Subjects Inside: Article V Applications  FAQ, Application Counts By Congress, Articles, AVC Legislative Report, CRS Reports, Convention of States, The Historic Record of COS, COS Laws, COS Articles, John Birch Society, Con-Con, Runaway Convention, Who Called the Convention, Congressional Vote on a "Runaway" Convention, "Obey the Constitution, Only Two More States", Rescissions, The Phony Burger Letter, The Madison Letter, Fotheringham Exchange, JBS Articles, Sibley Lawsuit, General Interest, Article V.org, Robert Natelson, History of Article V, Counting the Applications, The Numeric Count History, Congressional Decision of May 5, 1789, Development of Article V, The Committee of the Whole, The Committee of Detail, August 30, September 10, Committee of Style, September 15, Official  Government Documents, History of FOAVC, Founders, Audio/Visual, Links, Contact Us, Legal Page, 14th Amendment, The Electoral Process, Packets, Definitions, Numeric Counts of Applications, Same Subject Counts of Applications

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Page 6 B--Who Called the Convention, Congressional Vote on A "Runaway" Convention

Who Called the Federal Convention of 1787?

The Federal Convention of 1787 met in Philadelphia from May 25, 1787 to September 17, 1787 during which time it wrote the proposed Constitution. As discussed elsewhere on this site the proposal Constitution (including Article V) underwent numerous revisions and drafts. On Monday, September 17, 1787, the Federal Convention of 1787 concluded its work and sent the engrossed proposed Constitution to Congress which was meeting in New York.

The proposed constitution was published in the Journals of the Continental Congress on Thursday, September 20, 1787. Formal debate on whether to agree the recommendation of the Federal Convention of 1787 began on September 27, 1787. Copies of all records found in the Journal of Congress can be examined on our website. In the discussion below copies of records either from the Journal of Congress or pages from "The Records of the Federal Convention of 1787" by Max Farrand are presented. For reading purposes the images may be enlarged by clicking on the appropriate page image.

02380228 Robert Natelson, (See: Page 10), has stated the state of Virginia "called" the Federal Convention of 1787 rather than Congress. Natelson further asserts Congress accepted expansion of convention authority by passage of an April 23, 1787 resolution granting franking privileges to the convention. He asserts this action proves Congress accepted expansion in authority for the Federal Convention of 1787 beyond "merely proposing amendments to the Articles of Confederation." (Natelson provides an erroneous link to a page of the Journal of Congress in his article discussing the resolution. The correct page is shown at left, click to enlarge).

Nothing in the April 23, 1787 resolution supports Natelson's assertion as fact. There is no discussion by Congress that day indicating what convention power is expanded with franking privileges nor an explanation of how granting franking privilege expands convention power. Based on the published public record FOAVC instead believes the franking resolution was no more than a budgetary procedure by Congress. Public record shows neither Congress or any state advanced any operational funds to the convention prior to its convening in May, 1787.

There is no record of any funds received during the convention for its operational expenses. Instead the convention kept a tally of its expenses and forwarded these for reimbursement at the conclusion of the convention. This meant delegates and convention alike were dependent on their own resources and the good graces of local business given the dubious credit of the national government (one of the reasons for holding the convention). Granting franking privileges was merely a means to keep costs down.

As discussed elsewhere on this site there is a difference between the words "alter" and "amend." Moreover Congress had already expanded the powers of the Federal Convention of 1787 beyond the limited word "amend" using the broader word "revise" to describe the task assigned the convention. Having done so, it had no reason to revisit the issue when discussing franking privilege. Natelson makes the same mistake in wordage as JBS/Eagle Forum; there was no power to "amend" the Articles of Confederation.

-232-680 Further historic record proves Natelson wrong on who "called" the convention. If, as Natelson presumes, Congress did not call the Federal Convention of 1787, then the Annapolis Convention of 1786 did so by setting a time and place for the convention. According to historic records, that convention of 12 men representing five states met in a tavern in Annapolis, Maryland at the suggestion of James Madison. The announced purpose of the convention was to discuss issues of interstate trade. The convention determined it lacked sufficient membership to make any recommendations but did request Congress call a general convention for the following year (See image right, click to enlarge). 

As the convention in its 1786 report to Congress (See Page 12 Table 2) clearly understood it lacked authority to call a national convention Natelson in 2016 correctly states the Annapolis Convention did not have authority to call a national convention. Instead Natelson insists the state of Virginia had authority to call a national convention. Apparently, according to Natelson, than for no other reason than in response to the "call" by the Annapolis its legislature was the first to echo the "call" by passage of a resolution. Natelson provides no legal citation from the Articles of Confederation or Virginia state law of that time granting the state of Virginia authority to call a national convention.

