The State Resolutions Calling for the 1787 Philadelphia Convention

With Commentary

 Executive summary

The calls emanating from both the House and the Senate for a “Balanced budget amendment” to the Constitution sound very attractive, even responsible; many conservative state legislators have added their voices to the call that was also ringing in the early 1980’s.   Sadly, much of the support for an “amendments convention” or a “convention of the states” is based in a lack of historical understanding of the nature of the previous American conventions which issued forth Constitutional alterations, changes and, in the case of the 1787 Philadelphia Convention, complete replacement of the governing document of the young country.

 This paper analyzes the calls for convention made by the states during the time period of 1786-1787, and shows clearly two major facts:  1. The Articles of Confederation, enacted in 1781, were considered to be the “Constitution of government” or “the Foederal Constitution” by all of the states, and 2. The state calls, as well as the Federal resolution of Feb. 21, 1787,  were limited to dealing only with “the sole and express purpose of amending the Articles of Confederation”.

 This paper looks at the Annapolis Convention of 1786, showing that it is NOT a form of an Article V convention.  The conveners failed at their task as only 5 states bothered to attend (while even the host state, Maryland, chose not to send delegates).  The delegates realized they had no power to amend the Articles of Confederation regarding interstate commerce (the “exigencies of the union” which compelled the gathering and its predecessor the Mount Vernon Conference in the first place), but only to suggest changes to the Articles, and as such asked for a general convention in Philadelphia in the spring of 1787.

 This paper also analyzes why the state of Rhode Island refused to send delegates to the Philadelphia Convention, having sage wisdom regarding the nature and scope of power of a national Convention.  It also shows, which is reflected today in the rhetoric of supporters of an Article V convention, that Rhode Island made a critical error in assuming that the rules of adoption for the changes coming from Philadelphia would be governed by the Articles’ provision XIII, requiring unanimous consent of all the states to any alterations or changes in the “federal constitution”. 

 Rhode Island’s letter of Sept. 15, 1787 clearly pointed out the plenipotentiary nature of a national convention (…”we could not consistantly appoint Delegates in a Convention, which might be the means of dissolving the Congress of the Union and having a Congress without a Confederation”) and should serve as a clear warning to modern “amendments convention” supporters that much, if not all, of their “assurances” against the possibility of wholesale changes of our form of government are in effect the same mistake that Rhode Island made in their calculations.

 As we know full well from history, the new Constitution was ratified using the procedure spelled out in itself (9 of 13 states to ratify), only possible by the states in convention assembled removing themselves from the union under the Articles requiring unanimous ratification (a form of secession) and taking up the new governing document with its new ratification procedure.

 Today’s “balanced budget amendment” proponents need to read and understand from the history of the calls for the Philadelphia Convention that the adage rings true “Those who cannot remember the past are condemned to repeat it.”

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In 1786 a conference of state deputies was held at the invitation of the state of Virginia in Annapolis, Maryland. According to George Washington the purpose of the conference was to build on the success of the meeting in 1785 held at his Mt. Vernon home between deputies representing the states of Maryland and Virginia regarding commercial use and navigation of the Potomac River[1]. Historians usually neglect to mention that the results of the Mt. Vernon conference were a commercial treaty between two member states in the Confederation in blatant violation of Article VI of the Articles of Confederation- “…No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue… ^[2]”

It is not surprising that this fact is often forgotten or swept under the library rug of constitutional scholars. It throws a monkey wrench into the works of the historical narrative machinery of the Philadelphia constitutional convention. Both the Mt. Vernon Conference and the Annapolis Convention are touted as important evolutionary steps to the Philadelphia Convention. What these conferences were, in fact, were extra-legal attempts by the state of Virginia to bypass a Congress rendered impotent by the actions of a minority of states, often one state, often Rhode Island, in making necessary legislation to maintain a balance of trade between the member states[3]. This stagnation in the interstate commerce situation was made possible by Article XIII of the Articles of Confederation- “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. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State… [4]” States which had the advantage of deep water ports or control to access to those ports were reluctant to surrender their trade advantages and, more importantly, impost revenue to states who were dependent on them for access to international markets and goods.

In January 1786 Virginia, attempting to expand on its success in bypassing the Articles of Confederation at the Mt. Vernon conference, sent out an invitation to the other 12 states to attend a conference to be held at Annapolis.

A motion was made, that the House do come to the following resolution:

 Resolved, That Edmund Randolph, James Madison, jun. Walter Jones, Saint George Tucker and Meriwether Smith, Esquires, be appointed commissioners, who, or any three of whom, shall meet such commissioners as may be appointed by the other States in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States, such an act relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress, effectually to provide for the same[5].

 The meeting was held in September of 1786 and was not well attended. Only 5 states had arrived at the scheduled beginning of the conference- Virginia, New York, New Jersey, Pennsylvania, and Delaware. It is important to note that while the meeting was held in the state capitol of Maryland, she sent no delegates. Connecticut, Georgia and South Carolina also did not bother to appoint delegates[6]. The appointed delegates from the other 4 states simply could find no compelling reasons to appear. The delegates came to a realization that their small contingent really wielded no authority to recommend fixes to the Articles of Confederation. They agreed to adjourn the meeting after issuing a report to their respective states (with a carbon to Congress) calling for another commercial conference to be held in Philadelphia in May 1787.

 To the Honorable, the Legislatures of Virginia, Delaware Pennsylvania, New Jersey, and New York—

 The Commissioners from the said States, respectively assembled at Annapolis, humbly beg leave to report.

