The U.S. Constitution has language in it to provide for a method for the States (and not Congress) to call a convention to propose changes to the Constitution and then to affirm those changes at the State level without the Consent of the Federal Congress. It’s the ultimate failsafe against a runaway Federal government.
I’ve wondered – but never really researched, and certainly wasn’t taught – how it happened to be that the government operating under the Articles of Confederation wound up calling for a Constitutional Convention. Was there a provision in the Articles of Confederation that permitted calling a convention or was the Constitutional Convention an “extralegal” (outside the law) process, similar to the premise of the American Revolution that events can cause a people to “dissolve the political bonds that have connected them”?
That turns out to be the case. The first hint that something was happening was a meeting in Annapolis called by the State Legislature of Virginia at the urging of James Madison to discuss the country’s problems. Only 5 states sent representatives. Delegates from 4 states didn’t get there in time, and 4 States didn’t send anyone. The 12 people attending (including Madison) did however call for another meeting in Philadelphia to discuss amending the Articles of Confederation – which required all 13 states to agree to any change. Explain how people from 5 states out of 13 could meet outside the authority of the Congress of the Confederation (not to be confused with Confederacy) and call for a Convention other than “extralegally”… After the fact, in February of 1787 the Congress would adopt a motion to hold a meeting at Philadelphia at the same date, but without mentioning the Annapolis meeting. Rhode Island refused to attend, because it was generating toll revenue from the Post Road and saw no need to fund a Federal government with its revenue stream.
When that group convened, those opposed to a strong central government – including Patrick (“Give me Liberty or Give Me Death”) strongly opposed the entire premise of the Constitutional Convention as taking the country back down the path of a government that didn’t respect human liberty.
Having convinced the Convention to go beyond its mandate, Alexander Hamilton, John Jay and James Madison started flooding the public dialog with anonymous essays in several newspapers (the collection now called the “Federalist Papers”) explaining why they believed the states should vote to replace the Articles of Confederation with the Constitution.
The anti-Federalists were caught by surprise and did not have a series of essays pre-written to explain their opposition. Patrick Henry was probably the loudest opponent. One of his concerns was that giving the Senate the power to approve treaties that then became the law of the land – not subject to the rights in the Constitution or a vote of the House – was a power that was too dangerous.
So that’s the more messy account of how this Country officially was launched – it also explains what people mean when they say “be careful if you call a Convention to amend the Constitution – someone might whip out a secret document to completely replace the existing one”. It’s happened before.
The convention of 1787 was not extra legal and the author’s assumption the convention “slipped” something by is not factual either. History shows the states took many votes to decide about the new proposed Constitution. I suggest the author read the following article: http://www.nolanchart.com/article6449.html to learn about how the process did follow the Articles of Confederation. A detailed response would be too much here.
Suffice to say that under the rule of law at the time, the convention was legal. It followed the law. But that is not to say there were no loopholes in that law that the states and others took advantage of both to move the convention forward and to hold it in the first place. The most obvious hole is that Congress lacked any authority to call a convention which explains why they used a non-binding resolution. However as the article points out, no one was actually authorized to propose an alteration to the Articles so there was no violation. Indeed, the Articles were so badly written that Joe the bartender could have proposed an alteration and it would have been legal under the Articles if Congress and the states had agreed to it.
“extralegal” and “illegal” are not synonyms.