Raise your hand if you knew that James Madison opposed the second method in Article V to amend the Constitution. The New Americana (TNA) recently published a misleading and insult-laden column regarding the Article V state convention amendment process and Convention of States (COS) supporters. It illustrates how the most effective deceptions are built around an element of truth.
My focus here is one deception among several the author attempts to pawn; we are to believe that James Madison opposed the state amendment convention process of Article V. The TNA shamelessly attempts to deceive the reader into believing the very opposite of the truth, that the man who shepherded the Virginia Plan to fruition as a new Constitution of government opposed taking appropriate measures to keep it.
As a half-truthful proof, TNA relies on an unsourced comment from James Madison:
If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the congress . . . It would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides . . . [and] would no doubt contain individuals of insidious views, who . . . under the mask of seeking alterations popular in some parts . . . might have the dangerous opportunity of sapping the very foundations of the fabric . . . Having witnessed the difficulties and dangers experienced by the first convention, which assembled under every propitious circumstance, I should tremble for the result of a second, meeting in the present temper in America. (my emphasis)
The author next asserts, “With all due respect to Mr. (Mark) Levin, Judge Napolitano and other zealots, it is reasonable to assume that he (Madison) is the one with the expertise, not they.”
In what follows, I show how Madison, Levin, Napolitano, and COS supporters are all on the same team in support of the Article V State convention process to propose amendments. The whole truth is that due to the national temper in the last half of 1788, Madison was indeed mistrustful of a convention dominated by frustrated Anti-Federalists, whose purpose would be to undo what had been ratified, and do so before experience could identify the Constitution’s shortcomings.1
The Madison pull quote is from a letter to a fellow Virginian, George Lee Turberville, on November 2nd 1788. It was in response to a query from Turberville dated October 20th, in which Turberville sought Madison’s opinion regarding widespread support in Virginia for a second convention.
If the TNA post is read without knowing:
1.) The national mood, the temper of the nation in the last half of 1788,
2.) Madison’s authorship of the draft constitution and participation in the federal convention of 1787,
3.) The Federalist Papers,
4.) And the rest of the letter, one could mistakenly conclude that Madison found the provision in Article V pertaining to state amendments conventions to be fraught with enormous risks that far outweighed possible advantages.
1.) Temper of the Nation. The years 1783 through 1788 were, at best, unsettled. The economy was in severe depression; one modern study pegged GDP at hardly half that of 1776. Revenue from taxation couldn’t keep up with the enormous interest piling up on Revolutionary War loans. British garrisons still occupied western forts ceded to the US by the Treaty of Paris.
Although the ninth state, New Hampshire, ratified the Constitution in June of 1788, and was soon followed by Virginia and New York, anxiety over the new plan was such that North Carolina and Rhode Island didn’t join the Union until 1789 and 1790 respectively. Almost everyone had misgivings of some sort about the Constitution. Most states attached recommended amendments to their transmittals of ratification. These proposed amendments carried a veiled threat: “We are nervous, so amend the Constitution, or else.”
From the standpoint of federalism, ratification was sound. But from a popular viewpoint, ratification was tenuous, for only a small majority of all state delegates to the ratifying conventions voted in favor of the Constitution. More importantly, and after ratification, several leading Anti-Federalists implied that they did not intend to quietly retire from the fight. Among these respected men were George Mason and Patrick Henry. Mason approved of the Virginia Plan of government which included provision to amend the new Constitution.
As the first proponent of Article V at the federal convention of 1787, Mason’s refusal to endorse the Constitution carried great weight among Federalists and Anti-Federalists alike. Upon ratification by Virginia, he was among a loose group of Anti-Federalists who contemplated resistance and division of the Union into smaller confederacies. Had Patrick Henry, a man held in national esteem second only to that of George Washington, joined and led the resistance, there is no telling whether the proposed new government would have come together in March 1789.
Notwithstanding the benefit of hindsight, I don’t believe we can capture today the widespread national apprehension in 1788. A written plan of government was no guarantee of it succeeding or even forming. The states often withheld their delegates to the Continental Congress; what, for instance, was to prevent the state legislatures from not holding elections for congressmen, and not appointing senators?
This is the background in which James Madison and George Turberville corresponded. While Madison attended to duties at the Continental Congress in New York, Virginia legislator George Turberville kept Madison informed of the goings-on at the new state capital of Richmond. Given the number and influence of Anti-Federalists, especially in Virginia, it stands to reason that Madison sought, during the first session of the new congress, to avoid a general convention like that of 1787. To affect necessary amendments in 1789, Madison wisely preferred the first method in Article V, congressionally sourced amendments.