 That, pursuant to their several appointments, they met at Annapolis in the State of Maryland, on the eleventh day of September Instant, and having proceeded to a Communication of their powers; they found that the States of New York, Pennsylvania, and Virginia, had, in substance, and nearly in the same terms, authorised their respective Commissioners “to meet such Commissioners as were, or might be, appointed by the other States in the Union, at such time and place, as should be agreed upon by the said Commissioners to take into consideration the trade and Commerce of the United States, to consider how far an uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony, and to report to the several States, such an Act, relative to this great object, as when unanimously ratified by them would enable the United States in Congress assembled effectually to provide for the same”

 That the State of Delaware, had given similar powers to their Commissioners, with this difference only that the Act to be framed, in virtue of those powers, is required to be reported “to the United States in Congress Assembled, to be agreed to by them, and confirmed by the Legislatures of every State.”

 That the State of New Jersey had enlarged the object of their Appointment, empowering their Commissioners, “to consider how far an uniform system in their commercial regulations and other important matters, might be necessary to the common interest and permanent harmony of the several States.” and to report such an Act on the subject, as when ratified by them “would enable the United States in Congress—Assembled, effectually to provide for the exigencies of the Union.”

 That appointments of Commissioners have also been made by the States of New Hampshire, Massachusetts, Rhode Island, and North Carolina, none of whom however have attended; but that no information has been received by your Commissioners of any appointment having been made by the States of Connecticut, Maryland, South Carolina or Georgia.

 That the express terms of the powers to your Commissioners supposing a deputation from all the States, and having for object the Trade and commerce of the United States, Your Commissioners did not conceive it advisable to proceed on the business of their mission, under the Circumstance of so partial and defective a representation.

 Deeply impressed however with the magnitude and importance of the object confided to them on this occasion, Your Commissioners cannot forbear to indulge an expression of their earnest and unanimous wish. that speedy measures may be taken, to effect a general meeting, of the States, in a future Convention, for the same, and such other purposes, as the situation of public affairs, may be found to require.

 If in expressing this wish or in intimating any other sentiment, Your Commissioners should seem to exceed the strict bounds of their appointment, they entertain a full confidence, that a conduct, dictated by an anxiety for the welfare, of the United States, will not fail to receive an indulgent construction.

 In this persuasion, Your Commissioners submit an opinion, that the Idea of extending the powers of their Deputies, to other objects than those of Commerce which has been adopted by the State of New Jersey, was an improvement on the original plan, and will deserve to be incorporated into that of a future Convention, they are the more naturally led to this conclusion, as in the course of their reflections on the subject, they have been induced to think, that the power of regulating trade is of such comprehensive extent, and will enter so far into the general System of the foederal government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits may require a correspondent adjustment of other parts of the Foederal System.

 That there are important defects in the system of the Foederal Government is acknowledged by the Acts of all those States, which have concurred in the present Meeting; That the defects, upon a closer examination, may be found greater and more numerous, than even these acts imply, is at least so far probable, from the embarrassments which characterise the present State of our national affairs-foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode, which will unite the Sentiments and Councils of all the States. In the choice of the mode your Commissioners are of opinion,—that a Convention of Deputies from the different States, for the special and sole purpose of entering into this investigation and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a

preference from considerations which will occur, without being particularised.

 Your Commissioners decline an enumeration of those national circumstances on which their opinion respecting the propriety of a future Convention with more enlarged powers, is founded; as it would be an useless intrusion of facts and observations, most of which have been frequently the subject of public discussion, and none of which can have escaped the penetration of those to whom they would in this instance be addressed. They are however of a nature so serious, as, in the view of your Commissioners to render the situation of the United States delicate and critical, calling for an exertion of the united virtue and wisdom of all the members of the Confederacy.

 Under this impression, Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavours to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to-take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constituttion of the Foederal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress Assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State will effectually provide for the same.

 Though your Commissioners could not with propriety—address these observations and sentiments to any but the states they have the honor to Represent, they have nevertheless concluded from motives of respect, to transmit Copies of this report to the United States in Congress assembled, and to the executives of the other States.[7]

 Since the discussion at Annapolis was to be limited to interstate trade and commerce issues, the delegates felt that a discussion between the few attending states would be futile and have no weight in Congress. They therefore called for another conference in Philadelphia in May 1787. Many have attempted to extract more meaning from this report than was placed in it by the delegates. There is a persistent claim that “everyone knew” that this report was a call for a convention to eliminate of the Articles of Confederation in favor of a new constitution. This argument is refuted within the report. The first paragraph of the report chronicles the purpose of the Annapolis meeting which was- “…to take into consideration the trade and Commerce of the United States, to consider how far an uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony, and to report to the several States, such an Act, relative to this great object, as when unanimously ratified by them would enable the United States in Congress in Congress assembled effectually to provide for the same …” In other words the delegates were limited to discussion interstate trade and commerce issues and nothing else. They were not plenipotentiaries but state delegations who were to report the proceedings to their respective state legislatures to gauge the mood for finally changing the Articles of Confederation to meet the needs of the new republic, something that had not been allowed by one state or another since 1781. The Annapolis Convention was a conference designed to suggest amendments to the Articles.

It is important to understand the section in the report calling for another meeting in context. One state, New Jersey, had expanded the authority of its delegates to discuss “…other important matters, [which] might be necessary to the common interest and permanent harmony of the several States…” The delegates used similar phrasing as part of their meeting call in an attempt to convince the states (if not Congress) to expand the authority of their delegations beyond trade and interstate commerce issues. But they made this call to fall within the framework of the existing constitution “…to devise such further provisions as shall appear to them necessary to render the constituttion of the Foederal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress Assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State will effectually provide for the same.” In other words this call was for a meeting of state delegates to suggest amendments to the Articles of Confederation which was the “constitution of the Federal Government” in 1786. This was no call of plenipotentiaries for creating a new constitution.

