Remarkably, despite the enormous pressure to disclose the goings on of the federal convention, its delegates managed to keep very close to their oaths of secrecy. In a cost-saving move, several states simply recommissioned their congressional delegates to attend the convention.1 With so many in Philadelphia, congress, which was in New York, rarely had a quorum to conduct business during the summer of 1787. Edward Carrington of Virginia feared too few of his fellow delegates would return to New York and there wouldn’t be a congress to receive the report of the convention!
The president of congress, Arthur St. Clair, sent a letter to the states in mid-August that was intended to embarrass them into sending delegates in September. It worked. By the end of September, eleven states attended to their duties in congress.
The federal convention wrapped up its business on September 17th 1787. In a letter of transmittal to the confederation congress, George Washington, on behalf of the unanimous order of the convention, made a few requests. They asked congress to forward the draft Constitution to the states, and on behalf of the convention, ask the states to submit the draft Constitution to ratification conventions of the sovereign people’s delegates. Afterwards, it was trusted the states would inform congress of their decisions. The federal convention resolved:
That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution.
What should congress do with a document whose purpose was to replace the congress in which they sat? If the Articles of Confederation (AC) constituted a government, when did a government ever take measures to purposely destroy itself? Without knowing that the convention debated and rightly rejected the New Jersey Plan, several congressional members motioned that Article XIII of the AC limited their power to amending the present confederation and did not extend to creating a new form of government based on nine states.
Unfortunately, the record of votes at this critical time are lost. What we know is that a compromise emerged in which the congressional resolution to the states used the word, “unanimously.” It applied only to the act of sending the draft Constitution to the states, but would likely be mistaken to imply congressional approval of the Constitution. On September 28th, congress resolved:
Unanimously that the said report (meaning Constitution) 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.
As expected, congress soon dissipated after sending the draft Constitution to the states. By the time enough delegates showed up to form a congress on January 21st 1788, five states had already ratified the Constitution.2 In an ironic twist, the first full congress of all the states since 1777 convened on July 11th 1788, just a couple of weeks after the ninth state, New Hampshire, ratified the Constitution on June 21st. With a new government on the horizon, congress was productive like never before. Right away, it appointed a committee to report a plan of implementing the Constitution. On July 8th, it recommended electors be appointed on the first Wednesday in December, the first Wednesday in January 1789 for electors to elect a President, and the first Wednesday in February 1789 to commence Constitutional government. At the request of a couple southern states, these dates were, on August 6th, pushed back to January, February, and March respectively.
But commence Constitutional government where? A new Congress, sitting in New York, couldn’t risk sitting in a state that hadn’t ratified the Constitution. The quandary was soon solved when NY ratified on July 26th.3
In the fall, congress continued its attempts to smooth the transition. It issued three closing reports on finance, foreign affairs, and the post office. The unofficial end of the Articles of Confederation could be said to be October 10th 1788, when the quorum was lost and never returned.
Conclusion. We can argue forever the effect of sending members of congress to the federal convention, but to what end? The fact remains that congress was under no compulsion to do anything with the draft Constitution.
As opposed to the opinion of many Article V opponents, the federal convention did not impose the Constitution on the nation. The confederation congress could have tabled or rejected the draft. Instead, it forwarded the draft to the states, whose legislatures could have likewise tabled or rejected it. Ratification of the Constitution by the sovereign people of a state established clear intent to withdraw from the confederation.
Congress not only acceded to the will of the sovereign people, it assisted in the peaceful transition to new government. When did a government so willingly cooperate in its own demise?
In just thirteen years, Americans had broken their bands with monarchy, won a war against the most powerful nation on earth, instituted a confederation, and replaced it with a new republican form. We coolly evaluated our situations, and dealt with our problems head-on. We must do so again.
We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
Primary Reference: Burnett, E. C. (1941). The Continental Congress: A Definitive History of the Continental Congress from its Inception in 1774 to March, 1789. New York: W.W. Norton Company. pgs. 693-721.
- Ibid., p. 695. Three state delegations to congress in NYC were identical to their state delegations at the federal convention, two more states were divided and congressional conventioneers were mingled among the rest.
- Various. (1990). The Documentary History of the Ratification of the Constitution, Volume IX  Madison: State Historical Society of Wisconsin. p. xix. DE December 7th, PA December 14th, NJ December 18th, GA December 31st, CN January 9th.
- Ibid., p. xx. Even with the expectation of keeping congress, the NY vote was close, 30-27.
Postscript. While researching this blog post, I thought of a plausible contributing reason, of which I haven’t read elsewhere, why the ratification process was such a close-run thing. Members of the Philadelphia convention were sworn to secrecy, which was generally kept. It is only due to the release, after the death of all Framers, of James Madison’s notes, that history knows in some detail of the New Jersey Plan of Confederation. From his notes, we know the Constitution substituted the rule of force, in both the Virginia and New Jersey plans, with the rule of law.
Aside from the attending delegates, the debates surrounding these issues and more weren’t known in depth to anyone else. Our Constitution was so new and radical that the great Patrick Henry was at a loss to describe it. Imagine you are a delegate to a state ratifying convention. You are unaware of the intricacies of the convention debate and the interrelationship of the various clauses, yet you are asked for a yea or nay vote. I suspect that many of the nays were not due as much to opposition, but rather due to discomfort, of not feeling they understood the Constitution. Perhaps many of the nay votes reflected our natural tendency to keep that which is familiar, even when we know that what we have is inadequate.