The constitutional legitimacy viewpoint holds that the Second Continental Congress possessed genuine, if extra-legal, governing authority derived not from any prior written constitution but from the direct consent of the governed - and that this authority was sufficient to bind the colonies collectively, declare independence, wage war, and ultimately charter a new republic. Holders of this view argue that the Congress did not need prior legal sanction to act legitimately, because legitimacy in the founding era flowed from popular sovereignty, not from the permission of the Crown or Parliament. This position is held by a substantial strand of American constitutional scholars, historians of the founding period, and political theorists working within the natural law and social contract traditions.

Proponents of this viewpoint argue that the Second Continental Congress derived its authority from the same source the founders themselves invoked: the consent of the governed. The delegates were chosen by colonial assemblies, conventions, and committees of correspondence that were themselves expressions of popular will operating outside - and in deliberate opposition to - the framework of British imperial authority. Because the British constitutional order had, in the view of the colonists, forfeited its claim to obedience through repeated violations of natural rights and the English constitutional tradition, a new locus of legitimate authority was both necessary and philosophically coherent.

This argument draws heavily on John Locke's Second Treatise of Government, which the founding generation read closely and cited explicitly. Locke held that when a government dissolves itself by betraying its trust, the people retain the right to reconstitute authority. The Congress, on this reading, was not a usurper but the vessel into which dissolved authority had been poured by popular action.¹⁾

A key premise of this viewpoint is that legal and legitimate are not synonyms. The Second Continental Congress had no charter from the Crown, no statutory basis, and no precedent in British constitutional law. Holders of this view freely acknowledge this. Their argument is that the absence of prior legal authorization is irrelevant when the authorizing body itself has lost legitimacy. Revolutionary founding moments, by definition, cannot derive their authority from the order they are replacing. Holders of this view argue that to require this is to make revolution conceptually impossible and to beg the question in favor of established power.

Bruce Ackerman's framework of “constitutional moments” - periods of heightened popular engagement that produce binding transformations outside normal legal procedure - is sometimes invoked to make this point in a more formalized theoretical register.²⁾

Proponents also point to the Congress's actual exercise of sovereign functions as evidence of its legitimate authority. It raised armies, issued currency, conducted foreign diplomacy, negotiated treaties (ultimately including the Treaty of Paris of 1783), and managed the affairs of a functioning nation at war. The recognition of American independence by France in 1778 and by Britain in 1783 constituted, in the view of holders of this position, external validation of the Congress's governing authority under the law of nations as understood at the time.³⁾

Some advocates of this viewpoint emphasize that the Congress was not as radical a departure as it might appear. The colonial assemblies from which it drew had long exercised genuine self-governing authority, and the English constitutional tradition itself recognized parliamentary supremacy as resting on popular representation. The Congress, in this reading, was the logical extension of a constitutional tradition the colonists believed Parliament had already broken. Gordon Wood and Bernard Bailyn both document the ideological coherence of this position within the republican thought of the period, though they differ on emphasis.⁴⁾⁵⁾

The question of the Congress's constitutional legitimacy was contested in real time. Loyalists, most prominently Joseph Galloway, argued that the Congress had no legal standing and that its actions were treasonous usurpations. Galloway's Plan of Union, rejected by the First Continental Congress in 1774, proposed a middle path that would have preserved imperial connection while granting the colonies greater autonomy - precisely because he regarded extra-legal colonial action as constitutionally indefensible.⁶⁾

The patriot response, developed through pamphlets, assembly resolutions, and eventually the Declaration of Independence itself, was to shift the ground of argument from positive law to natural law. Thomas Jefferson's draft of the Declaration was, among other things, a constitutional brief: an argument that the King had violated the terms under which political authority could claim obedience, and that the people therefore had both the right and the duty to alter or abolish it.

After independence, the legitimacy question was largely resolved in practice by the ratification of the Articles of Confederation (1781) and later the Constitution (1788), both of which retrospectively affirmed the authority of the Congress by treating its acts as binding. The Northwest Ordinance of 1787, passed by the Confederation Congress, was carried forward and re-enacted by the new Congress under the Constitution - a deliberate act of continuity that acknowledged the prior body's legitimate, if imperfect, authority.

In later American constitutional thought, the legitimacy of the founding-era Congress has been treated as substantially settled, though historians continue to debate the nature and source of that legitimacy. The more active scholarly controversy concerns the Articles of Confederation period and whether the Confederation Congress was genuinely sovereign or merely a diplomatic assembly of sovereign states.

Thomas Jefferson - Principal author of the Declaration of Independence, Jefferson's argument for the Congress's authority was grounded in Lockean natural rights theory and the specific constitutional grievances of the colonies.

John Adams - A leading voice in the Congress itself, Adams defended its authority in correspondence and in his Thoughts on Government (1776) on grounds of republican self-governance.

Gordon S. Wood - Pulitzer Prize-winning historian whose work, particularly The Creation of the American Republic, remains a foundational account of the ideological basis for the Congress's governing legitimacy.⁷⁾

Bernard Bailyn - Harvard historian whose Ideological Origins of the American Revolution traced the intellectual tradition - particularly the radical Whig tradition - that gave the colonists a framework for claiming legitimate authority outside British constitutional forms.⁸⁾

Bruce Ackerman - Yale constitutional scholar whose theory of constitutional moments provides a contemporary theoretical framework for understanding how the Congress could exercise genuine constitutional authority without prior legal sanction.⁹⁾

Pauline Maier - Historian of the Declaration of Independence whose work emphasized the Congress's legitimacy as a representative body acting on behalf of constituent communities that had themselves authorized its existence.¹⁰⁾

A significant internal disagreement concerns where, exactly, legitimate authority resided. One strand holds that the Congress derived its authority from the people directly and therefore exercised a genuinely national sovereignty. Another strand - associated more with the Anti-Federalist tradition and later with states' rights thought - holds that the Congress was a body of sovereign state delegations, and that its authority was derivative of the states rather than the people at large. This disagreement has implications for how one reads the Constitution that followed: was it a continuation of national popular sovereignty, or a compact among sovereign states?

Even among those who accept the Congress's basic legitimacy, there is disagreement about the scope of that authority. Some hold that the Congress was fully sovereign during the war years and capable of binding acts across the full range of governmental functions. Others argue that its authority was inherently limited and temporary - adequate to the emergency of revolution and war, but requiring formal constitutional settlement to become durable. This debate bears directly on the legitimacy of specific acts, such as the issuance of Continental currency and the negotiation of foreign treaties without explicit state authorization.

Some holders of this viewpoint argue that the Congress's authority was confirmed and regularized by the Articles of Confederation, making the pre-Articles period legitimately extra-constitutional but the post-1781 period fully constitutional. Others treat the entire 1775-1789 period as a single founding moment in which legitimacy was in formation rather than fully established, and in which the Constitution of 1788 was the definitive act of constitutional settlement.

• Second Continental Congress - Main Topic
• Second Continental Congress - History
• Second Continental Congress - Loyalist Viewpoint
• Second Continental Congress - Debate
• Articles of Confederation - Constitutional Consensus
• Declaration of Independence - Legal Status Viewpoint
• Popular Sovereignty - Founding Era Viewpoint

~~FOOTNOTES~~