 The Virginia Resolution

Within weeks several states, keying off this report, began to pass resolutions to appoint delegations to the Philadelphia convention. Virginia’s is the most complex, not surprisingly-

 Act Authorizing the Election of Delegates, 23 November [1786]

 An ACT for appointing DEPUTIES from this Commonwealth to a CONVENTION proposed to be held in the City of Philadelphia in May next, for the purpose of revising the FEDERAL CONSTITUTION.

 Section I. Whereas the Commissioners who assembled at Annapolis, on the fourteenth day of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectually for the Commercial Interests of the United States, have represented the necessity of extending the revision of the Federal System to all its defects; and have recommended that Deputies for that purpose be appointed by the several Legislatures, to meet in Convention in the City of Philadelphia, on the second day of May next; a provision which seems preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would besides be deprived of the valuable counsels of sundry individuals, who are disqualified by the Constitution or Laws of particular States, or restrained by peculiar circumstances from a seat in that Assembly: And whereas the General Assembly of this Commonwealth, taking into view the actual situation of the Confederacy, as well as reflecting on the alarming representations made from time to time by the United States in Congress, particularly in their Act of the fifteenth day of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question, whether they will by wise and magnanimous efforts reap the just fruits of that Independence, which they have so gloriously acquired, and of that Union which they have cemented with so much of their common blood; or whether by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution, and furnish to its enemies an eventual triumph over those by whose virtue and valour it has been accomplished: And whereas the same noble and extended policy, and the same fraternal and affectionate sentiments, which originally determined the Citizens of this Commonwealth to unite with their brethren of the other States in establishing a Federal Government, cannot but be felt with equal force now, as motives to lay aside every inferior consideration, and to concur in such further concessions and provisions, as may be necessary to secure the great objects for which that Government was instituted, and to render the

United States as happy in peace, as they have been glorious in war:

 Sect. II. BE it therefore enacted by the General Assembly of the Commonwealth of Virginia, That seven Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized as Deputies from this Commonwealth, to meet such Deputies as may be appointed and authorised by other States, to assemble in Convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions, as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an Act for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same.

 Sect. III. AND be it further enacted, That in case of the death of any of the said Deputies, or of their declining their appointments, the Executive are hereby authorised to supply such vacancies. And the Governor is requested to transmit forthwith a copy of this Act to the United States in Congress, and to the Executives of each of the States in the Union.[8]

 Most of the 5 state resolutions that follow are more concise and contain somewhat different language.

  The New Jersey Resolution

 Resolution Authorizing and Empowering the Delegates, 24 November [1786]

 Resolved, That the Honorable David Brearley, William C. Houston, William Paterson and John Neilson, esquires, commissioners appointed on the part of this state, or any three of them, be, and they hereby are authorized and empowered to meet such commissioners as have been or may be appointed by the other states in the Union at the city of Philadelphia, in the commonwealth of Pennsylvania, on the second Monday in May next, for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such further provisions as shall appear necessary to render the Constitution of the federal government adequate to the exigencies thereof.[9]

  The Pennsylvania Resolution

 Pennsylvania, following Virginia’s lead, also issues a more complex resolution.

 Act Electing and Empowering Delegates, 30 December [1786]

 

An ACT appointing Deputies to the Convention, intended to be held in the City of Philadelphia, for the purpose of revising the Foederal Constitution.

 Sect. I. Whereas the General Assembly of this Commonwealth, taking into their serious consideration the representations heretofore made to the Legislatures of the several States in the Union, by the United States in Congress assembled; and also weighing the difficulties under which the Confoederated States now labour, are fully convinced of the necessity of revising the Foederal Constitution, for the purpose of making such alterations and amendments as the exigencies of our public affairs require: And whereas the Legislature of the state of Virginia have already passed an act of that Commonwealth, impowering certain commissioners to meet at the city of Philadelphia, in May next, a convention of commissioners, or deputies, from the different states; and the Legislature of this state are fully sensible of the important advantages which may be derived to the United States, and every of them, from co-operating with the commonwealth of Virginia, and the other states of the confederation, in the said design.

 Sect. II. Be it enacted, and it is hereby enacted by the Representatives of the Freemen of the Commonwealth of Pennsylvania in General Assembly met, and by the authority of the same, That Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimons, James Wilson and Governeur Morris, Esquires, are hereby appointed deputies from this state to meet in the convention of the deputies of the respective states of North-America, to be held at the city of Philadelphia, on the second day of the month of May next. And the said Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimons, James Wilson and Governeur Morris, Esquires, or any four of them are hereby constituted and appointed deputies from this state, with powers to meet such deputies as may be appointed and authorised by the other states to assemble in the said convention at the city aforesaid, and to join with them in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the foederal constitution fully adequate to the exigencies of the Union; and in reporting such act or acts for that purpose, to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same.

 Sect. 3. And be it further enacted by the authority aforesaid, That in case any of the said deputies, hereby nominated, shall happen to die, or to resign his or their said appointment or appointments, the Supreme Executive Council shall be and hereby are empowered and required to nominate and appoint other person or persons in lieu of him or them so deceased, or who has or have so resigned; which person or persons, from and after such nomination and appointment, shall be, and hereby are declared to be vested with the same powers respectively, as any of the deputies nominated and appointed by this act, is vested with by the same. Provided always, that the Council are not hereby authorised, nor shall they make any such nomination or appointment, except in vacation, and during the recess of the General Assembly of this state.[10]

 The North Carolina Resolution

 Act Authorizing the Election of Delegates, 6 January [1787]

