WE HAVE BEEN looking at the Federalists as practical statesmen who faced a series of sharp constitutional challenges to their initiative. Without their ongoing display of unconventional statecraft, the Founding would have been a miserable failure. Even with it, the Federalists barely staggered across the finish line they had drawn for themselves.
In crossing the line, they managed to distinguish themselves from many other clever and ambitious men who have yearned to impose their ideals upon the larger public. From the days of Jefferson to the days of Gingrich, movements for constitutional reform have repeatedly tried to repeat the Federalists’ success in speaking for the People—with a wide variety of outcomes. Many never got beyond the signaling stage. A few were so successful that they reshaped the criteria the Federalists developed for successful signals, proposals, triggers, ratifications, and consolidations. In principle, each serious movement is entitled to sustained study.
I will be settling for a lot less. I will be focusing on Reconstruction and the New Deal for two reasons. First, they are like the Federalist period in demonstrating sustained popular support for revolutionary reforms. Other successful movements have settled for less sweeping changes. Second, they arose in the remote past, beyond the vivid recollection of modern Americans. Once the active participants are dead and gone, legal scholars have a special role to play in exposing the relevant materials for more general discussion. If they don’t present the constitutional problems raised by our past, who will?
The simple passage of time may also free us from knee-jerk partisanship and allow us to see the great constitutional struggles of the past as something that binds us together as Americans—yielding precious resources for assessing our own political efforts. As we move into our third century as a People, one thing is clear—the effort at revolutionary reform has not come to an end, nor has the skepticism it engenders. In the future as in the past, would-be reformers will have to earn huge quantities of institutional credibility before they gain higher lawmaking recognition for their achievements. But how much institutional resistance must they transcend, and of what kinds?
If dualism is to remain a viable constitutional project, constitutionalists must be in a position to provide credible answers to these questions. And I know of no better way than the reflective and critical assessment of the paradigm cases of popular sovereignty given to us by American history. When constitutionalists confront the claim of a rising group of politicians to speak for the People, we should be asking ourselves: Have the newcomers earned their claim to popular sovereignty through a process that measures up to those through which Federalists, Republicans, and Democrats gained their credibility at earlier times?
There is no shortcut to an answer. We must work our way through each of our paradigm cases with the classic tools of reflective legal analysis—searching for analogies between the cases that seem grounded in fundamental legal principles. If we are successful, the result will have the texture of good common law judgments—providing historically rooted criteria that are sufficiently incisive to produce meaningful legal assessment of the unknowable future. What more can Americans reasonably expect from law than this?
This is not a rhetorical question. I have no doubt that many—most?—lawyers will be tempted by a different answer, which is no less grounded in the Founding. On this formalist approach, the Federalists have solved our problem for us in Article Five of their Constitution, which lays down some clear rules for constitutional amendment. Given this set of instructions, lawyers can happily avoid a tedious study of the messy lessons of history before propounding the law of higher lawmaking that should guide Americans into their third century. If future reformers want to change the Constitution, let them play by the rules laid down in Article Five. What could be simpler?
But what does Article Five really say?
The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…*
The words describe a complex system. They place four different combinations before us: federal convention–state conventions; convention–legislatures; Congress–conventions; Congress–legislatures. Why the plurality? Why can’t the People learn how to speak in a single way?
Worse yet, the article lacks the clear set of rules presupposed by the formalist’s question. True, if the People choose to express themselves through the Congress-legislatures combination, it is clear that an amendment must gain the support of two-thirds of the House and Senate, and three-fourths of the legislatures. But it is unclear whether the state legislatures must approve the amendment by two-thirds (like the Congress) or by some other majority. Things get murkier with the other modes of revision. What is this beast, the “convention”? How is it composed? How is it different from those more familiar creatures: the legislatures sitting on the national and state levels? For example, could Congress simply call itself a convention (upon receiving appropriate applications from two-thirds of the state legislatures)? If not, why not? If the convention must meet as a separate body, as it did in Philadelphia, should it also follow Philadelphia in awarding a single vote to each state, regardless of population? This proliferating list of
questions1 should caution against overenthusiastic descriptions of Article Five as containing a “plain meaning.”2 An appeal to the text can provide no escape from the thoughtful exercise of lawyerly judgment.
More generally, I want to embrace a pluralist view of the sources of law. Rather than choosing between the lessons of the text and the lessons of our great historical precedents, we should try to learn from both, coordinating them into a larger understanding of the law of higher lawmaking. My real antagonist, then, is not the thoughtful textualist but someone who treats the Founding text as the exclusive source of law. Hypertextualists, as I will call them, insist that all the modern lawyer needs to know about constitutional revision can be found within “the four corners” of Article Five. While this position is not represented too forcefully in the literature,3 my real-world encounters with ordinary lawyers have led me to take it seriously. As we move into the nineteenth and twentieth centuries, I will return to consider how the twists and turns of history undermine the claims of hypertextualism. Right now, I will be trying to exclude hypertextualism from the starting gate—for the simple reason that it fails to do justice to the complexities of the original understanding. From the very first, our Constitution was based on the pluralist claim that both text and practice deserve weight in the evolving law of higher lawmaking.
If the Framers wanted to vindicate hypertextualism decisively, there was an easy way to do it. They could have written an explicit proviso that “This Constitution can only be amended when. …” In writing such a clause, the Federalists would have self-consciously warned future Americans against treating their own unconventional activities as a precedent: “While we claimed the authority to revise the Articles in the name of the People, we deny future generations an equal right to change the amendment procedures we now lay down in Article Five.”
