As perhaps you’ve noticed throughout this series of articles on the events of the Constitutional Convention of 1787, clauses — important clauses — were agreed upon by delegates, only to be completely rewritten when this or that committee was assigned to compile a complete draft of the approved provisions.
It is this unassailable historical truth that gives pause to many thoughtful and educated constitutionalists when the issue comes up of the purported safety of an “amendments convention” or “Article V convention” or “convention of the states” or whatever name the proponents adopt for their desired convention aimed at amending the U.S. Constitution.
It is beyond dispute that the Convention of 1787 was called by a resolution of the Confederation Congress, and that the resolution laid out the metes and bounds of the convention. The resolution clearly communicated those limits to all state legislatures being called on to send representatives to Philadelphia “on the second Monday in May next [1787].” Here’s the resolution that was agreed to by the Congress on February 21, 1787. See if you think the reason for the convention and the rules to govern its business were clearly expressed in the resolution:
Whereas there is provision in the Articles of Confederation & 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 & the preservation of the Union.
The Purpose: to “remedy” “defects in the present Confederation”
The Rules: “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….”
Now, as the eminent Emmerich de Vattel wrote in his seminal Law of Nations:
Those who form the contract, concur in the same intentions; they agree in desiring the same thing; and how shall they agree in this instance, if they do not perfectly understand each other? Without this, their contract will be no better than a mockery or a snare. If then they ought to speak in such a manner as to be understood, it is necessary that they should employ the words in their proper signification,—the signification which common usage has affixed to them, —and that they annex an established meaning to every term, every expression, they make use of.
They must not, designedly and without mentioning it, deviate from the common usage and the appropriate meaning of words….
So, let us look up the definition of the words “sole” and “express” as set out in Dr. Samuel Johnson’s Dictionary of the English Language of 1786, for there we’ll find not only the accepted definition, but a few selections from writers who used the words in context, so as to reveal the “common usage” affixed to these key words.
SOLE. adj. [sol, old Fr. solus, Lat.]
1. Single; only.
Take not upon thee to be judge alone; there is no sole judge but only one; say not to others, receive my sentence, when their authority is above thine. Hooker
Orpheus every where expressed the infinite and sole power of one God, though he used the name of Jupiter. Raleigh
To me shall be the glory sole among
Th’ infernal pow’rs. Milton’s Paradise Lost
EXPRESS. adj. [from the verb]
1. Copied; resembling; exactly like.
2. Plain; apparent; in direct terms.
There hath been some doubt whether containing in Scripture do import express setting down in plain terms; or else comprehending in such sort, that by reason we may from thence conclude all things which are necessary. Hooker
There is not any positive law of men, whether general or particular, received by formal express consent, as in councils; or by secret approbation; but the same may be taken away, if occasion serves. Hooker
3. Clear; not dubious.
I love to feel myself of an express and settled judgment and affection, in things of the greatest moment. Henry More
As to the testimonies of the fathers, let them be never so express against all sorts of prayers and invocations, they hold only of such a sort of prayer. Edward Stillingfleet
Where reason or scripture is express for any opinion, or action, we may receive it as of divine authority. John Locke
4. On purpose; for a particular end.
They who are not induced to believe and live as they ought, by those discoveries which God hath made in Scripture, would stand out against any evidence whatsoever; even that of a messenger sent express from the other world. Francis Atterbury
To many of you, that may have seemed excessive or pedantic. However, the purpose for copying those definitions and their contextualizing quotations was to illuminate exactly what Congress intended by the phrase “sole and express.” Understanding that phrase is critical to comprehending just how much Congress intended to limit the power of the convention.
By appreciating the limits, we can then judge whether those limits were exceeded by the delegates to the convention. Finally, by determining whether the delegates violated the boundaries of their predetermined and agreed upon authority, we can make a reasonable presumption as to whether delegates sent to a similar convention called today would violate similarly predetermined and agreed upon limits to their power and authority.
The irrefutable, historically demonstrable, inexorably evident — and for many — inconvenient truth is that, despite the plain language granting to it the authority to do only one thing — propose amendments to the Articles of Confederation — the Convention of 1787 produced an entirely new Constitution establishing an entirely new form of government.
The rules and purpose were clear and were agreed upon. The delegates knew what they were sent to Philadelphia to do. Within four months, the states were being asked to join or remain outside of a new union of states with a new form of government created by a convention that they had no control over, whose proceedings were kept completely secret, and that they believed was simply going to propose amendments to the Constitution (the Articles of Confederation). We got lucky.
In 1787 we got lucky that men like George Washington and James Madison and James Wilson and Benjamin Franklin and George Mason and Roger Sherman were present that summer in Philadelphia at that amendments convention.
How would you react if you heard that the slate of delegates for the convention of states for the recommendation of amendments to the Constitution to be held in a couple of years included Bill Gates, George Soros, Hillary Clinton, Nancy Pelosi, and Gavin Newsom?
Would you want to take back your vote for that convention of states? Do you think the billionaires who are backing that cause would permit you to recall your vote? Do you think those hypothetical delegates would suddenly stop trying to rob you of your liberty, especially if they knew they could buy a seat at that convention?
It is easier to fight to keep our Constitution than it would be to try and get it back once it’s gone.