 An Act for appointing Deputies from this state, to a convention proposed to be held in the city of Philadelphia in May next, for the purpose of revising the foederal constitution. Whereas in the formation of the foederal compact which frames the bond of union of the American states, it was not possible in the infant state of our republics to devise a system which in the course of time and experience would not manifest imperfections that it would be necessary to reform. And whereas the limited powers which by the articles of confederation are vested in the Congress of the United States, have been found far inadequate to the enlarged purposes which they were intended to produce. And whereas Congress hath by repeated and most urgent representations, endeavoured to awaken this and the other states of the union, to a sense of the truly critical and alarming situation into which they must be unavoidably cast, unless measures are forthwith taken to enlarge the powers of Congress, that they may thereby be enabled to avert the dangers which threaten our existence as a free and independent people. And whereas this state hath been ever desirous to act upon the enlarged system of the general good of the United States, without bounding its views to the narrow and selfish object of partial convenience, and has been at all times ready to make every concession to the safety and happiness of the whole, which justice and sound policy could vindicate:

I. Be it therefore enacted by the General Assembly of the state of North-Carolina, and by the authority of the same, That five Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorised as Deputies from this state, to meet at Philadelphia on the first day of May next, then and there to meet and confer with such Deputies as may be appointed by the other states for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our foederal union, and to procure the enlarged purposes which it was intended to effect, and that they report such an act to the General Assembly of this state, as when agreed to by them, will effectually provide for the same.

 II. And be it further enacted, That in case of the death or resignation of any of the said Deputies, or of their declining their appointments, his Excellency the Governor for the time being, is hereby authorised to supply such vacancies, and the Governor is required to transmit forthwith a copy of this act to the United States in Congress assembled, and to the executives of each of the states in the union.[11]

 The Delaware Resolution

 An important consideration at this point is an understanding of what some of the “important defects” in the Articles of Confederation were being referred to in the Annapolis Convention report. Larger states like Virginia, Massachusetts, and Pennsylvania did not like the fact that having larger populations they were required to pay a larger portion of the imposts that Congress imposed on the states, according to population (apportionment) to meet federal expenses. They believed that more money paid should have translated to a stronger voice in Congress. Some of the smaller states seem to have been unaware of this attached meaning to the phrase and jumped on the bandwagon for the Philadelphia convention early. The Delaware legislature seems to have understood that there was a move afoot to deprive them of equal representation in Congress, a fact that Luther Martin, a delegate from Maryland would later confirm in his report on the proceedings of the Convention to the Maryland legislature.

 “You have heard, Sir, the resolutions which were brought forward by the honorable member from Virginia; let me call the attention of this House to the conduct of Virginia, when our confederation was entered into — That State then proposed, and obstinately contended, contrary to the sense of, and unsupported by the other States, for an inequality of suffrage founded on numbers, or some such scale, which should give her, and certain other States, influence in the Union over the rest. Pursuant to that spirit which then characterized her, and uniform in her conduct, the very second resolve, is calculated expressly for that purpose, to give her a representation proportioned to her numbers, as if the want of that was the principal defect in our original system [emphasis added], and this alteration the great means of remedying the evils we had experienced under our present government.

 The object of Virginia, and other large States, to increase their power and influence over the others, did not escape observation; the subject, however, was discussed with great coolness, in the committee of the whole House (for the convention had resolved itself into a committee of the whole, to deliberate upon the propositions delivered in by the honorable member from Virginia). Hopes were formed, that the farther we proceeded in the examination of the resolutions, the better the House might be satisfied of the impropriety of adopting them, and that they would finally be rejected by a majority of the committee; if, on the contrary, a majority should report in their favor, it was considered, that it would not preclude the members from bringing forward and submitting any other system to the consideration of the convention; and accordingly, while those resolves were the subject of discussion in the committee of the whole House, a number of the members, who disapproved them, were preparing another system, such as they thought more conducive to the happiness and welfare of the States.”[12]

 The last portion of section I of the resolution states Delaware’s conditions plainly by quoting Article V of the Articles in part- “…So always and provided, that such Alterations, or further Provisions, or any of them, do not extend to that Part of the Fifth Article of the Confederation of the said States, finally ratified on the first Day of March, in the Year One Thousand Seven Hundred and Eighty-one, which declares, that “in determining Questions in the United States in Congress assembled, each State shall have one Vote.””[13] Delaware was demanding that any amendments to the Articles of Confederation, the “Foederal Constitution,” not affect Article V or the way it functioned. From this evidence it is easy to deduce that the large states viewed the “important defects in the system of the Foederal Government” very differently than the small states.

 Act Electing and Empowering Delegates, 3 February [1787]

 An ACT appointing Deputies from this State to the Convention, proposed to be held in the City of Philadelphia, for the Purpose of revising the Foederal Constitution.

 Whereas the General Assembly of this State are fully convinced of the Necessity of revising the Foederal Constitution, and adding thereto such further Provisions as may render the same more adequate to the Exigencies of the Union; and whereas the Legislature of Virginia have already passed an Act of that Commonwealth, appointing and authorizing certain Commissioners to meet, at the City of Philadelphia, in May next, a Convention of Commissioners or Deputies from the different States: And this State being willing and desirous of co-operating with the Commonwealth of Virginia, and the other States in the Confederation, in so useful a Design;

 Sect. 1. BE IT THEREFORE ENACTED by the General Assembly of Delaware, That George Read, Gunning Bedford, John Dickinson, Richard Bassett, and Jacob Broom, Esquires, are hereby appointed Deputies from this State to meet in the Convention of the Deputies of other States, to be held at the City of Philadelphia on the Second Day of May next. And the said George Read, Gunning Bedford, John Dickinson, Richard Bassett, and Jacob Broom, Esquires, or any Three of them, are hereby constituted and appointed Deputies from this State, with Powers to meet such Deputies as may be appointed and authorized by the other States to assemble in the said Convention at the City aforesaid, and to join with them in devising, deliberating on, and discussing, such Alterations and further Provisions, as may be necessary to render the Foederal Constitution adequate to the Exigencies of the Union; and in reporting such Act or Acts for that Purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several States, may effectually provide for the same: So always and provided, that such Alterations, or further Provisions, or any of them, do not extend to that Part of the Fifth Article of the Confederation of the said States, finally ratified on the first Day of March, in the Year One Thousand Seven Hundred and Eighty-one, which declares, that “in determining Questions in the United States in Congress assembled, each State shall have one Vote.”