But the Convention made no such claim, despite warnings from the delegates that they were creating a decisive precedent: “Mr. Gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. If nine out of thirteen can dissolve the compact, Six out of nine will be just as able to dissolve the new one hereafter.”4 Whatever else Article Five may say, it does not claim exclusivity.
But, replies the hypertextualist, the Convention didn’t need to say so. It could rely on an established legal maxim: “Expressio unius exclusio alterius”—which means “To enumerate one thing is to exclude others.” But there is no evidence that the Convention relied on this bit of Latin to resolve the textual indeterminacy. Indeed, the records show that the Convention gave Five remarkably little thought of any kind.
This may seem surprising, until we consider that Article Five was not the only constitutional provision devoted to the problem of higher lawmaking. For the Federalists, the other provision, found in Article Seven, was more important. It was here where they decided, after anxious and recurring debate, to break their links with the Articles of Confederation by declaring that nine state ratifications would suffice to validate their new Constitution. In contrast, Five spoke to the day after tomorrow, addressing a problem then triply hypothetical: If the Convention gained general acceptance for the nine-state rule announced in Seven, and if the Federalists managed to carry nine state conventions, and if the People later wished to change the Constitution, how might they go about it?
Little wonder that the Convention delegates had better things to do with their time. While the Federalists produced drafts that briefly noted the need for an amendment article, there was very little discussion until the last working week of the Convention. At that point, the working draft contained a provision that reflected the rudimentary character of the debate: “On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose”5—in other words, the process for revision should (more or less) track the process by which the Federalists got to Philadelphia in the first place.
But in their initial encounter with the problem on the floor, the delegates were convinced by Madison (after a very brief discussion) to eliminate the possibility of a second constitutional convention and place control over higher lawmaking firmly in the hands of the new Congress:
The legislature of the U– S– whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S.6
Then, on their last working day, the delegates returned to Madison’s handiwork in a critical spirit:
Col: Mason thought the plan … exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.
Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts.
Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. Which in Constitutional regulations ought to be as much as possible avoided.7
The last lines come as close as you get to a hypertextualist assertion at the Convention. Madison was perfectly right to complain that the Morris-Gerry amendment would destroy Article Five’s promise of a neat rule system. By explicitly allowing another federal convention, Mason, Morris, and Gerry were opening up vast new areas of ambiguity “as to the form, the quorum &c.” which the second Convention might exploit in surprising ways—ambiguities especially threatening given the iconoclastic precedent established at Philadelphia. If the delegates had been genuinely concerned to redeem hypertextualism’s promise of clarity, they either would have rejected Morris-Gerry or specified further rules to fill its most troublesome gaps.
They did neither. When the Convention was faced with the stark choice between rule-like clarity and allowing the People to break the Congressional monopoly over higher lawmaking, it was eleven states to none against rule-like clarity. With any pretense at formal perfection shattered, Roger Sherman moved to muddy the waters further, taking aim at the provision that authorized ratification by three-fourths of state legislatures or state conventions. He moved to strike the words “three-fourths …, leaving future Conventions to act in this matter, like the present Conventions according to circumstances.”8 This motion might have set the stage for an extended debate on hypertextualism. On a better day, we might have heard a pluralist assert that Sherman’s amendment was unnecessary since a second convention could appropriately follow the precedent of the first in moving beyond preexisting ratification rules. But the delegates were in no mood for extended argument as they rushed toward the finish line. Without any discussion, they voted Sherman’s proposal down by seven states to three.
This is not, to put it mildly, a picture that puts hypertextualism in its best light. It is one thing to focus narrowly on some Founding words when they represent the culmination of deep and wide-ranging thought; quite another, when they are the by-product of a last-minute rush—especially when the Federalists, in their all-too-human desire to go home, did take the time to uphold Mason’s appeals to popular sovereignty over Madison’s concerns about the formal perfection of Article Five’s system of rules.
The Founders’ nonchalant treatment of Article Five contrasts sharply with the very deliberate way they proceeded to break with the Confederation in the name of We the People. Why, then, should constitutionalists ignore the lessons of their well-considered practice and concentrate exclusively on the rule fragments so negligently left behind in Article Five?
I do not want to put too much weight on the secret deliberations—or lack of them—that went on at the Philadelphia Convention. How would ordinary Americans have understood the article? Would they have used expressio unius as a key to determining whether it provided the exclusive modes for amendment? What is the foundation of this Latin maxim anyway?
I take it to be based on a point about ordinary English usage. Suppose, for example, your boss said to you, “You can use a hammer to fix the machine.” In certain contexts, you would be right to use expressio unius to interpret this remark to mean “You can only use a hammer and nothing else to fix the machine.”
But only sometimes. It may be more sensible to understand it as “You can use a hammer or any like implement to fix the machine.” The right inference depends on context, which makes history important. But before we go down that road, a few thought-experiments may permit some insight into the contextual issues.
Reflect, first, on the fact that Article Five does not merely create a single implement to fix the constitutional machine; it creates four. In ordinary life, this single fact subtly—though not decisively—shifts the balance in favor of pluralism. Suppose the boss says “You can use hammers or screwdrivers, or both together, to fix the machine,” and you discover that a wrench is more functional than either of these tools. Doesn’t the fact that the boss initially authorized several different instruments, and not only one, make the pluralist reading a bit more plausible?
