230 Years Ago Today, the Confederation Congress Calls for a Constitutional Convention

On February 21, 1787, the Confederation Congress resolved –

Whereas there is provision in the Articles of Confederation & perpetual Union for making alterations therein by the Assent of a Congress of the United States and of the legislatures of the several States; And whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States and particularly the State of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and such Convention appearing to be the most probable mean of establishing in these states a firm national government Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.
This resolution was based on a request made by commissioners of the states of Virginia, Delaware, Pennsylvania, New Jersey and New York, who had assembled at Annapolis, MD, to discuss interstate commerce. While that was the original topic of discussion, the commissioners soon realized that issues of interstate trade could not be disentangled from the inadequacy of the Articles of Confederation to address the current political and economic turbulence.
The Commissioners from the aforementioned states included –
New York
ALEXANDER HAMILTON
EGBERT BENSON

New Jersey
ABRAHAM CLARK
WILLIAM C. HOUSTON
JAMES SCHUARMAN

Pennsylvania
TENCH COXE

Delaware
GEORGE READ
JOHN DICKINSON
RICHARD BASSETT

Virginia
EDMUND RANDOLPH
JAMES MADISON, Junior
SAINT GEORGE TUCKER

At the end of their meeting, they concluded by calling for a convention to meet in Philadelphia “on the second Monday of May next . . . to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” They transmitted the following to Congress –

That there are important defects in the system of the Federal Government is acknowledged by the Acts of all those States, which have concurred in the present Meeting; That the defects, upon a closer examination, may be found greater and more numerous, than even these acts imply, is at least so far probably, from the embarrassments which characterize the present State of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode, which will unite the Sentiments and Councils of all the States. In the choice of the mode, your Commissioners are of opinion, that a Convention of Deputies from the different States, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a preference from considerations, which will occur without being particularized.

Your Commissioners decline an enumeration of those national circumstances on which their opinion respecting the propriety of a future Convention, with more enlarged powers, is founded; as it would be a useless intrusion of facts and observations, most of which have been frequently the subject of public discussion, and none of which can have escaped the penetration of those to whom they would in this instance be addressed. They are, however, of a nature so serious, as, in the view of your Commissioners, to render the situation of the United States delicate and critical, calling for an exertion of the untied virtue and wisdom of all the members of the Confederacy.

Under this impression, Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction that it may essentially tend to advance the interests of the union if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.

 

Celebrating the 225th Anniversary of the Bill of Rights

Cross-posted with the ConSource blog.

According to a survey released last year, 1 in 10 Americans think the Bill of Rights includes the right to own a pet? It does not.

This statistic underscores the need for Americans to study the Bill of Rights.

Thursday, December 15 marks the 225th anniversary of the ratification of the Bill of Rights. 

We hope you will join with ConSource and others as we use this historic milestone to celebrate and study the Bill of Rights.

The Bill of Rights was ratified on December 15, 1791, when Virginia became the 10th of 14 states to approve the 10 amendments that came to be known as our Bill of Rights.

Thomas Jefferson wrote to James Madison in 1787 that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”

And, yet, the Constitution signed in September 1787 did not include a Bill of Rights.

To learn about how James Madison, who once called bills of rights “parchment barriers,” and the first federal Congress drafted the amendments we call the Bill of Rights, you can explore the legislative history of the Bill of Rights in the ConSource digital library.

You can also check out this concise history of the Bill of Rights written by our Executive Director Julie Silverbrook in the Washington Times special report celebrating the 225th anniversary of the Bill of Rights.

Another great free resource is this filmed discussion between historian Carol Berkin and ConSource Executive Director Julie Silverbrook on the history of the Bill of Rights.

On the evening of Thursday, December 15, we will host a special Bill of Rights Day program with the National Archives on the Bill of Rights in the 21st Century. 

Moderated by Supreme Court correspondent Jess Bravin from the Wall Street Journal, panelists include Judge Thomas Griffith, United States Court of Appeals for the District of Columbia Circuit; Judge Patricia Millett, United States Court of Appeals for the District of Columbia Circuit; and Judge Andre M. Davis, United States Court of Appeals for the Fourth Circuit. The program will be hosted at the National Archives (7th and Constitution Avenue, NW).

You can register to attend the program here, or, if you can’t join us in person, you can watch a livestream of the video here.

Wishing you a Happy Bill of Rights Day!

On the Anniversary of Pennsylvania Ratifying the Constitution, A Note On Why It’s So Important to Study the Fierce Debates over the Constitution in 1787-1788.