 Sect. 2. AND BE IT ENACTED, That in case any of the said Deputies, hereby nominated, shall happen to die, or to resign his or their Appointment, the President or Commander in Chief, with the Advice of the Privy-Council, in the Recess of the General Assembly, is hereby authorized to supply such Vacancies.[14]

 The Georgia Resolution

 Act Electing and Empowering Delegates, 10 February [1787]

 AN ORDINANCE For the Appointment of Deputies from this State for the Purpose of revising the Federal Constitution.

 Be it ordained by the Representatives of the Freemen of the State of Georgia, in General Assembly met, and by the authority of the same, That William Few, Abraham Baldwin, William Pierce, George Walton, William Houstoun, and Nathaniel Pendleton, Esquires, be, and they are hereby appointed commissioners, who, or any two or more of them, are hereby authorised as deputies from this state to meet such deputies as may be appointed and authorised by other states, to assemble in convention at Philadelphia, and to join with them in devising and discussing all such alterations and farther provisions, as may be necessary to render the federal constitution adequate to the exigencies of the union, and in reporting such an Act for that purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same. In case of the death of any of the said deputies, or of their declining their appointments, the Executive are hereby authorized to supply such vacancies.[15]

 A Change in Language

 At this point the language of the state resolutions changes drastically. In late February, 1787 Congress passed a resolution asking the states to send delegations to Philadelphia “…for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.[16]“ The “sole and express purpose” phrasing makes it clear that this Congress is asking for and authorizing an amendments convention ONLY.  Instead of using the more ambiguous language of Virginia’s resolution as a model for their resolutions most of the remaining states use the restrictive federal resolution language as their model.

 The Federal Congressional Resolution

 Confederation Congress Calls the Constitutional Convention, 21 February 1787

 “Whereas there is provision in the Articles of Confederation and perpetual Union for making alterations therein by the assent of a Congress of the United States and of the legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the states and particularly the state of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and such convention appearing to be the most probable mean of establishing in these states a firm national government.

 “Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the Union.[17]”

The New York Resolution

 Assembly and Senate Authorize Election of Delegates, 26–28 February [1787]

 THE ASSEMBLY, 26 February

 Resolved (if the honorable the Senate concur herein), That five delegates be appointed on the part of this state, to meet such delegates as may be appointed on the part of the other states respectively, on the second Monday in May next, at Philadelphia, for the sole and express purpose of revising the Articles of Confederation and reporting to Congress, and to the several legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the several states, render the federal constitution adequate to the exigencies of government and the preservation of the Union; and that in case of such concurrence, the two houses of the legislature will meet, on Thursday next, at such place as the honorable the Senate shall think proper, for the purpose of electing the said delegates, by joint ballot.

 Ordered, That Mr. John Livingston deliver a copy of the last preceding resolution to the honorable the Senate.

 THE SENATE, 28 February

 [A resolution was offered which copied the House resolution of 26 February, except for two changes: (1) the election was to be held on the following Tuesday instead of Thursday and (2) the delegates were to be elected in the manner provided by the state constitution for the election of delegates to Congress; that is by the two houses balloting separately rather than jointly.]

 Which resolution having been read, Mr. Haring moved that instead of five, that three delegates be appointed for the purposes set forth in the said resolution. Debates arose, and the question being put thereon, it was carried in the affirmative, in manner following, viz.:

 For the affirmative. Mr. Yates, Mr. Tredwell, Mr. Haring, Mr. Ward, Mr. Russell, Mr. Hopkins, Mr. Swartwout, Mr. Hathorn, Mr. Humfrey, Mr. Parks, Mr. Williams. For the negative. Mr. Stoutenburgh, Mr. Vanderbilt, Mr. Townsend, Mr. Morris, Mr. Peter Schuyler, Mr. L’Hommedieu, Mr. Philip Schuyler.

 Mr. Haring then moved to expunge, after the words “Tuesday next” to the end of the resolution, and to substitute the following, viz.: “Meet at such place as the honorable the Assembly shall think proper for the purpose of electing the said delegates by joint ballot.” Debates arose, and the question being put thereon, it was carried in the negative, in manner following viz.:

For the negative. Mr. Stoutenburgh, Mr. Tredwell, Mr. Vanderbilt, Mr. Townsend, Mr. Morris, Mr. Peter Schuyler, Mr. Swartwout, Mr. L’Hommedieu, Mr. Humfrey, Mr. Parks, Mr. Williams, Mr. Philip Schuyler.

 For the affirmative. Mr. Yates, Mr. Haring, Mr. Ward, Mr. Russell, Mr. Hopkins, Mr. Hathorn.

 Mr. Yates then moved to insert in the said resolution, after the words “and provisions therein,” the following, viz.: “not repugnant to or inconsistent with the constitution of this state.” Debates arose, and the question being put thereon, it was carried in the negative, in manner following, viz.:

 For the negative. Mr. Stoutenburgh, Mr. Tredwell, Mr. Vanderbilt, Mr. Townsend, Mr. Morris, Mr. Peter Schuyler, Mr. L’Hommedieu, Mr. Williams, Mr. Philip Schuyler.

 For the affirmative. Mr. Yates, Mr. Haring, Mr. Ward, Mr. Russell, Mr. Hopkins, Mr. Swartwout, Mr. Hathorn, Mr. Humfrey, Mr. Parks.

