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Dare Inquire Representatives Truth

A well-informed citizenry is the most powerful revolutionary force in our Constitutional republic.

U.S. Founding Documents

THE AMERICAN FEDERAL GOVERNMENT by John H. Ferguson and Dean E. McHenry, McGraw-Hill Book Co., 1947, 1973.
Chapter 2: Nation Building: American Style
"Revolt and Independence"
Legitimate Rulers or Rebels?
Two important questions of constitutional law were raised by the Declaration. The document declared that these United Colonies are... absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved...

Did this destroy British sovereignty, as it announced, or did the colonies remain merely in a state of rebellion until the end of the war? To the British, the colonists were rebels, but the American view has been that the Declaration made them independent and sovereign both internally and externally; hence all steps taken by the Congress on and after that date had the sanction of law. This view was pointedly stated by Justice Story: The Declaration of Independence has... always been treated as an act of paramount and sovereign authority, complete and perfect per se, and ipso facto working an entire dissolution of all political connection with, and allegiance to, Great Britain. And this, not merely as a practical fact, but in a legal and constitutional view of the matter by the courts of justice.


From the standpoint of international law, however, since foreign governments with the exception of France and the Netherlands refused to recognize or receive their ministers, the United Colonies remained in a de facto status until 1783. After the revolution their status became fully legal, or de jure. Although Great Britains sovereignty was doubtful, the United States was, nevertheless, not entitled to all the rights and privileges of nationhood until the rebellion terminated in its favor.

Was one nation, or were thirteen brought into existence by the Declaration" If one, then only the central government had authority to levy war; send and receive ambassadors, ministers, and consuls; and make treaties. If thirteen, then all were competent to do these things.

The words of the Declaration are so ambiguous that they permit two interpretations. States' rights advocates called attention to these words:

...these United Colonies are, and of right ought to be free and independent states... and that as free and independent states... they have full power to levy war, conclude peace, and contract alliances, establish commerce, and do all other acts and things which independent states may of right do.

Nationalists, on the other hand, stressed the statement that the Declaration was made in the name and by the authority of the good people of these colonies by the representatives of the United States of America, in general Congress assembled.

Again quoting Justice Story, a staunch nationalist:

It (the Declaration of Independence) was not an act done by the State governments then organized, nor by persons chosen by them. It was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives, chosen for that among other purposes... It was an act of original, inherent sovereignty by the people themselves, resulting from their right to change the form of government, and to institute a new one, whenever necessary for their safety and happiness... It was, therefore, the achievement of the whole for the benefit of the whole.


Provincialism was strong; the newly created states were as jealous of one another as of Great Britain; the Congress was weak and at the mercy of the states; and many of the states behaved as if they were sovereign. Nevertheless, in american law the theory has prevailed that a nation was created by the Declaration, and the states remained sovereign only in the sense that in matters of a local nature they were self-governing.

Of this the Supreme Court said in a twentieth-century decision (United States v. Curtiss-wright Export Corp., 299 U.S 304, 1936):

As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency - namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.


As events moved toward a showdown in 1775, crises developed in the internal affairs of the colonies, calling for reorganization. The flight of most of the royal governors and other officials left many of the royal colonies without any legitimate governments. In other instances, as in Massachusetts, resistance to British authorities made new arrangements necessary.

The Congress recommended that the states adopt "such governments as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constitutents."

Since no machinery existed with which to make the transition, the Congress recommended that new governments be established by "assemblies and conventions," and most of the states followed this counsel. The charters of Rhode Island and connecticut, however, needed only minor revisions, and Massachusetts slipped back to its 1691 charter, using it until 1780. For the first time in history a large group of communities had begun the formation of their own governments under written constitutions. As they did so, they began to refer to themselves as "state" rather than "colonies."


Since the purpose of the Convention was to revise and improve the Articles, and the Constitution begins by referring to "a more perfect union," one might inquire:

How were the weaknesses of the Articles overcome?


  • States were sovereign.
  • No independent executive.
  • No Federal Courts. Federal laws enforced by state courts.
  • No power to collect taxes.
  • No power over interstate and foreign commerce.
  • Congress an assembly of delegates who were chosen by state legislatures, were expected to vote as instructed, and could be recalled.
  • Articles could be amended only by consent of all the states.
  • Congress had only specifically delegated powers.
  • Central government could not act directly upon people.


  • People of the whole nation were made sovereign. A federal union from which secession was impossible was created, and the Federal Constitution and laws were made the supreme law of the land.
  • Article II provides for the President chosen indirectly by the voters. President is given the executive power; he is made Commander in Chief of the Army and Navy, and he may take all steps necessary to see that laws are faithfully executed.
  • Separate system of federal courts provided by Article II with authority to enforce Federal laws and annul state laws inconsistent with Federal Constituion or laws.
  • Article I, Section 8, empowers Congress to lay and collect taxes, duties, imports, and excises.
  • Article 1, Section 8, gives Congress power to regulate commerce with foreign nations, among the several states, and within Indian tribes.
  • Congress composed of representatives who have definite tenure and can act in any manner they choose. House of Representatives chosen by direct vote of people, Senate by state legislatures (now direct popular vote).
  • Constitution can be amended with approval of three-fourths of the states.
  • Congress given implied, as well as delegated, powers.
  • Central government exercises its powers directly upon the people and concurrently with state governments.