On December 12, 1787, Pennsylvania becomes the second state to ratify the United States Constitution. The state voted in favor of ratification by a vote of 46 to 23, and did so after enduring a serious Anti-Federalist challenge to ratification.

 

It’s important to not only make note of this historic anniversary for Pennsylvania and for the nation, but also to take pause and understand the fact that on September 17, 1787, the Constitution was nothing more than a proposal. “We the People,” in state ratifying conventions, decided whether or not “to ordain and establish the Constitution of the United States.”

As the late historian Pauline Maier wrote in her masterful tome “Ratification: The People Debate the Constitution: 1787 – 1788,”
Debate over the Constitution raged in newspapers, taverns, coffeehouses, and over dinner tables as well as in the Confederation Congress, state legislatures, and state ratifying conventions. People who never left their home towns and were little known except to their neighbors studied the document, knew it well, and on some memorable occasions made their views known. What the people and the convention delegates they chose decided had everything to do with making the United States in what George Washington called a ‘respectable nation.’
Pennsylvania was not the only state with significant opposition to the Constitution. I encourage folks interested in history and the Constitution to explore the other records of the other state ratifying conventions, as well, or pick up Pauline Maier’s excellent book on the topic.
In 1796, James Madison said,
…whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in . . . expounding the constitution. As the instrument came from them, it was nothing more than a draught of a plan, nothing but a dead letter, util life and validity were breathed into it, by the voice of the people, speaking through the several state conventions. If we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the states conventions, which accepted and ratified the constitution.
I hope citizens will heed Madison’s words and study not only on the Constitutional Convention records, but also the records of the state ratifying conventions, which are available, in part, in the ConSource digital library, but also through the masterful work of the historians and editors (including ConSource Board member John Kaminski) at the University of Wisconsin at Madison who continue to complete work on the Documentary History of the Ratification of the Constitution.
A good place to start this course of study is in Pennsylvania – where 21 of the 23 members of the ratifying convention who voted against ratification outlined their grievances in “The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents.” In their dissent, they raised the following objections –
[1] The proposed plan had not many hours issued forth from the womb of suspicious secrecy, until such as were prepared for the purpose, were carrying about petitions for people to sign, signifying their approbation of the system, and requesting the legislature to call a convention.
[2] The election for members of the convention was held at so early a period and the want of information was so great, that some of us did not know of it until after it was over, and we have reason to believe that great numbers of the people of Pennsylvania have not yet had an opportunity of sufficiently examining the proposed constitution.- We apprehend that no change can take place that will affect the internal government or constitution of this commonwealth, unless a majority of the people should evidence a wish for such a change; but on examining the number of votes given for members of the present state convention, we find that of upwards of seventy thousand freemen who are intitled to vote in Pennsylvania, the whole convention has been elected by about thirteen thousand voters, and though two thirds of the members of the convention have thought proper to ratify the proposed constitution, yet those two thirds were elected by the votes of only six thousand and eight hundred freemen.
[3] We were prohibited by an express vote of the convention, from taking any question on the separate articles of the plan, and reduced to the necessity of adopting or rejecting in toto.-
The Dissent goes on to list the changes they’d make to the federal constitution –
We offered our objections to the convention, and opposed those parts of the plan, which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention.
1. The right of conscience shall be held inviolable; and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states, which provide for the preservation of liberty in matters of religion.
2. That in controversies respecting property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the federal courts, as in those of the several states.
3. That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation, as well in the federal courts, as in those of the several states; to be heard by himself and his counsel; to be confronted with the accusers and witnesses; to call for evidence in his favor, and a speedy trial by an impartial jury of his vicinage, without whose unanimous consent, he cannot be found guilty, nor can he be compelled to give evidence against himself; and that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
4. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.
5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.
6. That the people have a right to the freedom of speech, of writing and publishing their sentiments,therefore, the freedom of the press shall not be restrained by any law of the United States.
7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;10 and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
9. That no law shall be passed to restrain the legislatures of the several states from enacting laws for imposing taxes, except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters shall be levied by the authority of Congress.
10. That the house of representatives be properly increased in number; that elections shall remain free; that the several states shall have power to regulate the elections for senators and representatives, without being controuled either directly or indirectly by any interference on the part of the Congress; and that elections of representatives be annual.
11. That the power organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of time only as such state shall agree.
That the sovereignty, freedom and independency of the several states shall be retained, and every power, jurisdiction and right which is not by this constitution expressly delegated to the United States in Congress assembled.
12. That the legislative, executive, and judicial powers be kept separate; and to this end that a constitutional council be appointed, to advise and assist the president, who shall be responsible for the advice they give, hereby the senators would be relieved from almost constant attendance; and also that the judges be made completely independent.
13. That no treaty which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed, or made conformable to such treaty; neither shall any treaties be valid which are in contradiction to the constitution of the United States, or the constitutions of the several states.
14. That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public ministers and consuls; to cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states- between a state and citizens of different states- between citizens claiming lands under grants of different states; and between a state or the citizens thereof and foreign states, and in criminal cases, to such only as are expressly enumerated in the constitution, & that the United States in Congress assembled, shall not have power to enact laws, which shall alter the laws of descents and distribution of the effects of deceased persons, the titles of lands or goods, or the regulation of contracts in the individual states.
In the end, although there was serious dissent in Pennsylvania, the state ratifying convention voted in favor of ratification.