However, as recognized by the Annapolis Convention, the Articles of Confederation did give Congress authority to call a convention. Article XIII states, "Every State shall abide by the determination of the United States in Congress assembled,  on all questions which by this confederation are submitted to them." The question of calling a convention for the express purpose of "revising" the Articles of Confederation was put before Congress by the report of the Annapolis Convention commissioners. Under the terms of the Articles of Confederation the decision of Congress to call the Federal Convention of 1787 was authorized under the national law of that time and was expressly removed from all states. Therefore plainly the state of Virginia did not have authority to decide the "question" of a convention call. Congress clearly did. Congress used this authority to issue the actual convention call on February 21, 1787 and thus was the body that "called" the Federal Convention of 1787.

01060488Any lingering doubt as to who had authority to call the convention is resolved by answer to the two most pragmatic questions about the convention--who funded the Federal Convention of 1787 and to whom did the convention report?  Obviously, if, as Natelson contends, the state of Virgina, (or some other state), actually called the convention then reasonably those responsible for the convention call would bear the cost of holding it. This was not the case. Together with the proposed Constitution and other paperwork the Federal Convention of 1787 submitted a bill to Congress for $1163.90 for convention expenses consisting of wages, supplies and printing. In today's dollars, the cost of the Federal Convention of 1787 was approximately $30,000 of which its secretary William Jackson was paid approximately $22,000 for four months work.

0121050301200502Further the convention correspondence sent directly to Congress contained a specific letter of request by convention president, George  Washington, that Congress consider the proposal of the convention. Had the convention believed it had authority of amendment as JBS/Eagle Forum contend instead of a recommendation that Congress consider its proposal, the Federal Convention of 1787 would have informed Congress of its decision. Had a state, such as Virginia, been responsible for the call, obviously all correspondence from the convention would have been directed to that state and that state would have either been "informed" or requested to "consider" the recommendation of the convention.

The "consideration" of something includes the possibility of rejection or modification. The use of the word by the convention means its delegates realized Congress could reject their proposal, modify it or transmit it as written to the states. Thus, whatever Congress, not the Federal Convention of 1787 decided, would be the proposal considered by the states as the "question" of what to propose to resolve the "exigencies of Government and preservation of the Union." Thus, according to public record and acknowledged by the Federal Convention of 1787, Congress, not the convention, decided whether to propose the new Constitution, determined the final version of that proposal (unaltered from that proposed by the convention) and established under what terms that proposal would be considered by the states. This is a far cry from the utterly wrong version of history set forth by JBS/Eagle Forum as its basis to oppose an Article V Convention.

The Debate In Congress; The Vote on a "Runaway" Convention

Debate in Congress over the proposed Constitution began on Thursday, September 27, 1787 ten days after the convention had adjourned. The proposed Constitution and all other associated documentation from the Federal Convention of 1787 was published in full in the Journal of Congress on September 20, 1787. The week gave members of Congress ample time to study the proposal and to take positions regarding it.  The Journal of Congress did not, as is the custom today, recount all words spoken in Congress verbatim.

Fortunately Melancton Smith, a member of the New York delegation, took detailed notes of the comments made during the debate (reprinted below; click to enlarge).
The debate centered on two points with opposition to the proposal lead by Richard Henry Lee of Virginia. First, whether Congress would exceed its authority in proposing the new Constitution (and thus agree the convention that proposed it was a "runaway" as alleged by JBS/Eagle Forum). Second, whether Congress had authority to alter the proposed Constitution before submitting it to the states.

The Melancton Notes

Smith Notes Page 1
Smith Notes Page 2
Smith Notes Page 3
Smith Notes Page 4
Smith Notes Page 5
Smith Notes Page 6

Lee, Clarke, Carrington, Dane and Final Resolution By Congress

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In all, four resolutions were debated in Congress on September 27, 1787. Ultimately none were accepted by Congress. The first resolution by Richard Henry Lee of Virginia, (seconded by Melancton Smith of New York) read: "Resolved That Congress after due attention to the Constitution under which this body exists and acts find that the said Constitution in the thirteenth Article thereof limits the power of Congress to the amendment of the present confederacy of thirteen states, but does not extend it to the creation of a new confederacy of nine states; and the late Convention having been constituted under the authority of twelve states in this Union it is deemed respectful to transmit and it is accordingly ordered that the plan of a new federal constitution laid before Congress by the said convention be sent to the executive of every state in this union to be laid before their respective legislatures."

By a vote of 26-5 Congress rejected Lee's "runaway" convention resolution. Logically, if Congress did not have power to "extend...to the creation of new confederacy" any convention it called did not have authority to propose it. Therefore any such convention would have exceeded its "scope" and therefore was a "runaway" convention. As Congress voted down Lee's resolution it also resolved the question of whether the Federal Convention of 1787 was a "runaway" and officially determined the convention was not a "runaway" convention. Congress had authority to decide this question under the authority granted it by the Articles of Confederation.

Having officially disposed of the "runaway" convention theory of Lee's (and therefore JBS/Eagle Forum), Congress considered three other proposals each favoring submission of the proposed Constitution to the states but under different circumstances. Each in turn was "postponed" in favor of the next proposal. In the end no proposal was affirmed by Congress on September 27, 1787.