2.) Father of the Constitution. While Madison never accepted the title given him by history, he took a leading role in the development of the Virginia Plan presented by Virginia Governor Edmund Randolph to the federal convention on May 29th, 1787. By default, the thirteenth resolution advised an amendatory process conducted through the states:
Resolved that provision ought to be made for the amendment of the Articles of Union whenever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.
If, as the TNA promotes, Madison opposed the Article V state convention process, why didn’t he oppose the resolutions that took smoothed form months later in Article V?
3.) Federalist Papers. I won’t dwell here. Nothing in The Federalist criticizes the state convention process of Article V. In Federalist #43 of January 23rd 1788, Madison expressed unqualified support for Article V: it “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.” Are we to believe that Madison bounced from support to opposition between January and November?
4.) The Rest of the Letter. Madison opened the body of his letter to Turberville with: “You wish to know my sentiments on the project of another general Convention as suggested by New York.” New York ratified the Constitution (July 26th, 1788) in full confidence and under the assumption that the Constitution would soon be amended. It accompanied its ratification with a circular letter on July 28th calling on the other states to have Article V applications ready to submit to the first congress.
The circular was given a warm welcome in a Virginia legislature dominated by Patrick Henry, whose power was not underestimated by Madison. So awed was Madison of Henry’s abilities, that he attributed North Carolina’s failure to ratify the Constitution to Henry’s influence. In an August 1788 letter to Thomas Jefferson, Madison wrote that the circular letter had “given fresh hopes” to those who opposed the Constitution, and that “the object with them now will be to affect an early Convention composed of men who will essentially mutilate the system.” Similarly, in a September letter from George Washington to Madison, Washington regarded a state convention in the near-term as nothing less than a covert attempt to “undo all that has been done.”
Without listing specific objections, Madison penned in his letter to Turberville that he wished some of the Constitution’s faults had been corrected during the Philadelphia convention. But, since they weren’t, he was confident they would be addressed “according to the apparent sense of America.”
The question was, “which of the two modes in Article V were most appropriate?” In his opinion, a number of states were “averse and apprehensive” of the state amendments convention path toward ratification of necessary amendments. He wrote, “A convention therefore does not appear to be the most convenient or probable channel for getting to the object.” Madison’s estimate of the apparent sense of America led him toward the congressional mode of amending the Constitution.
Examine the last sentence of the TNA pull quote, and compare it to the original: “Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America and under all the disadvantages I have mentioned.” This cannot be logically interpreted as a general refutation of the state amendments convention process; it was merely disadvantageous at the time. In late 1788, Madison preferred the congressional route to amend the Constitution, as proved by his later submission, as a congressman from Virginia, of a Bill of Rights to the first congress in June of 1789.
5.) Conclusion. Having experienced a difficult, often exasperating federal convention occasionally on the verge of breaking up, followed by a couple weeks of rhetorical thunder from a relentless Patrick Henry during Virginia ratification, and considering the anxiety of the times, James Madison endorsed the congressional method as the more expedient of the two approaches for obtaining necessary amendments to the Constitution. The primary author of the Virginia Plan of government and Federalist papers that touched on Article V, did not cast a blanket disapproval on the state convention amendments mode in his private letter of November 1788. See postscripts below.
Sorry TNA, no sale.
Be strong, COS supporters! There is no reason to be demoralized by the TNA deception. We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
1. March 2018 Postscript: “He (Madison) opposed amendments before ratification because he feared they would cause serious contention among the states and help those who wanted to dissolve the Union.” Maier, P. (2010). Ratification – The People Debate the Constitution. New York: Simon and Schuster, Inc. 441.
2. December 2018 Postscript: Excerpts from a letter to George Eve, January 2nd 1789, Madison Writings page 426. “There are not a few States who will absolutely reject the proposal of a Convention, and yet not be averse to amendments in the other mode. Lastly, it is the safest mode. The Congress, who will be appointed to execute as well as to amend the Government, will probably be careful not to destroy or endanger it. A convention, on the other hand, meeting in the present ferment of parties, and containing perhaps insidious characters from different parts of America, would at least spread a general alarm, and be but too likely to turn everything into confusion and uncertainty.”
Alexander Hamilton, J. M. (1961). The Federalist Papers. New York: Penguin Books USA.
Banning, L. (1995). The Sacred Fire of Liberty – James Madison and the Founding of the Federal Republic. Ithaca, New York: Cornell University Press.