You can explore the full debates in the Pennsylvania ratifying convention in the ConSource digital library here.

The Pennsylvania Form of Ratification reads

In the Name of the People of Pennsylvania. Be it Known unto all Men that We the Delegates of the People of the Commonwealth of Pennsylvania in general Convention assembled Have assented to, and ratifyed, and by these presents Do in the Name and by the authority of the same people, and for ourselves, assent to, and ratify the foregoing Constitution for the United States of America. Done in Convention at Philadelphia the twelfth day of December in the year of our Lord one Thousand seven hundred and eighty seven and of the Independence of the United States of America the twelfth. In Witness whereof we have hereunto subscribed our Names.
Frederick Augustus Muhlenberg President George Latimer Benjn Rush Hilary Baker James Wilson Thomas M’Kean W Macpherson John Hunn George Gray Samuel Ashmead Enoch Edwards Henry Wynkoop John Barclay Thos. Yardley Abraham Stout Thomas Bull Anthony Wayne William Gibbons Richard Downing Thomas Cheyney John Hannum Stephen Chambers Robert Coleman Sebastian Graff John Hubley Jasper Yeates Heny Slagle Thomas Campbell Thomas Hartley David Grier John Black Benjamin Pedan John Arndt Stephen Balliet Joseph Horsfield David Deshler William Wilson John Boyd Tho Scott John Nevill Jno Allison Jonathan Roberts John Richards James Morris Timothy Pickering Benjn Elliot Attest James Campbell Secretary

Wyoming Passes First Law Granting Women the Right to Vote On This Day in 1869

The Wyoming territorial legislature passed the first woman’s suffrage law on December 10, 1869, and women voted in the state for the first time in 1870. The legislation extended suffrage to “every woman of the age of twenty-one years, residing in this Territory.”

At the time, there was no organized suffrage movement in the Wyoming territory. William Bright, who was persuaded by his wife that all citizens should have the right to vote, sponsored a bill to extend the franchise to women.

Bright’s colleagues in the territorial legislature had a variety of reasons for voting in favor his bill – some were motivated by a sense of fairness, others, unfortunately, viewed it as an opportunity to counteract the voting rights of newly enfranchised African American men, and for still others it was a way to gain publicity and persuade more pioneers to settle in the western territory.

Regardless of the motivation of the various territorial legislators, once Wyoming women got the right to vote, the state kept up its tradition of being a first for women. Wyoming went on to become the first state or territory with female jurors, female justices of the peace, and, in 1924, it became the first state to elect a female governor (Nellie Tayloe Ross).

Before Wyoming entered the union in 1890, it passed a new state constitution in 1889, guaranteeing women the right to vote. When the U.S. Congress threatened to withhold statehood over the issue, Wyoming officials responded that the territory would rather remain a territory for 100 years than join the union without women’s suffrage. Congress ultimately relented.

Note: Although, Wyoming is the first state with a law and then state constitution explicitly guaranteeing women the right to vote, women first voted in the New Jersey under its 1776 Constitution, which vaguely stated that “all inhabitants” of the state could vote. Women voted in New Jersey until 1807 when the state legislature passed a law limiting suffrage to free white males.

 

On This Day in 1787, Delaware Becomes the First State to Ratify the U.S. Constitution

 

delaware-license

On December 7,  1787, Delaware becomes the first state to ratify the Constitution, doing so by a unanimous vote.