Consider the same case as before, with one additional fact. Before giving you his instruction about hammers and screwdrivers, the boss had fixed the machine with a wrench. You are now considering whether to use a wrench as well, when a partisan of expressio unius intervenes:
E (for Expressio): The boss said that you could use hammers or screwdrivers, but he said nothing about wrenches! Why are you disobeying?
P (for Pluralist): But he used a wrench himself. If he didn’t want me to use a wrench in an appropriate case, he would have said so.
In many contexts, P’s reply would be entirely sensible. Unless E points to a special feature that supports his inference, the contextual balance seems to be tipping in the pluralist direction: “You can use a hammer or a screwdriver or any like instrument (and especially a wrench) to fix the machine.”
Now a final bit of context: When the boss used a wrench earlier to fix the machine, he himself had a boss, who had explicitly told him not to use the wrench. The boss disobeyed, and nevertheless was successful. Now that he has become the highest authority, he fails to follow the example of his previous employer. Rather than explicitly prohibiting the use of a wrench, he simply fails to mention the wrench and merely says that his underlings “can use hammers or screwdrivers.” As you are about to use your wrench, E intervenes:
E: The boss said that you could use hammers or screwdrivers, but he said nothing about wrenches! Why are you disobeying?
P: But he used a wrench himself when he was in my position.
E: So what? Unless he explicitly mentions wrenches, you should understand him as implicitly forbidding their use.
P: Nonsense. You just don’t understand the boss. He was trying to be helpful in mentioning hammers and screwdrivers. He wasn’t trying to stop me from using other tools if they would get the job done.
E: Why didn’t he say so?
P: He didn’t need to, given the way he dealt with instructions when he was in my position. After all, he ignored his old boss when the guy expressly warned him off wrenches. If he wanted me to take his warnings seriously, he would have gone out of his way to say so, and not leave it to implication.
Of course, a constitution is no ordinary machine. Nevertheless, these dialogues deflate hypertextualist rhetoric that presents expressio unius as the only “natural” way to read texts. In a setting like the last one, the linguistic intuitions of native English speakers incline strongly against the maxim, and in favor of pluralism. This is important since this scenario approximates the historical realities.
Recall that the thirteenth Article of Confederation had explicitly made its amendment provision exclusive. As in my last hypothetical, the Convention not only ignored these instructions from its nominal boss but refused to claim exclusivity for new amendment procedures. Within this context, isn’t it odd to suppose that expressio unius should be an appropriate guide?
After all, Americans had been proclaiming the “right of the People to alter and abolish” their government since 1776—both in the Declaration of Independence and in many of the state constitutions of the revolutionary era.9 Since the Federalists were operating within this revolutionary tradition, why should the average American have interpreted Article Five as cutting off all future appeals to the People which did not comply with its requirements?
This is certainly not the impression left by James Wilson, who took to the floor of Pennsylvania’s ratifying convention to insist that “the people may change the constitutions whenever and however they please.”10 Wilson’s words were widely noted, coming from a man who rivaled Madison in his leadership at the Convention. Indeed, the Anti-Federalist leader John Smilie soon tried to turn Wilson’s words in an unexpected direction: “even after this Convention shall have agreed to ratify the proposed plan, if the people on better information or maturer deliberation should think it a bad and improper form of government, they will still have a right to assemble another body to consult upon other measures and either in the whole, or in part, to abrogate this federal work so ratified.”11
Later on in the ratifying campaign, the Federalists sought to use Smilie’s point to their own advantage. Their opponents had focused on the Philadelphians’ failure to include a Bill of Rights as the central deficiency of the Constitution. Given this major flaw, was it not more prudent to condition ratification on its successful solution? The Anti-Federalists urged the conventions to refuse ratification and insist that a second federal convention meet to frame an appropriate set of amendments; only then would final ratification by a second set of state conventions be appropriate. What was the rush anyway?12
The Federalists responded to this reasonable question by assuring their opponents that the First Congress would quickly respond with a Bill of Rights. But what if these promises were unredeemed? Here is Edmund Pendleton, president of the Virginia ratifying convention, responding to these anxieties in his initial address:
We, the people, possessing all power, form a government, such as we think will secure happiness; and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then? We will resist, did my friend say? conveying an idea of force? Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse. …13
Pendleton could not have held out this option if Article Five had explicitly claimed exclusivity.
Nor did the Federalists consign Pendleton’s sentiments to oblivion once they had fulfilled their purpose during the ratification campaign. In his influential Law Lectures of 1790, James Wilson repeated the same claims he had made on the stump, emphasizing the “one great principle … animat[ing] all the others … that the supreme or sovereign power of the society resides in the citizens at large; and that, therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and in whatever manner, they shall deem it expedient.”14 But now Wilson was a Justice of the Supreme Court and his audience included the leaders of the new government.
The same pluralist theme recurs as the First Congress redeemed the Federalists’ promise of a Bill of Rights.15 James Madison’s initial draft interweaved the new amendments into the original text, starting with a new beginning to the preambulatory “We the People,” which included: “[t]hat the people have an indubitable, inalienable, and indefeasible right to reform or change their Government.”16 Nobody denied the merit of this sentiment, but it was rejected on grounds of redundancy. Roger Sherman’s remarks are revealing:
The people of the United States have given their reasons for doing a certain act. Here we propose … to let them know that they had a right to exercise a natural and inherent privilege, which they have asserted in the solemn ordination and establishment of the constitution. Now, if this right is indefeasible, and the people have recognized it in practice, the truth is better asserted than it can be by any words whatever. The words “We the people” in the original constitution, are as copious and expressive as possible …17
This is precisely the pluralist’s point. If the principle of popular sovereignty is “better asserted [in practice] than it can be by any words whatever,” lawyers should treat the lessons of practice no less seriously than the words of Article Five.