 The Senate being equally divided upon the question, His Honor the President [Pierre Van Cortlandt] voted in the negative. Thereupon,

 Resolved (if the honorable the Assembly concur herein), That three delegates be appointed on the part of this state, to meet such delegates as may be appointed on the part of the other states respectively, on the second Monday in May next at Philadelphia for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and to the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the several states, render the federal constitution adequate to the exigencies of government and the preservation of the Union; and that in case of such concurrence the two houses of the legislature will on Tuesday next, proceed to nominate and appoint the said delegates in like manner as is directed by the constitution of this state, for nominating and appointing delegates to Congress.

 Ordered, That Mr. Williams deliver a copy of the preceding resolution to the honorable the Assembly.

 THE ASSEMBLY, 28 February

 Resolved, That the House do concur with the honorable the Senate, in the said resolution.

 Ordered, That Mr. Dongan deliver a copy of the last preceding resolution of concurrence, to the honorable the Senate.[18]

The Massachusetts Resolution

 House Resolution of 7 March Repealing the Resolution of 22 February [1787]

 Whereas on the 22d day of February 1787, it was, by the Legislature of this Commonwealth, Resolved, that five Commissioners be appointed by the General Assembly, who, or any three of whom, were empowered to meet such Commissioners as are or may be appointed by the Legislatures of the other States in the Union at Philadelphia on the second day of May next for purposes mentioned in said resolution—

 Resolved, that the said resolve, & every part thereof be, & it is hereby repealed—

 Resolved, that the Secretary be, & he is hereby directed not to publish or print this, or the first mentioned resolve, any resolve or order to the contrary notwithstanding—

 House Substitute of 7 March for the Resolution of 22 February [1787]

 Whereas Congress did on the 21st day of February 1787 Resolve, “that in the opinion of Congress it is expedient that on the second monday in May next a Convention of Delegates who shall have been appointed by the several States to be held at Philadelphia, for the sole & express purpose of revising the articles of Confederation, and reporting to Congress & the several Legislatures, such alterations & provisions therein, as shall when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigences of Government; & the preservation of the Union”—

 And Whereas the Legislature of this Commonwealth did on the third day of this present month elect the honorable Francis Dana, Elbridge Gerry, Nathaniel Gorham, Rufus King, and Caleb Strong esquires, Delegates, or any three of them to attend and represent this Commonwealth at the aforesaid Convention, for the sole & express purpose mentioned in the aforerecited resolve of Congress—

 Resolved that his excellency the Governour be, & he hereby is requested to grant to the said Francis Dana, Elbridge Gerry, Nathaniel Gorham, Rufus King & Caleb Strong esqrs a commission agreably to said resolution of Congress

 Senate Amendment to the House Substitute, 9 March [1787]

 And it is further Resolved, that the Said Delegates on the part of this Commonwealth be, and they are hereby instructed not to acceed to any alterations or additions that may be proposed to be made in the present Articles of Confederation, which may appear to them, not to consist with the true republican Spirit and Genius of the Said Confederation: and particularly that they by no means interfere with the fifth of the Said Articles which provides, “for the annual election of

Delegates in Congress, with a power reserved to each State to recal its Delegates, or any of them within the Year & to send others in their stead for the remainder of the year—

 And which also provides, that no person shall be capable of being a Delegate for more than three years in any term of six years, or being a Delegate shall be capable of holding any Office under the United States for which he or any other for his benefit, receives any salary, fees, or emolument of any kind”—

 Ordered that the Secretary serve the aforenamed Delegates, severally, and such others as may hereafter be appointed in their stead with an attested copy of the last foregoing resolve—[19]

 The South Carolina Resolution

Act Authorizing the Election of Delegates, 8 March [1787]

 AN ACT For appointing deputies from the state of South-Carolina to a convention of the united states of America, proposed to be held in the city of Philadelphia in the month of May. one thousand seven hundred and eighty-seven for the purpose of revising the federal constitution.

 WHEREAS the powers at present vested in the united states in congress assembled, by the articles of confederation and perpetual union of the said states, are found by experience greatly inadequate to the weighty purposes they were originally intended to answer, and it is become absolutely necessary to the welfare of the confederate states that other and more ample powers in certain cases should be vested in and exercised by the said united states in congress assembled, and also that the articles of confederation and perpetual union of the united states should be revised, in order to remedy defects, which at their original formation in the time of war and general tumult could not be foreseen nor sufficiently provided against: AND WHEREAS this state is and ever hath been ready and willing to co-operate with the other states in union, in devising and adopting such measures as will most effectually ensure the peace and general welfare of the confederacy:

 Be it enacted by the honorable the senate and house of representatives now met and sitting in general assembly, and by the authority of the same, THAT five commissioners be forthwith appointed by joint ballot of the senate and house of representatives, who or any three or more of them, being first duly commissioned by his excellency the governor for the time being, under his hand and the great seal of the state, by virtue of this act. shall be and are hereby authorised as deputies from this state. to meet such deputies or commissioners as may be appointed and authorised by other of the united states, to assemble in convention at the city of Philadelphia in the month of May next after passing this act. or as soon thereafter as may be, and to join with such deputies or commissioners, they being duly authorised and impowered in devising and discussing all such alterations, clauses, articles and provisions as may be thought necessary to render the foederal constitution entirely adequate to the actual situation and future good government of the confederated states, and that the said deputies or commissioners, or a majority of those who shall be present, provided the state be not represented by less than two, do join in reporting such an act to the united states in congress assembled, as when approved and agreed to by them, and duly ratified and confirmed by the several states, will effectually provide for the exigencies of the union.

 In the Senate house, the eighth day of March, in the year of Lord one thousand seven hundred and eighty-seven, and in the eleventh year of the independence of the united states of America.[20]

 The Connecticut Resolution

 Act Electing and Empowering Delegates, 17 May [1787]

 An Act for appointing Delegates to meet in a Convention of the States, to be held at the City of Philadelphia, on the 2d. Monday of May instant.

