Antifederalist No. 49 

ON CONSTITUTIONAL CONVENTIONS (PART 1) 


     The following essay is in two parts: the first is by 
"MASSACHUSETTENSIS," and is reprinted from The Massachusetts 
Gazette of January 29, 1788; the second part was written by "AN 
OLD WHIG," and is taken from The New-York Journal of November 27, 
1787. 


     That the new constitution cannot make a union of states, but 
only of individuals, and purposes the beginning of one new 
society, one new government in all matters, is evident from these 
considerations, viz: It marks no line of distinction between 
separate state matters, and what would of right come under the 
control of the powers ordained in a union of states.  To say that 
no line could be drawn, is giving me the argument. For what can 
be more absurd than to say, that states are united where a 
general power is established that extends to all objects of 
government, i.e., all that exist among the people who make the 
compact?  And is it not clear that Congress have the right (by 
the constitution), to make general laws for proving all acts, 
records, proceedings, and the effect thereof, in what are now 
called the states? Is it possible after this that any state act 
can exist, or any public business be done, without the direction 
and sanction of Congress, or by virtue of some subordinate 
authority?  If not, how in the nature of things can there be a 
union of states?  Does not the uniting of states, as states, 
necessarily imply the existence of separate state powers? 
     Again, the constitution makes no consistent, adequate 
provision for amendments to be made to it by states, as states.  
Not they who drew up the amendments (should any be made), but 
they who ratify them, must be considered as making them.  Three 
fourths of the legislatures of the several states, as they are 
now called, may ratify amendments-that is, if Congress see fit, 
but not without.  Where is then any independent state authority 
recognized in the plan?  And if there is no independent state 
authority, how can there be a union of states?  But is it not a 
question of importance why the states in their present capacity, 
cannot ratify the original?  I mean, why the legislatures of the 
several states cannot do this business?  I wish to be informed 
where to find the regular exercise and legal sanction of state 
power, if the legislative authority of the state is set aside.  
Have the people some other constitutional means by which they can 
give their united voice in state affairs?  This leads me to 
observe, that should the new constitution be received as it 
stands, it can never be proved that it originated from any proper 
state authority; because there is no such authority recognized 
either in the form of it, or in the mode fixed upon for its 
ratification.  It says, "We the people of the United States," 
etc., make this constitution; but does this phrase, "We the 
people of the United States," prove that the people are acting in 
state character, or that the several states must of necessity 
exist with separate governments? Who that understands the subject 
will believe either? ... 
     The plan does not acknowledge any constitutional state 
authority as necessary in the ratification of it.  This work is 
to be done by a mere convention, only in consequence of mere 
recommendation; which does by no means amount to a proper state 
act.  As no state act can exist independent of the supreme 
authority of the state, and this authority is out of the question 
in the ratification of the new constitution, it clearly follows 
that the ratifying of it, by a mere convention, is no proper 
state business.  To conclude, the people may make the original, 
but the people have no right to alter it. Congress may order this 
matter just as they please, and consequently have whom they 
please elected for governors or representatives, not of the 
states but of the people; and not of the people as men but as 
property. . . . 
            MASSACHUSETTENSIS 


     It appears to me that I was mistaken in supposing that we 
could so very easily make trial of this constitution, and again 
change it at our pleasure.  The conventions of the several states 
cannot propose any alterations-they are only to give their assent 
and ratification.  And after the constitution is once ratified, 
it must remain fixed until two thirds of both the houses of 
Congress shall deem it necessary to propose amendments; or the 
legislatures of two thirds of the several states shall make 
application to Congress for the calling a convention for 
proposing amendments - which amendments shall not be valid until 
they are ratified by the legislatures of three fourths of the 
several states, or by conventions in three fourths thereof, as 
one or the other mode of ratification may be proposed by 
Congress.  This appears to me to be only a cunning way of saying 
that no alteration shall ever be made; so that whether it is a 
good constitution or a bad constitution, it will remain forever 
unamended.  Lycurgus, when he promulgated his laws to the 
Spartans, made them swear that they would make no alterations in 
them until he should return from a journey which he was then 
about to undertake.  He chose never to return, and therefore no 
alteration could be made in his laws.  The people were made to 
believe that they could make trial of his laws for a few months 
or years, during his absence, and as soon as he returned they 
could continue to observe them or reject at pleasure.  Thus this 
celebrated republic was in reality established by a trick.  In 
like manner the proposed constitution holds out a prospect of 
being subject to be changed if it be found necessary or 
convenient to change it; but the conditions upon which an 
alteration can take place, are such as in all probability will 
never exist.  The consequence will be that when the constitution 
is once established it never can be altered or amended without 
some violent convulsion or civil war. 
     The conditions, I say, upon which any alterations can take 
place, appear to me to be such as never will exist.  Two thirds 
of both houses of congress, or the legislatures of two thirds of 
the states, must agree in desiring a convention to be called.  
This will probably never happen.  But if it should happen, then 
the convention may agree to the amendments or not, as they think 
right; and after all three fourths of the states must ratify the 
amendments.  Before all this labyrinth can be traced to a 
conclusion, ages will revolve, and perhaps the great principles 
upon which our late glorious revolution was founded, will be 
totally forgotten.  If the principles of liberty are not firmly 
fixed and established in the present constitution, in vain may we 
hope for retrieving them hereafter. People once possessed of 
power are always loathe to part with it; and we shall never find 
two thirds of a Congress voting or proposing anything which shall 
derogate from their own authority and importance, or agreeing to 
give back to the people any part of those privileges which they 
have once parted with-so far from it, that the greater occasion 
there may be for a reformation, the less likelihood will there be 
of accomplishing it. The greater the abuse of power, the more 
obstinately is it always persisted in.  As to any expectation of 
two thirds of the legislatures concurring in such a request, it 
is if possible still more remote.  The legislatures of the states 
will be but forms and shadows, and it will be the height of 
arrogance and presumption in them, to turn their thoughts to such 
high subjects. After this constitution is once established, it is 
too evident that we shall be obliged to fill up the offices of 
assemblymen and councillors, as we do those of constables, by 
appointing men to serve whether they will or not, and fining them 
if they refuse.  The members thus appointed, as soon as they can 
hurry through a law or two for repairing highways, or impounding 
cattle, will conclude the business of their sessions as suddenly 
as possible, that they may return to their own business.  Their 
heads will not be perplexed with the great affairs of state.  We 
need not expect two thirds of them ever to interfere in so 
momentous a question as that of calling a continental convention.  
The different legislatures will have no communication with one 
another, from the time of the new constitution being ratified to 
the end of the world.  Congress will be the great focus of power 
as well as the great and only medium of communication from one 
state to another.  The great and the wise and the mighty will be 
in possession of places and offices; they will oppose all changes 
in favor of liberty; they will steadily pursue the acquisition of 
more and more power to themselves and their adherents.... 
                       AN OLD WHIG