Historical Background on Amending the Constitution

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Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the 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; 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; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Prior to the Founding, the people of the United States experienced difficulties in attempting to amend the Nation’s first charter, the Articles of Confederation.1 Under the Articles, Congress and all of the states had to approve amendments before they would become effective.2 Perhaps unsurprisingly, attempts to amend the Articles to address perceived shortcomings, such as Congress’s lack of authority to raise revenues by levying import duties, were unsuccessful.3 Nonetheless, several state constitutions in existence at the time of the Founding provided for amendments.4 Moreover, at least one state, Vermont, successfully modified its charter by following the specific amendment procedures in its constitution.5 These early provisions for amendments in the Articles and state charters informed the Founder’s deliberations at the Convention.

During early debates over the Federal Constitution, the delegates agreed to consider language that would permit the states to amend the Nation’s charter without Congress’s approval.6 Proponents of including specific procedures for amending the Constitution maintained that such a mechanism would provide stability to the new government.7 For example, George Mason stated it was “better to provide for [amendments] in an easy, regular and Constitutional way than to trust [alterations] to chance and violence.” 8 He argued that states should have the power to amend the Constitution without Congress’s approval because the national legislature would inevitably abuse its power and ignore states’ calls for necessary changes.9 Other delegates viewed the inclusion of a provision for amending the Constitution as unnecessary or improper.10

The delegates did not consider the draft Article V language until a month before the end of the Federal Convention.11 At that time, the draft text required Congress to call a convention for proposing amendments to the Constitution upon the request of two-thirds of the states.12 Some delegates believed that this text made amendments too difficult and advocated for Congress to play a greater role in proposing amendments. For instance, Alexander Hamilton, who noted the difficulties in amending the Articles of Confederation,13 suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.14 In his view, Congress would perceive the need for amendments before the states.15 Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.16 James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.17 James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had applied for one.18 This language passed unanimously.19

The delegates also debated whether Article V should prohibit amendments on certain subjects. Some delegates from the southern states, including John Rutledge of South Carolina, opposed allowing amendments to existing provisions of the draft Constitution that already limited Congress’s power to (1) restrict the importation of slaves, or (2) levy taxes on land or slaves.20 Fervent disagreement between northern and southern states over slavery prompted inclusion of these provisions.21 To preserve the compromise on the issue of slavery, the delegates added a sentence to the draft of Article V prohibiting amendments on these subjects before 1808.22 At a later meeting of the convention, Roger Sherman and Gouverneur Morris proposed that no state should, without its consent, be deprived of equal suffrage in the Senate.23 This proposal, which sought to safeguard state sovereignty and the delegates’ delicate compromise on the structure of the national legislature,24 was agreed to without debate and appended to the end of the draft text.25

Finally, as the Convention drew to a close, the delegates agreed to include a means for the states to propose constitutional amendments. George Mason expressed concerns that, as drafted, Article V would permit Congress to block constitutional amendments favored by the states.26 Gouverneur Morris and Elbridge Gerry proposed to remedy this perceived problem by requiring Congress to call a convention of the states for proposing amendments upon the application of two-thirds of the states.27 James Madison did not see the need for this convention mechanism.28 He argued that Congress would be bound to propose amendments legislatively upon the request of two-thirds of the states.29 Nevertheless, Madison did not oppose including a provision allowing for a constitutional convention.30 The motion passed unanimously.31

Following the Convention, the debates over ratifying the Constitution briefly touched upon Article V’s procedures for amending the Nation’s charter. Federalists, who generally supported a strong central government, argued that Article V’s high vote thresholds for proposing and ratifying amendments would protect the Constitution from destructive changes, while permitting amendments to address significant shortcomings in the document.32 Anti-Federalists, on the other hand, expressed concerns that Article V would make amending the Constitution too difficult once it was ratified.33 Consequently, they advocated for “amendments” to certain subjects prior to submitting the Constitution to the states.34 Federalists opposed such amendments as premature.35

After the states ratified the Constitution, debates continued over amendments, including the adoption of a Bill of Rights.36 In his 1789 Inaugural Address, President George Washington alluded to these ongoing debates, stating that the people of the United States would ultimately judge when it was appropriate to exercise “the occasional power delegated by the fifth article of the Constitution.” 37

