions, deeper than constitutions themselves.  When we reach the ground from which law itself springs, the narrow legal arguments of the Anti-Federalists (and their latter-day echoes) fade into irrelevance.

(For explanation of this recurring feature, see here.)

Tags: Franck


Subscribe to National Review