The second resolution of September 27, 1787 by Abraham Clarke of New Jersey (seconded by Nathaniel Mitchell of Delaware) reads: "That a copy of the Constitution agreed to and laid before Congress by the late Convention of the several states with their resolutions and the letter accompanying the same be transmitted to the executives of each state to be laid before their respective legislatures in order to be by them submitted to conventions of delegates to be chosen agreeably to the said resolutions of the Convention."

The third resolution by Edward Carrington of of Virginia (seconded by William Bingham of Pennsylvania) read, "Congress proceeded to the consideration of the Constitution for the United States by the late Convention held in the City of Philadelphia and thereupon resolved That Congress do agree thereto and that it be recommended to the legislatures of the several states to cause conventions to be held as speedily as may be to the end that the same may be adopted ratified and confirmed."

A fourth resolution was made by Nathan Dane of Massachusetts with no record of a second in Journal of Congress and is shown in the fourth and fifth panels above. As there was no recorded second it is unclear whether this resolution was actually considered by Congress as it appears not to have been properly introduced on the floor. In any event it was not transmitted to the states.

On September 28, 1787 Congress unanimously passed a fifth resolution: "Resolved Unanimously that the said Report with the resolutions and letter accompanying the same be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case."

There is no record of what events occurred among members of Congress after the four resolutions of September 27, 1787 were introduced and voted on and defeated. There is no record who wrote the final resolution, who seconded it or why it was "unanimously" approved apparently without debate by Congress though it appears to be based on the Clarke resolution. However the final vote was arrived at, the language is conclusive. Congress officially (and unanimously) agreed in all aspects with the recommendations of the Federal Convention of 1787 and forwarded those recommendations to the states for their consideration. Unlike the previous four motions, all of which failed, the final language clearly shows agreement on the part of Congress with the proposed Constitution and its method of ratification thus satisfying the term "agreed" expressed in the Articles of Confederation.

This vote is conclusive as to the question of whether the Federal Convention of 1787 was a "runaway" convention as characterized by JBS/Eagle Forum. If Congress believed the convention exceeded the authority granted it in the February 21, 1787 call, Congress ultimately would have accepted Lee's resolution. There was a recorded vote which clearly shows Congress rejected the notion the Federal Convention of 1787 was a "runaway" convention. Thus, by official vote of Congress, as empowered by the Articles of Confederation to determine such questions Congress officially considered the question whether the Federal Convention of 1787 was a "runaway" convention and officially determined it was not.

If Congress believed Congress lacked authority in regards to proposing the Constitution then clearly Dane's resolution would have been accepted. However, in both cases Congress rejected these in favor of unanimously accepting the recommendations of the convention (and its proposed ratification mode) and ordered that the proposed Constitution be first sent to the state legislatures and then to conventions representative of the people.  This is exactly what occurred. Thus the states accepted the authority of Congress to propose the Constitution, establish the terms and conditions for its consideration and, by obvious implication, accepted the Federal Convention of 1787 was within its "scope" to propose the new Constitution. All of this was in accordance with the authority granted Congress in the Articles of Confederation.

Besides the legal effect of the binding clause in the Articles of Confederation, the pragmatic fact was those members of Congress deciding this question were the same members of Congress who issued the convention call on February 21, 1787. Thus these members fully understood what their resolution meant, its intent and what authority it conferred on the Federal Convention of 1787. Additionally, the convention, having adjourned only ten days before, all participants were alive and in full possession of their faculties. Many of the convention delegates served in Congress and had returned in time to participate in the September 27, 1787 debate. Thus first hand knowledge was available to all members of Congress.

The specific question of "scope" was answered by Congress with a 26-5 vote in favor of the convention. The ultimate response to the JBS/Eagle Forum allegation of a "runaway" convention was an official, unanimous vote by Congress which included the five dissenters who believed the convention proposal to be beyond its "scope." Thus the official vote by Congress addressing the question of a "runaway" convention done by the persons in the best position to make such a determination proves the JBS/Eagle Forum allegation of a "runaway" convention entirely false. As such a vote occurred in the first person by those directly involved in the events, their determination must be viewed as absolutely conclusive on the subject.

These facts of public record are ignored by JBS/Eagle Forum who contend it is "clear ... what happened in 1787 when the Constitution was written." The best that can be said for this "clear" view by JBS/Eagle Forum is its "clear" view of events in 1787 is wrong. To arrive at their "clear" view JBS/Eagle Forum ignore relevant facts of public record including the public law of 1787.

Allegations by JBS/Eagle the Federal Convention of 1787 exceeded its authority by proposing the Constitution and was therefore a "runaway" convention are false. Allegation the Federal Convention of 1787 had authority to "amend" the Articles of Confederation are false. There is nothing in the public record, nor has JBS/Eagle Forum ever presented evidence proving that
based on public record of the time, the Constitution was anything but legally ratified under the terms of national law of the time.

As the Federal Convention of 1787 was not a "runaway" convention but held strictly in compliance with the law of the time, there is no basis to assert an Article V Convention held today would be a "runaway" as there was no "runaway" convention in the first place.

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Page Last Updated: 9-APRIL 2017