The convention had been called to consider and suggest amendments to the Articles. Had the Articles been followed, the Congress would have approved all the changes contained in the new Constitution and referred them to the legislature of each state for acceptance or rejection. Rather than follow this procedure, the Convention recommended one that was without legal sanction.

It placed in the body of the Constitution itself (Article VII) a provision declaring that ratification by conventions of the people of nine states would establish the Constitution.

The document was then sent to the Confederation Congress with the advice that the Congress approve it and refer it to the state legislatures which, in turn, should pass it along to conventions of the people in the separate states. It was also suggested that, when nine conventions had approved, the Congress should put the new government into operation and go out of existence. Of this action on the part of the Convention Professor Burgess wrote:

What they (the Convention) actually did, stripped of all fiction and verbiage, was to assume constituent powers, ordain a Constitution of government and of liberty, and demand the plebiscite thereon, over the heads of all existing legally organized powers. Had Julius or Napoleon committed these acts, they would have been pronounced coups d'etat. Looked at from the side of the people exercising the plebiscite, we term the movement revolution.

John W. Burgess, POLITICAL SCIENCE AND COMPARATIVE CONSTITUTIONAL LAW, Boston: Ginn, 2 vols., 1902, vol. 1, p. 105.

Although superficially true, this statement distorts the situation. rather, the founding fathers were practical politicians who were willing to take the calculated risk that their handiwork would be approved by a substantial majority of the states and the people. Their greatest fear was that one or two state delegations in the discredited Congress would stymie action there or that one or two state legislatures would obstruct ratification.

This was a real danger because Rhode Island had not been represented at all at the Convention, most of the New York delegation had left the Convention as a protest against its proceedings, and a number of delegates had spoken in oppositon to the Constitution and the proposed method of ratification. The best chance of success was that the Congress would obediently refer the new Constitution to the states and that nine of them would provide for conventions.

Besides improving the possibility of adoption, reference to conventions elected by the voters especially for the purpose of considering the Constitution would give greater validity to the words "We, the people... do ordain and establish this Constitution."

It would also emphasize the outstanding difference between the Constitution and the Articles, viz., that this was a union of the people and not of the states.

The leaders believed that the gravity of the emergency and their knowledge of the people justified taking the risks involved by not following the letter of the Articles.


Upon the adjournment of the Convention on September 17, the document was sent to the Congress, then meeting in New York City. There it was received without enthusiasm. After all, it was expecting a great deal to ask the Congress to light its own funeral pyre, as Bancroft has said. Nevertheless, Congress obediently, on September 28, 1787, adopted a resolution transmitting the document to the state legislatures to be submitted by them to state conventions. One state after another enacted legislation authorizing the election of delegates to attend the conventions.

Voters in most of the states chose delegates during the fall and winter of 1787-1788. The number of delegates attending the state conventions varied from about 30 in Delaware to about 355 in Massachusetts. Delaware, one of the small states that had been appeased by the Connecticut Compromise, was the first to ratify.

  • Delaware, December 7, 1787, unanimous.
  • Pennsylvania, December 12, 1787, 46-23.
  • New Jersey, December 19, 1787, unanimous.
  • Georgia, January 2, 1788, unanimous.
  • Connecticut, January 9, 1788, 128-40.
  • Massachusetts, February 6, 1788, 187-168.
  • Maryland, April 28, 1788, 63-11.
  • South Carolina, May 23, 1788. 149-73.
  • New Hamphire, June 21, 1788, 57-46.
  • Virginia, June 25, 1788, 89-79.
  • New York, July 26, 1788, 30-27.
  • North Carolina, November 21, 1789, 184-77.
  • Rhode Island, May 29, 1790, 34-32.

On July 2, 1788, Congress took official note of the ninth ratification, New Hampshire's, and appointed a committee to consider and report on steps "for putting the said Constitution into operation in pursuance of the late federal Convention."


The Constitution begins by saying "We, the people... do ordain and establish this Constitution...," and much has been said about popular sovereignty. This undoubtedly obtained in a juristic or legal sense, but nevertheless it is an axaggeration of what actually occurred.

Actually, comparatively few people participated directly in the adoption of the Constitution. The suggestion to call a Constitutional Convention was not submitted to popular vote. Delegates to the Philadelphia Convention were not elected by the voters, but, rather, were appointed by the legislatures and governors.


Finally, the Constitution was not submitted to the voters for popular approval. The only point at which the voters were allowed to participate DIRECTLY was in choosing delegates to attend the state conventions which ratified the Constitution.

Only a few people - estimated at 160,000 - participated in the choice of delegates to the ratifying conventions. Of these, an estimated 100,000 favored adoption. Since the nation's total population was about 4 million, the obvious conslusion is that only an estimated 2.5 percent voted favorably. The generous view is that the election turnout was not bad considering the short span of time between the Convention's adjournment and the election, the winter weather and poor means of travel, the difficulties of informing people and getting them aroused enough TO VOTE, and the fact that they were choosing delegates to conventions, rather than voting directly on approval or rejection of the Constitution. It is worth noting that nowhere else in the world had a more democratic procedure been followed in making such an important decision.

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This page was revised April 19, 2003