The Delaware Form of Ratification reads

We the deputies of the People of the Delaware State, in Convention met, having taken into our serious consideration the Fœderal Constitution proposed and agreed upon by the Deputies of the United States in a General Convention held at the City of Philadelphia on the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven, Have approved, assented to, ratified, and confirmed, and by these Presents, Do, in virtue of the Power and Authority to us given for that purpose, for and in behalf of ourselves and our Constituents, fully, freely, and entirely approve of, assent to, ratify and confirm the said Constitution.
Done in Convention at Dover this seventh day of December in the year aforesaid, and in the year of the Independence of the United States of America the twelfth In Testimony whereof we have hereunto subscribed our Names-
SUSSEX COUNTY
John Ingram John Jones William Moore William Hall Thomas Laws Isaac Cooper Woodman Stockley John Laws Thomas Evans Israel Holland
KENT COUNTY
Nicholas Ridgely Richard Smith George Truitt Richard Bassett James Sykes Allen McLane Daniel Cummins senr.
Joseph Barker Edward White George Manlove
NEW CASTLE COUNTY
Jas. Latimer, President James Black Jno. James Gunning Bedford senr.
Kensey Johns Thomas Wattson Solomon Maxwell Nicholas Way Thomas Duff Gunng Bedford junr.
To all whom these Presents shall come Greeting, I Thomas Collins President of the Delaware State do hereby certify, that the above instrument of writing is a true copy of the original ratification of the Fœderal Constitution by the Convention of the Delaware State, which original ratification is now in my possession. In Testimony whereof I have caused the seal of the Delware State to be hereunto anexed.
Since 1933, the governors of Delaware have proclaimed December 7 as Delaware Day in honor of when Delaware became the first state to ratify the U.S. Constitution, thus making Delaware the first state in the new nation. Delaware also commemorates being the first state to ratify the U.S. Constitution with its license plates which read “The First State.”

Give the Gift of the Constitution on #GivingTuesday

#Giving Tuesday takes place tomorrow, November 29, 2016. It is an opportunity to participate in a national movement to make the holiday season about giving back to our communities and nation. It’s similar to how Black Friday and Cyber Monday have become days synonymous with holiday shopping.

This #GivingTuesday, I’m asking readers of my blog to give the gift of the Constitution by supporting the non-profit I have the privilege of running, The Constitutional Sources Project (ConSource).

There is an often-told story that at the end of the Constitutional Convention, Benjamin Franklin was approached by a woman who asked him what sort of government the delegates had created. Franklin famously replied, “A republic, if you can keep it.”

To keep it, we must teach it. You cannot defend what you do not understand. And so in order for citizens to defend the Constitution and the Bill of Rights, they must first understand it.

James Wilson, a founding father from Pennsylvania, once said that “[l]aw and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”

And, yet, countless reports and studies confirm that American citizens of all ages lack a basic understanding of our nation’s history and form of government.

Please consider donating to ConSource on #GivingTuesday to support our important work creating a comprehensive, easily searchable, fully-indexed, and freely accessible digital library of historical sources related to the creation, ratification, and amendment of the United States Constitution. Your donation will also support our educational resources and programs.

High quality life-long civics education is essential for the continued health of the American republic.

Please consider donating $100 or more today.

Your gift will help ConSource ensure that Americans of all ages value, in the words of Noah Webster, “the principles of virtue and of liberty,” and that we “inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.”

Amending the Constitution: Understanding Article V of the U.S. Constitution

There’s a lot of talk these days about amending the Constitution – whether it’s on the right with calls for a Convention of the States, or from the left with a new effort to abolish the electoral college.

I thought it might be useful to discuss how to amend the Constitution via Article V of the United States Constitution, and to provide a brief history of Article V.

Article V of the U.S. Constitution

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 it’s equal Suffrage in the Senate.

Two Ways to Amend the Constitution

Article V provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. Note: none of the 27 amendments to the Constitution have been proposed via the latter process.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

Note this language in Article V: “[N]o 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 it’s equal Suffrage in the Senate.” [Article I, Section 9, Clause 1 prohibits Congress from abolishing the slave trade prior to 1808; Article I, Section 9, Clause 4 reads “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.]

The Federalist: Explaining Article V

Federalist No. 43 (James Madison)

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. 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. It moreover 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 exception in favour of the equality of suffrage in the Senate was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the Legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.

Federalist No. 49 (James Madison)

The author of the “Notes on the state of Virginia,” quoted in the last paper, has subjoined to that valuable work, the draught of a constitution which had been prepared in order to be laid before a convention expected to be called in 1783 by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking original, comprehensive and accurate; and is the more worthy of attention, as it equally displays a fervent attachment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power, against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present enquiry, ought not to be overlooked.

His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution or correcting breaches of it, a convention shall be called for the purpose.”

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the grantors of the commission, can alone declare its true meaning and enforce its observance?

There is certainly great force in this reasoning, and it must be allowed to prove, that a constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.