1: See, e.g., 2 The Records of the Federal Convention of 1787, at 558 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Madison’s notes, Sept. 10, 1787) (statement of Alexander Hamilton).
2: Articles of Confederation and Perpetual Union of 1781, art. XIII ( “And the Articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” ).
3: Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21 ( “[I]t is to this unanimous consent, the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.” ). See also 1 Constitutional Documents and Records, 1776–1787, at 140–41 (Merrill Jensen ed., 1976) (discussing a proposal to grant Congress the power to collect import duties).
4: See, e.g., Mass Const. of 1780, pt. 2, ch. 6, art. X (setting forth procedures for amending the Massachusetts Constitution that included two-thirds of eligible voters calling a convention for that purpose); Md. Const. of 1776, The Constitution, or Form of Government, cl. LIX (authorizing the state legislature to amend the Constitution by an affirmative vote before and after a new election, but requiring a higher vote threshold for approval of amendments affecting the government of the eastern shore); Vt. Const. of 1777, ch. 2, § XLIV (establishing a council empowered to call a convention for amending the Constitution).
5: Vt. Sec. of State, The Amendment Process, https://sos.vermont.gov/vsara/learn/constitution/amending-the-constitution/process/.
6: 1 Farrand’s Records, supra note 1, at 22 (Madison’s notes, May 29, 1787) ( “Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.” ).
7: 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787).
8: 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787).
9: 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787).
10: 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787).
11: 2 Farrand’s Records, supra note 1, at 461 (Journal, Aug. 30, 1787).
12: 2 Farrand’s Records, supra note 1, at 557 (Madison’s notes, Sept. 10, 1787).
13: 2 Farrand’s Records, supra note 1, at 558. As noted, the Articles of Confederation required Congress and all of the states to approve an amendment before it would become effective. Articles of Confederation and Perpetual Union of 1781, art. XIII ( “And the Articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” ).
14: 2 Farrand’s Records, supra note 1, at 558 (Madison’s notes, Sept. 10, 1787). In contrast to Hamilton’s views, some delegates expressed concerns that the draft Article V language made the amendment process too easy. For instance, Elbridge Gerry raised concerns that a majority of states at a convention could ratify amendments that would subvert state constitutions. 2 Farrand’s Records, supra note 1, at 557–58. See also Douglas Linder, What in the Constitution Cannot Be Amended?, 23 Ariz. L. Rev. 717, 720 (1981).
15: 2 Farrand’s Records, supra note 1, at 558 (Madison’s notes, Sept. 10, 1787).
16: 2 Farrand’s Records, supra note 1, at 558 (Madison’s notes, Sept. 10, 1787).
17: 2 Farrand’s Records, supra note 1, at 559.
18: 2 Farrand’s Records, supra note 1, at 559.
19: 2 Farrand’s Records, supra note 1, at 559.
20: 2 Farrand’s Records, supra note 1, at 559.
21: Linder, supra note 14, at 721. Some of the delegates were apparently concerned that amendments removing the limitation on Congress’s power to levy direct taxes without apportionment could result in federal taxes on slaves, who were considered property at the time. The Federalist No. 43 (James Madison) (stating that both exceptions in the first sentence on unamendable subjects “must have been admitted on the same considerations which produced the privilege defended by it” ).
22: 2 Farrand’s Records, supra note 1, at 559 (Madison’s notes, Sept. 10, 1787).
23: 2 Farrand’s Records, supra note 1, at 630–31 (Madison’s notes, Sept. 15, 1787).
24: Linder, supra note 14, at 722.
25: 2 Farrand’s Records, supra note 1, at 630–31 (Madison’s notes, Sept. 15, 1787).
26: 2 Farrand’s Records, supra note 1, at 629.
27: 2 Farrand’s Records, supra note 1, at 629.
28: 2 Farrand’s Records, supra note 1, at 629–30.
29: 2 Farrand’s Records, supra note 1, at 629–30.
30: 2 Farrand’s Records, supra note 1, at 629–30. In remarks that presaged later scholarly debates over the proposal of amendments by a convention of the states, Madison questioned how such a Convention would be formed and conduct itself. 2 Farrand’s Records, supra note 1, at 630. After the Convention, James Madison wrote in the Federalist Papers that Article V with the state convention mechanism “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.” The Federalist No. 43 (James Madison).
31: 2 Farrand’s Records, supra note 1, at 630 (Madison’s notes, Sept. 15, 1787).
32: The Federalist No. 43 (James Madison) ( “The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” ). See also The Federalist No. 22 (Alexander Hamilton) ( “When the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done; but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.” ).
33: For insight into the Anti-Federalist position on this issue, see Centinel II, Freeman’s J. (Phila.), Oct. 24, 1787, reprinted in 2 The Complete Anti-Federalist (Herbert L. Storing ed., 1981).
34: See id.
35: See generally The Federalist No. 85 (Alexander Hamilton) (providing a broad overview of the debate).
36: See President George Washington, First Inaugural Address (Apr. 30, 1789).
37: See id.