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It is only very recently that I heard someone express the sentiment that the Constitutional Convention of 1787 exceeded their authority in the Constitution they proposed. I was therefore more interested in reading Federalist No. 40 which addresses this exact question. The conclusion is a resounding dismissal of the charge save in one particular:
In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation.
The charge was repeated in the context of lamenting what might happen if a new Constitutional Convention were convened in our day. If that is ever to happen, I only hope that those chosen to attend the convention can use their mandate with as much wisdom to produce a Constitution that is as well-suited to good government as the one we have today.
Personally I think the best single change would be for us to adhere to the Constitution we have.
4 replies on “Federalist No. 40”
I have given some thought to a new constitutional convention, and I am not persuaded that we would be wise enough to develop a contract as wise as the one developed by the 1797 convention. Rather, I think we would fall into the kind of messy meandering that produced the European Union’s constitution: a 400-page piece of political mumbo-jumbo that delves into nitty-gritty low-level policies (such as subsidies for Basque sheep herders).
Many Americans derided the silly Europeans when the document failed ratification by its member states. But are we so sure that we would do any better? I don’t see any Washingtons, Madisons, Franklins, or Hamiltons commanding the national stage at this point in time.
If it sounded like I was in favor of a new constitutional convention I apologize. I do not believe that anyone today would come up with a constitution better than the one we have now. If we had some Washington’s, Hamilton’s, Franklin’s, and Madison’s leading a new convention with the hindsight of over two centuries then they might be able to come up with some improvements to our Constitution, but I think they would largely come up with the same thing they built before. That’s why I said that the single greatest change we could make would be to follow our existing Constitution.
Uh, 1787, not 1797. Sorry for the typo.
Actually following the Constitution (as amended) would be a great idea. Philip Howard of Common Cause argues that it would be great just to get obsolete regulations off the federal books in this article: http://online.wsj.com/article/SB122965044381020605.html .
Thanks for the link. I hope I’m not the only one who clicks through to read what Mr. Howard says there.