In the first place, the provision does not reach the case of a combination of two of the departments against a third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one-third of its members, the remaining department could derive no advantage from this remedial provision. I do not dwell however on this objection, because it may be thought to lie rather against the modification of the principle, than against the principle itself.

In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are antient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side.

The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions, to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honour to the virtue and intelligence of the people of America, it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government; and whilst no spirit of party, connected with the changes to be made, or the abuses to be reformed, could mingle its leven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

But the greatest objection of all is, that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative, at the expence of the other departments. The appeals to the people therefore would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments, are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as, by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy: And their administration is always liable to be discoloured and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship and of acquaintance, embrace a great proportion of the most influencial part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.

But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.

It might however sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious colouring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of the measure, to which the decision would relate. The passions therefore not the reason, of the public, would sit in judgment. But it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government.

We found in the last paper that mere declarations in the written constitution, are not sufficient to restrain the several departments within their legal limits. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision, for that purpose. How far the provisions of a different nature contained in the plan above quoted, might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

Commentaries on the Constitution

Joseph Story in his Commentaries on the Constitution writes –

§ 1821. Upon this subject, little need be said to persuade us, at once, of its utility and importance. It is obvious, that no human government can ever be perfect; and that it is impossible to foresee, or guard against all the exigencies, which may, in different ages, require different adaptations and modifications of powers to suit the various necessities of the people. A government, forever changing and changeable, is, indeed, in a state bordering upon anarchy and confusion. A government, which, in its own organization, provides no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.

§ 1822. In regard to the constitution of the United States, it is confessedly a new experiment in the history of nations. Its framers were not bold or rash enough to believe, or to pronounce it to be perfect. They made use of the best lights, which they possessed, to form and adjust its parts, and mould its materials. But they knew, that time might develope many defects in its arrangements, and many deficiencies in its powers. They desired, that it might be open to improvement; and under the guidance of the sober judgment and enlightened skill of the country, to be perpetually approaching nearer and nearer to perfection. It was obvious, too, that the means of amendment might avert, or at least have a tendency to avert, the most serious perils, to which confederated republics are liable, and by which all have hitherto been shipwrecked. They knew, that the besetting sin of republics is a restlessness of temperament, and a spirit of discontent at slight evils. They knew the pride and jealousy of state power in confederacies; and they wished to disarm them of their potency, by providing a safe means to break the force, if not wholly to ward off the blows, which would, from time to time, under the garb of patriotism, or a love of the people, be aimed at the constitution. They believed, that the power of amendment was, if one may so say, the safety valve to let off all temporary effervescences and excitements; and the real effective instrument to control and adjust the movements of the machinery, when out of order, or in danger of self-destruction.

§ 1823. Upon the propriety of the power, in some form, there will probably be little controversy. The only question is, whether it is so arranged, as to accomplish its objects in the safest mode; safest for the stability of the government; and safest for the rights and liberties of the people.

§ 1824. Two modes are pointed out, the one at the instance of the government itself, through the instrumentality of congress; the other, at the instance of the states, through the instrumentality of a convention. Congress, whenever two thirds of each house shall concur in the expediency of an amendment, may propose it for adoption. The legislatures of two thirds of the states may require a convention to be called, for the purpose of proposing amendments. In each case, three fourths of the states, either through their legislatures, or conventions, called for the purpose, must concur in every amendment, before it becomes a part of the constitution. That this mode of obtaining amendments is practicable, is abundantly demonstrated by our past experience in the only mode hitherto found necessary, that of amendments proposed by congress. In this mode twelve amendments have already been incorporated into the constitution. The guards, too, against the too hasty exercise of the power, under temporary discontents or excitements, are apparently sufficient. Two thirds of congress, or of the legislatures of the states, must concur in proposing, or requiring amendments to be proposed; and three fourths of the states must ratify them. Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying amendments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may elapse before a deliberate judgment may be passed upon them, unless some pressing emergency calls for instant action. An amendment, which has the deliberate judgment of two-thirds of congress, and of three fourths of the states, can scarcely be deemed unsuited to the prosperity, or security of the republic. It must combine as much wisdom and experience in its favour, as ordinarily can belong to the management of any human concerns. In England the supreme power of the nation resides in parliament; and, in a legal sense, it is so omnipotent, that it has authority to change the whole structure of the constitution, without resort to any confirmation of the people. There is, indeed, little danger, that it will so do, as long as the people are fairly represented in it. But still it does, theoretically speaking, possess the power; and it has actually exercised it so far, as to change the succession to the crown, and mould to its will some portions of the internal structure of the constitution.