This conclusion is reinforced by the practical construction early Americans gave amendment clauses of the Federalist type. Time and again, legislatures confronted state constitutions that, like the Federalist text of 1787, neither expressly barred nor explicitly authorized nontextual revisionary procedures. On sixteen occasions before the Civil War, state legislatures refused to read this silence to imply exclusivity.18 They repeatedly called constitutional conventions on occasions not explicitly authorized by their governing texts. Looking back, the leading treatise writer of the nineteenth century—the very conservative Judge Jameson—had no trouble concluding: “upon authority [of the precedents] certainly, and I think also upon principle, it is competent for the people, at the instance and through the ministry of the existing government, to amend their Constitution either in the mode presented [in the text] or in such other mode as custom may have sanctioned, and as sound statesmanship may, under all the circumstances, approve.”19 The few twentieth-century scholars who have seriously studied these sources tend to be equally emphatic.20
I do not deny that exclusivism begins to gain serious advocates as the early Republic proceeds. The most notable assertion is in George Washington’s Farewell Address:
If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.21
Like many valedictories, this one contrasts sharply with the speaker’s deeds when he was an active leader. If Washington had practiced what he preached, he would have walked out of the Constitutional Convention. Nonetheless, his Farewell does inaugurate a school of thought that looks upon the Founding as the end, and not merely the beginning, of the American experiment with popular sovereignty.22
The best way to confront this tradition is to move beyond the Founding and see what Americans have actually done with their Constitution in the name of the People. But for now, it is enough to caution that Washington’s Farewell does not do justice to the revolutionary thrust of early American thought and practice. As I read the sources, they generally point in the pluralist direction, and caution us against reading the silence of Article Five as if it contained an express effort by the Founding generation to put itself on a pedestal and prevent future generations from following Washington’s example, rather than his valedictory.
So let us leave the text and return to the Founders’ practice, this time searching for deeper legal meanings. The place to begin is with the curious institution that the Federalists brought to center stage. In English constitutional law, a “convention” was a legally defective Parliament, most notably the one presiding over the Glorious Revolution of 1688. Before slipping out of London, King James II cancelled the writs of election he had issued and dropped the Great Seal in the Thames, explaining: “A meeting of a parliament cannot be authorized without writs under the great seal.”23
His enemies responded with an ersatz process. Members of earlier Commonses met in Westminster as an ad hoc body and issued a “circular letter” as a substitute for legal writs of election. Acting under these letters, officials conducted something that looked very much like a traditional ballot for the Commons. Members of this unconventional House joined (some of) the Lords to meet as a “Convention.” Even this ersatz Commons + Lords was not enough for a Parliament under English law—since the presence of the King was required, and James was all too absent.24 But despite the evident break with formal rules, the Whigs had designed a procedure that created as much institutional continuity with the old regime as was plausible under the circumstances.
In the eyes of the victors of the American Revolution, the Convention of 1688 was responsible for some of the greatest achievements in English constitutional history—notably the promulgation of a Bill of Rights and the replacement of a tyrant king with a constitutional monarch. This great precedent provided the Federalists with a language that permitted them to present their rule-breaking initiative in a way that fell short of total revolution. As in 1688, the Federalist conventions of 1787–88 had broken some basic rules but had created credible institutional linkages to the preexisting constitution. Thanks to the English precedents, the Federalists were not required to make up an alien language to explain what they were doing. In calling for “conventions,” they could adapt an older vocabulary already rooted in the living political culture.25
Modern English has evolved to the point where the Federalists’ use of “convention” is anything but conventional. To provide a link with the past, I have been using “unconventional” to describe the same sort of institutional practice. This is a sharp verbal change, but the Federalists were also linguistic reformers. Their conventions were different beasts from their great English predecessor. For one thing, they claimed greater authority. The Convention of 1688 was profoundly embarrassed by its defective legality. As soon as William and Mary were comfortably on the throne, the Convention declared itself a proper Parliament and passed a statute retroactively legalizing the anomalous acts of its legally defective predecessor.26 In contrast, the Federalist conventions claimed to speak for the People better than the established Congress and state legislatures. In a remarkable inversion, the legally problematic character of the conventions was taken as a sign of their superior capacity to speak for the People.
In making this move, the Federalists were not acting entirely without precedent. A few years earlier, the town meetings of both New Hampshire and Massachusetts had refused to approve constitutions proposed by their state legislatures, insisting that special conventions be called instead.27 The Federalists, then, were nationalizing a precedent that had already gained a foothold on the local level.
But they gave these precedents a different spin. While the town meetings of New Hampshire and Massachusetts had insisted on state conventions to propose constitutions, they saw no need to demand special ratifying conventions but approved the proposals themselves.28
The Federalists used the convention device twice: after proposing their Constitution at Philadelphia, they demanded special ratifying conventions.
This second round was essential in legitimating their rule-breaking exercise. Otherwise, they would have been obliged to defend themselves before the very bodies that had defined their legal mandates: the state legislatures. By appealing for ratifying conventions, they could redefine the relevant question. Instead of acting defensively when their opponents accused them of breaking the rules, they could go on the offensive and deny that legalistic objections could appropriately prevent a convention of the People from deliberating on its constitutional destiny. After all, if the citizenry found rule-breaking really troubling, they would simply elect so many Anti-Federalists to the ratifying conventions that the Constitution would be doomed.