 Whereas the Congress of the United States, by their Act of the 21st of February 1787, have recommended that on the 2d Monday of May instant, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole & express Purpose of revising the Articles of Confederation.

 Be it enacted by the Governor Council & Representatives in General Court assembled, and by Authority of the same—

 That the Honble William S. Johnson, Roger Sherman & Oliver Ellsworth Esqrs be, and they hereby are, appointed Delegates to attend the sd Convention, and are requested to proceed to the City of Philadelphia for that Purpose, without Delay, and the said Delegates, and in Case of Sickness or Accident, such one or more of them, as shall actually attend the said Convention, is and are hereby authorized and impowered to represent this State therein, & to confer with such Delegates appointed by the several States, for the Purposes mentioned in the sd Act of Congress, that may be present and duly empowered to act in said Convention, and to discuss upon such Alterations and Provisions, agreeable to the general Principles of Republican Government, as they shall think proper, to render the foederal Constitution adequate to the Exigencies of Government, and the Preservation of the Union; and they are further directed, pursuant to the said Act of Congress, to report such Alterations and Provisions, as may be agreed to, by a Majority of the united States represented in Convention, to the Congress of the United States, and to the General Assembly of this State.[21]

 The Maryland Resolution

Note here that the Philadelphia convention had already started when Maryland passed its resolution appointing delegates to it. This became an issue later when Maryland received a report from one of its delegates to the convention, Luther Martin. Martin complained that by the time delegates from Maryland had arrived and been seated the convention rules were set, including the secrecy provisions and the discarding of the Articles of Confederation in favor of a “national” government which he then describes in disapproving terminology. The system he outlines in that report is the “Virginia Plan,” Madison’s original design for the new government.[22]

 Act Electing and Empowering Delegates, 26 May [1787]

 An ACT for the appointment of, and conferring powers in, deputies from this state to the federal convention.

 Be it enacted, by the general assembly of Maryland, That the honourable James McHenry, Daniel of Saint Thomas Jenifer, Daniel Carroll, John Francis Mercer, and Luther Martin, Esquires, be appointed and authorised, on behalf of this state, to meet such deputies as may be appointed and authorised by any other of the United States to assemble in convention at Philadelphia, for the purpose of revising the federal system, and to join with them in considering such alterations, and further provisions, as may be necessary to render the federal constitution adequate to the exigencies of the union, and in reporting such an act for that purpose to the United States in congress assembled, as, when agreed to by them, and duly confirmed by the several states, will effectually provide for the same; and the said deputies, or such of them as shall attend the said convention, shall have full power to represent this state for the purposes aforesaid; and the said deputies are hereby directed to report the proceedings of the said convention, and any act agreed to therein, to the next session of the general assembly of this state.[23]

 The New Hampshire Resolution

 By the time New Hampshire appointed its delegates the convention had been in session for over a month. Clearly, this is a very broadly worded resolution, but note that it defers to the limited authority of the other state delegates and requires that anything created by the convention be approved first by Congress then the states. It is possible that the supposedly iron-clad secrecy of the Philadelphia convention was not completely airtight and that some word had leaked to the New Hampshire legislature about what was transpiring there. The New Hampshire legislature, if it had some knowledge of what was transpiring, may have been acquiescing to what was already a fait accompli in creating a new form of government.

 Act Electing and Empowering Delegates, 27 June [1787]

 An Act for Appointing Deputies from This State to the Convention, Proposed to Be Holden in the City of Philadelphia in May 1787 for the Purpose of Revising the Federal Constitution

 Whereas in the formation of the federal compact, which frames the bond of union of the amirican-states, it was not possible in the infant state of our republic to devise a system which in the course of time and experiance, would not manifest imperfections, that it would be necessary to reform.

 And Whereas, the limited powers, which by the articles of confederation are vested in the Congress of the united states, have been found far inadequate to the enlarged purposes which they were intended to produce.

And whereas Congress hath, by repeated and most urgent representations, endeavoured to awaken this, and other states of the union, to a sense of the truly critical, and alarming situation, in which they may inevitably be involved, unless timely measures be taken to enlarge the powers of Congress, that they may thereby be enabled, to avert the dangers which threaten our existance, as a free and independant people.

 And whereas, this state hath been ever desireous to act upon the liberal system of the general good of the united states, without circumscribing its views to the narrow, and selfish objects, of partial convenience; and has been at all times ready to make every concession to the safety and happiness of the whole, which justice and sound policy could vindicate—

 Be it therefore enacted by the Senate and House of Representatives in general court convened, that John Langdon, John Pickering, Nicholas Gilman, and Benjamin West Esqrs be, and hereby are, appointed Commissioners; they, or any two of them, are hereby authorized, and impowered, as Deputies from this State to meet at Philadelphia said Convention, or any other place to which the said Convention may be adjourned; for the purposes aforesaid, there to confer with such deputies, as are, or may be appointed by the other States for similar purposes; and with them to discuss and decide upon the most effectual means to remedy the defects of our federal union; and to procure, and secure, the enlarged purposes which it was intended to effect, and to report such an act, to the United States in Congress, as when agreed to by them, and duly confirmed by the several States, will effectually provide for the same—[24]

 Rhode Island’s Explanation

 Near the end of the Philadelphia convention the Rhode Island legislature was, if this resolution is any indicator, feeling the heat from the other 12 states regarding its reluctance to send delegates to the convention. The Rhode Island legislature therefore passed a resolution as a vehicle for justifying its position. They argue that their motivations “…were actuated by that great principle which hath ever been the Characteristic of this State, the Love of true Constitutional liberty, and the fear we have of making innovations on the Rights and Liberties of the Citizens at large…” The legislators demonstrate also their understanding of both what is transpiring in Philadelphia (another evidence that the iron-clad secrecy of the convention may not have been necessarily airtight) and why they were justified in not sending delegates. The 7^th paragraph reveals that Rhode Island legislators understand the implications of Article XIII of the Articles of Confederation. It is clear from this paragraph that they believe they have prevented the dissolution of the old compact by refusing to participate in a convention to alter it. They believed they were shielded by the unanimous consent requirement for changes.

