their independence, went hand in hand with this new view of constitutionalism, because it held the legislature in check and promised to prevent the return of legislative supremacy.
THE ANNAPOLIS CONVENTION
The catalyst for the Federal Convention of 1787 that wrote the Constitution of the United States was not the Continental Congress sitting in New York but the several States, led by the State of Virginia. What sparked the proceedings that led to the drafting of the Constitution was a commercial dispute between Virginia and Maryland over the taxing of shipping on the Potomac River and Chesapeake Bay. Led by James Madison, representatives from the two States met in 1784 at Mount Vernon, the home of General Washington. There they were able to settle their differences, but left unresolved questions regarding the interests of other States bordering Virginia and Maryland. Madison then persuaded the Virginia legislature to call a meeting of all the States to discuss trade problems, hoping that the participants might consider the larger issue of giving the Continental Congress the power to regulate commerce.
Virginia’s call for a convention was heeded, and in the summer and early fall of 1786 twelve delegates from five States (Virginia, Pennsylvania, New York, New Jersey, and Delaware) convened in Annapolis, Maryland. Although the other states (including Maryland, curiously enough) did not send a representative, and little was actually decided, the Annapolis Convention proved to be important in that it set the stage for the Federal Convention the next year. Conspicuous for their leadership at the Annapolis Convention were James Madison and Alexander Hamilton, who would later figure prominently in the drafting and adoption of the Constitution. At the urging of Hamilton, the Annapolis delegates voted on September 14, 1786, to recommend to all thirteen States that they hold another convention “to meet in Philadelphia on the second Monday in May next, to take into consideration the situation in the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”23
At this juncture, the Continental Congress could have assumed a leadership role by officially sponsoring the convention, or at least endorsing it. Instead, it remained a passive observer and took no action. Seizing the initiative, the Virginia legislature stepped forward with a resolution in November 1786 urging the other States to send delegates to Philadelphia. “The Crisis is arrived,” declared the Virginia General Assembly, when the American people must decide “whether they will by wise and magnanimous efforts, reap the just fruits of . . . independence” or whether by surrendering to “unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution. . . .”24 Such was the spirited language of the resolution’s preamble, written by James Madison. The Virginia General Assembly passed the resolution unanimously, acceded to the proposal from Annapolis, and appointed seven delegates to the convention. But the resolution contained a crucial stipulation inspired by the Assembly’s newfound commitment to popular sovereignty, namely that the new constitution should be established not by the legislatures of the several States meeting in Congress but by a convention gathering in Philadelphia, followed by ratification of the several States. Thus did Virginia prepare the way not only for the Federal Convention but for the State ratifying conventions as well. New Jersey, Pennsylvania, North Carolina, and Delaware promptly followed suit, and by February 1787 five States had already appointed their delegates.
Faced with this development, the Continental Congress on February 21, 1787, reluctantly endorsed the Philadelphia Convention. This removed all doubt as to the legality of the Convention, and seven more States promptly appointed delegates. Rhode Island, by its own choice, was the only member of the Confederation not represented at the Convention.
The inability of the Continental Congress to play a role in the drafting of the new Constitution was probably a blessing. As Madison diplomatically put it in his preamble to the Virginia resolution, a Philadelphia Convention would be “preferable to a discussion of the subject in Congress, where it might be too much interrupted by ordinary business, and when it would, besides, be deprived of the counsels of individuals who are restrained from a seat in that assembly.”25 One of the real reasons, of course, was that the Continental Congress was a rather lackluster body, possessing neither the political acumen nor the prestige to lead the nation in the formation of a new government. As one noted constitutional historian, George Ticknor Curtis, put it, Congress was bypassed because “the highest civil talent of the country was not there. The men to whom the American people had been accustomed to look in great emergencies—the men who were called into the convention, and whose power and wisdom were signally displayed in its deliberations—were then engaged in other spheres of public life, or had retired to the repose which they had earned in the great struggle with England.”26 James Madison, one of the few delegates to the Federal Convention who held a seat in the Continental Congress, did more than anyone else to keep the Congress in the shadows and out of the way.
THE FEDERAL CONVENTION
The delegates to the Federal Convention, all of them appointed by their State legislatures, began assembling in early May 1787. Lacking a quorum—that is, a sufficient number of delegates from at least seven States—on the appointed day (May 14), the Convention did not convene for business until May 25. Its task was completed nearly four months later, on September 17. Although the Continental Congress had authorized these proceedings, the delegates confronted a number of political and legal difficulties in seeking to change the Articles of Confederation. In the first place, the authorizing resolution adopted by the Congress, even though it did not purport to define the powers or specify the procedures of the convention (which thus gave the delegates the freedom they needed to apply their own knowledge and wisdom), nevertheless limited the scope of their proceedings to a revision of the Articles. Specifically, it declared that the delegates were to meet in Philadelphia for “the sole and express purpose of revising the Articles of Confederation.”27 Moreover, the instructions given to the delegates by their State legislatures varied from State to State, with some expressly or implicitly limiting their authority to “revising the Articles of Confederation.”28 In the second place, Article XIII of the Articles provided another barrier by requiring that all proposed amendments were to be approved by a unanimous vote of the States in Congress and ratified “by the legislatures of every State.”
From the outset, then, the architects of the Constitution confronted seemingly insurmountable obstacles in their efforts to establish a new government. Even the prospect of limiting their task to modest amendments of the Articles seemed doomed to failure, given the unanimity requirement and Rhode Island’s intransigence. But the solution to these difficulties was already provided by the Virginia resolution of November 1786 that had forced the hand of Congress and encouraged the States to act independently. It derived from a powerful and enduring, if not dominant, strain in the American political tradition that found expression in the Declaration of Independence, namely the principle of consent that embraced the fundamental right of the people “to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” Clearly, if the American people had a right to revolt against the British government, secede from the British empire, and live independently under a government of their own choosing, they also possessed a right to alter or even abolish the Articles of Confederation. This right of self-government, as the reasoning of the Declaration makes clear, is anterior to, and more fundamental than, any act of the Continental Congress or even the Articles. Accordingly, it provided “legitimate” grounds for the delegates to disregard the obstacles posed by Congress or the Articles to the creation of an entirely new national government. James Wilson of Pennsylvania, one of the most influential members of the Federal Convention, put the matter succinctly when he later addressed the Pennsylvania ratifying convention. Critics of the new Constitution, he observed, have argued that “the very manner of introducing this constitution, by the recognition of the authority of the people, is said to change the principle of the present Confederation, and to introduce a consolidating and absorbing government.” But such is not the case, he argued; sovereignty