The Federalists’ referendum-like appeal placed their opponents at a distinct ideological disadvantage. The Anti-Federalists were also children of the Revolution. They too had broken countless British laws in the name of the People. They too knew that the Convention of 1688 had played a proud role in the Glorious Revolution. Once the Federalists had adapted convention-imagery on behalf of their revolutionary reforms, the Anti-Federalists were left looking like legalistic nitpickers—and they knew it. Since the calling of ratifying conventions was a bitterly fought question in some of the state legislatures, the Federalists’ success in taking the high ideological ground could well have made the difference.
Once again, there doesn’t seem to be a standard word to describe the distinctive character of their innovation. So please forgive me when I call the Federalist ratifying conventions an exercise in quasi-direct democracy. To grasp this distinctive mixture, begin with the sense in which the Federalist initiative approached the notion of “direct” democracy, as exemplified by a popular referendum. As in a referendum, the elections for convention delegates in 1787 and 1788 were focused on a concrete proposal—the Federalist Constitution of 1787. At the same time, the process was only quasi-direct—the voters did not cast ballots on the merits of the Federalist Constitution but for delegates who would deliberate further. This allowed for a more complex process of decision than the simple Yes-No of a modern plebiscite: delegates could be elected who were publicly uncommitted on the merits; others might choose to pay the political price of changing their public positions from No to Yes. For all this flexibility, delegates had a much clearer sense of a “mandate” from the People to move in a particular direction than normally exists in standard electoral contests.
The convention mode, then, represented a distinctive mix of popular will and elite deliberation—combining the popular involvement of “direct democracy” with the enhanced deliberation of “representative democracy.” The aim was for a deliberative plebiscite.29 But by aiming so high, the Federalists risked missing both targets: their conventions might lack the democratic credibility of a referendum while lacking the deliberative quality of the best representative bodies. In fact, the historical record is mixed, and we will soon turn to consider the darker side of Federalist practice.
But for now, consider its affirmative contribution. The Federalist experiment in quasi-direct democracy was way ahead of its time. In the half-century after 1787, thirty-four state constitutions would be enacted into law, but only six would be ratified through a special procedure involving a focused vote by the People—and only two of these ballots occurred outside New England. Popular ratification became a national norm only after the Jacksonian Revolution of the 1830’s.30 When set within its time and place, the Federalist call for ratifying conventions was a radical experiment in democracy.31
Their success is impossible to understand without reference to this radically democratic ideal. After all, their opponents could have reacted to Federalist lawlessness by boycotting the elections, thereby depriving them of their legitimacy. Instead, they responded to the Convention’s appeal to the People by competing for popular support in a relatively fair and open contest. Their engaged electoral competition vastly enhanced the quality of the Federalists’ ultimate victory. Once the Anti-Federalists had jumped on the bandwagon started at Annapolis, it would be hard for them to jump off and condemn the outcome simply because they had lost.
After four years of engaged institutional struggle, the Federalists had reached a point where even their bitter opponents had a hard time denying that the Constitution represented a considered judgment of We the People of the United States. To summarize this bandwagon dynamic, it may be clarifying to distinguish between its negative and positive aspects. Negatively, unconventional action served to constrain the destabilizing consequences of a breach of the basic rules for constitutional revision—providing the political participants with an institutional context for decision that was sufficiently familiar to engage in constructive debate and decision. Positively, the elaboration of new forms of quasi-direct democracy allowed the public to intervene in a specially focused way—without reducing the notion of a mandate to a mechanical yes-no vote. Rather than supposing that the People speak directly at the ballot box, the Federalist precedent promises legitimation through a deepening institutional dialogue between political elites and ordinary citizens. The idea is that a form of complex, and temporally extended, institutional practice will ultimately permit a group of revolutionary reformers a kind of popular authority that is qualitatively different from normal electoral victories. The challenge is to understand more precisely the distinctive character of this unconventional practice.
This was, of course, the aim of the last chapter. Rather than considering Federalist practice as an undifferentiated whole, we followed the Founders through a five-stage process of constitutional legitimation—moving from the problems of signaling through the difficulties of constitutional consolidation. But perhaps we can now deepen this case study by integrating it into this chapter’s larger themes. I have been defending a pluralistic legal method, which refuses to choose between the lessons of text and those of precedent but seeks to synthesize them into a mutually enlightening whole. On this integrative line of thinking, lawyers should always be on the lookout for ways in which the text of Article Five confirms, rejects, or refines the conclusions suggested by their study of constitutional practice. We can now begin to cash this promissory note.
As we saw, it is hard for the hypertextualist to read Article Five without embarrassment—as rule systems go, this one is almost criminally negligent in its failure to regulate the most obvious problems. But for the pluralist, the text consolidates and refines the lessons of practice. Consider, first, how it elaborates legitimating patterns of differential complexity as it contemplates different institutions at the center of the stage. Begin with the simplest pattern, involving the standard organs of everyday government—Congress and the state legislatures. When these institutions occupy the foreground, the text describes a truncated pattern: two-thirds of Congress proposes an amendment and sends it on to the state legislatures for ratification. Even here, it is worth noting two minor stages. Between proposal and ratification there is a half-stage during which Congress exercises a triggering function—deciding that its proposal should be ratified by legislatures rather than conventions. At the end of the process, the text gestures to another minor stage. It announces that the amendment “shall be valid to all Intents and Purposes” upon ratification by three-fourths of the states—without, however, explaining how this act of constitutional consolidation should take place. Thus, the Constitution seems to envision a four-phase process when Congress and state legislatures are involved—containing two main stages, proposal and ratification, and two minor ones, triggering and consolidation.