The legislators also cite an important principle that comes into play when evaluating arguments claiming that an “amendments convention” or a “convention of the states” is somehow different from a “constitutional convention.” They demonstrate an understanding that a convention called by the law-making bodies within a body-politic, including the highest such body in that body-politic, with credentialed delegates for the purpose of altering the form of government (“…for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the Union…”), even yoked with restrictive language, is, in fact, a plenipotentiary body with higher authority than the bodies that appointed them. But how can this be?

A convention appointed to make alterations to the way a government functions must be a higher authority than a legislature. A convention is a body with a fiduciary responsibility to the body-politic it represents and not to the legislative body which appoints it. A body-politic is defined by John Randolph Tucker, a constitutional scholar and author of the 19^th century, in this way “…the Body-politic is not the Government, nor the persons admitted to participate in the functions of Government — but it is the whole body of persons politically associated…”[25] It is as simple as this from the resolution “…As the Freemen at large here have the Power of electing Delegates to represent them in Congress, we could not consistantly appoint Delegates in a Convention, which might be the means of dissolving the Congress of the Union and having a Congress without a Confederation…” Conventions make laws that legislative, executive and judicial officers must obey. Therefore, they are necessarily higher law-making bodies, and cannot be bound by those lower bodies, lest those lower bodies simply use hand selected delegates to create for themselves powers and privileges reserved to the body-politic. The Rhode Island legislature grasped this.

But in this deeper understanding of the powers and responsibilities of a convention the Rhode Island legislators missed an important insight. They clearly believed that they could have been the one state who could checkmate the acceptance of either an amended Articles of Confederation or a new form of government by simply refusing to participate. And by the restrictions of Article XIII they were correct. But they did not grasp the deeper significance of their own argument. In thinking this through, they forgot that there was an escape hatch for the other 12 states, which is the route they used to get the new constitution ratified. They forgot that as a higher law-making body the convention had the power to create a new ratification procedure. They also had the power to require that the states wishing to ratify the new constitution do so by state convention. Why a convention? Because ONLY the convention has the authority to dissolve its bond to the old union in order to form a new one. And this is exactly what happened. Rhode Island held out for nearly 3 years after the 9 states required in Article VI of the Constitution had ratified. They discovered being a discontinuous union of 2 states (North Carolina did not ratify until after the new government was already operating) then 1 state was no union at all.

 RHODE ISLAND’S REASONS FOR REFUSAL TO APPOINT DELEGATES, 15 September 1787

 General Assembly to the President of Congress

 State of Rhode-Island & Providence Plantations. In General Assembly September Session AD 1787.

 Sir, Permit the Legislative of this State to address you on a Subject Which has engaged the attention of the confederated Union; the singularity of our not sending forward to the Convention at Philadelphia, Delegates to represent us there, agreeably to a Resolution of Congress passed the 21st February AD 1787, for the purpose of revising the Articles of Confederation. Our conduct has been reprobated by the illiberal, and many severe and unjust sarcasmes propagated against us, but Sir, when we State to you the reason, and evince the Cause the liberal mind will be convinced that we were actuated by that great principle which hath ever been the Characteristic of this State, the Love of true Constitutional liberty, and the fear we have of making innovations on the Rights and Liberties of the Citizens at large.

 Our conduct during the late trying contest, has shewn forth conspicuous, that it was not from sinister motives but to pervade over the whole. And we presume Sir, that we shall be enabled to fix the same sentiments now.

 Your Hon. Body informed us that the Powers invested in Congress for the Regulation of Trade were not sufficient for the purpose of the great national Regulations requisite, we granted you by an Act of our State the whole and sole power of making such Laws as would be effectual for that purpose, other States not passing similar laws it had no effect.

 An impost was like wise granted but other States in the Union not acceding thereto that measure has proved abortive,–The Requisition [i.e., Resolution] of the 21st Feby last hath not been acceded too, because, we conceived that as a Legislative Body, we could not appoint Delegates, to do that which only the People at large are intitled to do; by a Law of our State the Delegates in Congress are chosen by the Suffrages of all the Freemen therein and are appointed to represent them in Congress; and for the Legislative body to have appointed Delegates to represent them in Convention, when they cannot appoint Delegates in Congress, (unless upon the Death or other incident matter) must be absurd; as that Delegation in Convention is for the express purpose of

altering a Constitution, which the people at large are only capable of appointing the Members.

 By the 13th. Article in the Confederation “every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of Confederation shall be inviolably observed by every State and the Union shall be perpetual; nor shall any alteration at any time be made in any of them unless such alteration be agreed to in a Congress of the United States and be afterwards confirmed by the Legislatures of every State.”–As the Freemen at large here have the Power of electing Delegates to represent them in Congress, we could not consistantly appoint Delegates in a Convention, which might be the means of dissolving the Congress of the Union and having a Congress without a Confederation.–You will impute it Sir, to our being diffident of power and an apprehension of dissolving a compact, which was framed by the Wisdom of Men who gloried in being instrumental in preserving the Religious and Civil rights of a Multitude of people, and an almost unbounded territory, that said Requisition hath not been complied with, and fearing when the Compact should once be broken we must all be lost in a Common ruin.

 We shall ever esteem it a pleasure to join with our Sister States in being instrumental in what ever may be advantageous to the Union, and to add strength and permanance thereto, upon Constitutional principles.

We are Sir, with every sentiment of respect and Esteem,

 Your very obedt. Servts Signed at the request of the General Assembly[26]

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