The legitimating dynamic gets more complex when the “convention” gets into the picture. The full-blown treatment extends to four major phases, which alternate between standard and unconventional bodies. First, two-thirds of state legislatures signal the need for a constitutional “convention,” a word whose complex resonances we have just explored. In response to this signal, Congress is given no choice: it “shall” issue the call, and allow the convention to take the lead at the proposal stage. But the initiative then returns to a standard institution—Congress—whose triggering decision takes on a larger significance. When faced with the convention’s demand for constitutional revision in the name of the People, Congress can either send the proposal down the standard track or call for another round of unconventional activities. By calling for ratification by “conventions,” Congress ousts the standard legislative bodies in the states from their accustomed position of authority. Finally, we encounter the weakly articulated consolidation phase, where somebody or other recognizes that three-fourths of state conventions have ratified, and the new revisions come into effect.
In short, the text envisions the very five-stage process through which the Federalists themselves won their own legitimacy. This strikes me as important—most obviously, because it confirms the categories we have used to describe the Founding process. Not only are our five stages rooted in Founding realities, but the Founders themselves made comparable functional distinctions. Even more important, the Founders are commending this model to the future. As we have seen, they self-consciously rejected a draft that gave Congress a monopoly over the process of constitutional amendment. Rather than eliminating all mention of the creative days when “conventions” ruled in the name of the People, their text holds this option out as an essential aspect of American constitutional development.
Not that the text disparages the role of normal institutions of American government. Instead, it seeks to replicate one of the most distinctive features of Founding practice—the unconventional way in which the Federalists repeatedly sought to gain official confirmation of the decisions made in their legally anomalous conventions. Thus the text does not envision the next convention coming out of nowhere. Instead, it will be called into existence by the very bodies—state legislatures—that breathed life into Philadelphia; the text expresses a similar alternation of official and unconventional authority at the triggering and ratification stages (while speaking delphically on this matter in addressing the final stage of constitutional consolidation).
A deep idea is lurking here. Under the American Constitution, standard institutions are not expected to defend their authority at all cost. They are explicitly invited to work in an uneasy partnership with unconventional institutions that speak in the name of the People. While normal institutions may defer to the plebiscitary claims of revolutionary reformers meeting in anomalous fora, they continue to play a crucial stabilizing role, sustaining deep constitutional continuities even at times of radical institutional disruption. By this means, the text invites us to imagine that Americans may manage to transform moments of grave crisis into democratic triumphs of constitutional creativity. Is this unconventional solution a promising response to crisis?
We shall see. But I first want to return to the Founding and correct what might seem an excessively triumphalist account. While I am unembarrassed in applauding the historic breakthrough achieved by the federal and state conventions, I hardly wish to deny that the Federalists fell far short of the ideal of popular sovereignty, even as it was understood in the eighteenth century. When judged in modern terms, the Founding looks even worse.
Confronting these hard facts is not only essential for a balanced view. It plays an important role in my larger argument. Thus far, I have been using strictly legal tools in my effort to persuade you to abandon a hypertextualist understanding of constitutional change—appealing to the express language of Article Five, the original understanding, the nature of the Founding precedent, and the like. If these haven’t completely discredited hypertextualism, perhaps they have at least created some large doubts?
Here is where my moral critique enters. Perhaps you might be justified in granting Article Five a monopoly on constitutional change if the Founding had approximated the ideal of popular sovereignty more closely than any later constitutional transformation in American history. But the facts refute such a supposition. While the constitutional practice of the Reconstruction Republicans and New Deal Democrats had their own significant failings, they were, in many respects, far superior to the Federalists’. Given these Founding deficits, it seems morally bizarre, as well as legally inappropriate, to grant the Federalists the constitutional authority to lay down the rules for subsequent efforts to speak in the name of the People. To the contrary, it is only because Reconstruction Republicans and New Deal Democrats managed to correct some of the more obvious Founding failures that we are justified in refusing to throw the Federalist precedent into the historical junk heap. The hypertextualist, in short, is not only historically wrong but morally obtuse to suppose that the Federalists provide us with the last word on constitutional revision. Once we scrutinize their moral failures, it becomes even clearer that the Founding deserves to be treated as at best the beginning, but not the end, of an ongoing American struggle for popular sovereignty.
Three failures stand out. The most obvious is the Founders’ politics of exclusion. To win the right to speak for the People, the Federalists did not suppose they needed to appeal to women or slaves or Native Americans. While the Convention’s practice was strikingly democratic for its time, it does not stand up to more modern understandings. In contrast, the higher lawmaking practices of Reconstruction and the New Deal—though hardly ideal—embraced far more democratic conceptions of We the People. As we shall see, black Americans first entered constitutional history in a big way with the unconventional ratification of the Fourteenth Amendment. Women voters had won the suffrage by the time Americans responded to the Great Depression by revolutionizing their constitutional traditions. Even today, we remain a long way from the ideal of a citizenry in which each American has a more-or-less equal voice in constitutional politics. But the Founding project in dualist democracy would have lost all credibility if Americans had not moved far beyond the narrow Founding conception of We the People.
Next to this great matter of exclusion, the other Founding failures may seem like small potatoes. But they are not minor when judged by any other standard. The first problem involves the Federalists’ refusal to seek a direct electoral legitimation for the Philadelphia Convention. As critics repeatedly pointed out,32 the Convention would have greatly enhanced its authority if its members had been elected by the People directly, rather than appointed by state legislatures. Under this scenario, the Philadelphia meeting should have simply issued a call for another convention—this one composed of elected delegates who possessed a clearer mandate for revolutionary reform. Wouldn’t such a convention have had a much plainer mandate to speak for the People?
But the Federalists were not conducting a philosophy seminar. They were trying to win. Another round of elections would have given Anti-Federalists a chance to win a lot of seats at the next convention, enabling them to defeat the Federalists’ centralizing ambitions. The majority in Philadelphia were utterly unwilling to take this chance. It had taken a lot of hard work to get to Philadelphia, and Madison & Co. were grimly determined to make the most of their opportunity.
In response to their critics, Madison and others salved their consciences by pointing out that the People were perfectly free to reject the Convention’s handiwork by selecting Anti-Federalist delegates for the ratifying conventions. Didn’t this fact justify the Philadelphia Convention in proceeding despite the delegates’ failure to win direct popular election?
Not really. It is true, of course, that the Convention’s democratic credentials would have been bogus if it had refused to allow any electoral process to test the new Constitution. Nonetheless, the Philadelphians were asserting a very great power in forcing the state conventions to consider its proposal instead of countless others that might have been advanced. After all, lots of the alternatives might have prevailed in an up-or-down vote in the state ratifying conventions. But it was the thirty-eight signatories at Philadelphia who effectively determined which one of these proposals would be given a chance. To make matters worse, these unelected gentlemen asserted the authority to trigger a decisive change in ratification rules, which proved absolutely essential to the success of their Constitution.
Given the immense practical importance of these proposal and triggering functions, the Federalists seriously impaired their legitimacy by taking their shortcut—at least when compared with the more democratic paths pursued by later unconventional actors. Both Reconstruction Republicans and New Deal Democrats had to win many more popular elections than their Federalist counterparts before they earned the constitutional authority to make similar decisions in the name of the People. In this important particular, it is they, not the Federalists, who provide the stronger precedents in popular sovereignty.
Turning next to problems of ratification, it is useful to distinguish between the quality of the Founding debate and the quantity of Federalist support. Qualitatively, the debate was remarkably vigorous and often of high quality—though this was also true of the debates generated during Reconstruction and the New Deal. The Founding looks a lot weaker, however, when we turn to quantitative issues. While the overwhelming majority of white males were eligible to vote for convention delegate,33 participation rates were unspectacular. In only three states was voter turnout higher than the historical norm; in three, lower; in the rest, about the same.34 Some elections were held in the dead of winter, not the best time for large turnouts.35 Participation was further depressed by the fact that balloting was not combined with votes for other positions. This meant that candidates for other offices did not have an incentive to bring their followers to the polls, who then might also cast a ballot for a convention delegate.36
Worse yet, we will never know for certain whether the Federalists won a majority of the vote, let alone the decisive kind of majority required by the theory of dualist democracy.37 We simply do not have much reliable electoral data; and these scraps do not support strong claims.38 In contrast, the electoral returns provide firmer support to the claims of a popular mandate made by Reconstruction Republicans and, especially, New Deal Democrats at later turning points.
Not that two centuries of development have left us anywhere near an ideal system of higher lawmaking. While the achievements of Reconstruction and New Deal have compensated in part for some Founding failures, they have also contributed new weaknesses to the evolving structures of dualist democracy. Only one thing is clear: Rather than recoiling at the extent to which Reconstruction Republicans and New Deal Democrats departed from the principles and procedures of Article Five, we should be grateful to these latter-day Americans for pushing the struggle for popular sovereignty far beyond the point where the Federalists left it.
At this stage, hyperformalists tend to retreat to a jurisprudential defense of their position. Article Five, they rightly point out, lies at the conceptual core of the American legal system. Consider, for example, Five’s relationship to more famous parts of the Constitution, like the First Amendment—protecting free speech, assembly, and religion. While these guarantees define the substance of American freedom, they owe their status as law to Article Five: We could not identify the First Amendment as legally binding if it had not been proposed and ratified in conformity with Article Five. More generally, Five provides a fundamental conceptual tool for distinguishing law from politics. Only with the aid of such “rules of recognition” can lawyers and citizens distinguish between judicial disputes over “the law as it is” from political struggles over “the law as it may become.” Of course, the hypertextualist does not expect his rule-oriented version of Article Five magically to dissolve all disputes over the meaning of American law. Even after they recognize the First Amendment as binding law, judges must still interpret the meaning of famously difficult phrases like “the establishment of religion.” But these interpretive difficulties should not blind us to the role played by Article Five in focusing legal vision. For instance, I know people who think that, despite the First Amendment, America should create a religious establishment. Even they do not suppose, however, that the Constitution already authorizes the establishment of a Church of America comparable to the Church of England. A partisan who made such a claim would only reveal how deeply she had confused her own personal ideals with the principles established by the rule of law. But it is only Article Five that allows us to explain to would-be establishmentarians why they are mistaken in ignoring the First Amendment.
In elaborating this point, my hypertextualist interlocutor builds on a jurisprudential school that has been (more or less) dominant throughout the twentieth century: legal positivism. Within his account, my rejection of Article Five’s exclusivity threatens to dissolve the very idea of a “rule of recognition,” and hence the very possibility of the rule of law.
There are two ways to resolve this anxiety. The first is to attack positivism head-on; the second is to reinterpret it. Though trashing positivism has been a popular pastime over the last quarter-century,39 I cannot join this particular bandwagon without making nonsense of my central claim: that in America, the People rule, and judges and other officials have an obligation to follow the People when, after appropriate public debate and decision, a mobilized majority hands down new principles to guide the polity. If this dualistic promise is not sheer puffery, positivists are right to insist on “rules of recognition.” How else is a judge to determine when the People have spoken? If I cannot explain how, in principle, a judge (or other law-abiding) citizen is to distinguish higher law from his private moral convictions, dualist democracy is hollow at its core.
I accept this challenge—with the proviso that we not settle for a caricature. If my positivist friends demand a “rule of recognition” that permits machine-like application, I will not be able to oblige. But this should prove disconcerting only to those people—if they still exist—who remain entirely in the grip of machine metaphors. While rules have a place in the law, does anybody really think they exhaust the category of legal judgment? Certainly not H. L. A. Hart, who introduced the notion of a “rule of recognition” in his classic Concept of Law.40 Since humans are not machines, they will not be satisfied with rigid rules in their quest for discriminating judgment. They will also work out criteria that are based on the elaboration of abstract principles and insights into the implications of great historical precedents. These reflections resist algorithmic reduction into cut-and-dried rules, but a humanistic positivism should not purge these elements from an account of the legal system’s “basic criteria of recognition.” The challenge for lawyers and citizens is to become self-conscious about the use of these humanistic elements of legal judgment that elude rule-like formulation.
To begin this ongoing process, I focus on a conceptual puzzle that may generate great lawyerly resistance, but it is resistance which dissolves upon further reflection. This threshold objection focuses on my emphasis on the legally problematic aspects of the Founding and subsequent exercises in higher lawmaking: “If unconventional lawmaking involves illegal activities, how can it be a matter for legal analysis? Isn’t the legal analysis of illegality a contradiction in terms?”
Not at all. Lawyers do it all the time. A good example comes from property law. The doctrine of adverse possession allows a concededly illegal occupant of land to perfect his title despite the efforts of the legal owner to regain possession. To qualify for this extraordinary privilege, the adverse possessor cannot slip onto some land in the dead of night and declare himself the rightful owner on break of morning. Instead, the law imposes a set of rigorous conditions—some of which bear a family resemblance to those elaborated in our study of the Founding precedent.41 For example, property law requires an adverse possessor to assert his proprietary claims to the general public and induce others to accept these claims in practice. This is also true of unconventional lawmaking: without popular acceptance, a “convention’s” claims to constitutional authority cannot be based upon the Founding precedent.
Similarly, the law does not allow the adverse possessor to oust the true owner unless he has successfully maintained his dominion for many years. So too in constitutional law. Popular sovereignty cannot be won in a single moment. As at the Founding, a rising reform movement must engage in a temporally extended process—in which it is obliged to defend its claims to speak for the People time and again in a series of escalating institutional contests for popular support.
Another parallel: most American courts protect only those possessors who have publicly asserted a legal right to occupy the property. Of course, this “claim of right,” as it is called, can’t hold up in court—otherwise the claimant wouldn’t need the doctrine of adverse possession to protect his interests. Nonetheless, the courts demand some gesture toward legality, however defective it may turn out to be on inspection.
An analogous pattern emerges from our constitutional case studies. It is not as if the Federalists secretly broke into the Assembly Hall in Philadelphia in the manner of a common thief. They prepared the way for their possession by gaining legalistic authorizations from their state legislatures, and they continued to buttress their appeals to the People with legalistic support from preexisting institutions. These legalistic supports were plainly inadequate, but they did exist, and they gave the Federalist campaign a distinctive quality. Just as an adverse possessor’s claim of right distinguishes him from the common thief, the Federalists’ unconventional bandwagon distinguished them from outright usurpers disdainful of all preexisting forms of legal authority.
There are disanalogies as well. The most important involves the different forms of community acceptance central to the two cases. Adverse possession is grounded in the common law’s glorification of custom as a privileged form of community recognition. It may take twenty years or more of uninterrupted daily practice before the courts will allow the adverse posssessor to perfect his legal claims. But it took the Federalists only four years to win a sometimes-grudging recognition that the People had spoken in support of their new Constitution. Property law requires the claimant to establish that his use has been uncontested by others; but the Founding precedent suggests that an act of popular sovereigny is marked by an escalating series of popular contests, in which legitimacy is established by mobilized acts of consent, not passive acts of acquiescence.
These analogies and disanalogies warrant further exploration. But I have said enough to make my main point. Rather than calling upon lawyers to engage in an absurdly paradoxical analysis of illegality, I am asking them to use the same sophistication that property lawyers have deployed for centuries. Conceptually, this involves the use of multiple time frames in legal analysis. As the doctrine of adverse possession teaches, even if an actor is breaking some established legal norms at Time One, his conduct may look very different when placed within the context of a longer temporal pattern that includes Time Two. If property lawyers can engage in this dynamic form of multi-frame analysis, why not constitutional lawyers?
Perhaps it may prove unnecessary to engage in this more complex legal style during periods of normal politics, when all the major protagonists are willing to play by more or less the same rules. But constitutional law is also made for the great crises of the republic, when the authority and meaning of the old rules becomes deeply problematic—and the American people are called, once again, to give new marching orders to their representatives. At these times, dynamic multi-frame analysis becomes imperative. Without it, we shall never come to grips with the distinctive interactions between established institutions and revolutionary reformers that enabled the American people to confront the burning issues of the nineteenth and twentieth centuries, and then—after much bitter, if democratic, debate—to set their government on a new course.
*Article Five concludes with two provisos: “Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the First Article [dealing with the slave trade and direct taxation]; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”