Article V Congressional Amendments or a Convention of States?

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In the latter half of 1788 the man whom history praised as the “Father of the Constitution” opposed an Article V general convention of the states. Recall from last week’s squib the various state demands for a convention after the establishment of the first Constitutional congress.

While few were entirely comfortable with the draft Constitution of September 17th 1787, Federalists in several states won over enough Anti-Federalists once they felt confident the new government would call an Article V convention to sort out the various amendments recommended by most of the eleven state ratifying conventions.

Although to all outward appearances the Constitution seemed safe after Virginia and then New York ratified on June 25th and July 26th 1788 respectively, James Madison distrusted the leading Anti-Federalists, especially Patrick Henry, whose thundering rhetoric at the Virginia convention horribly shook Madison’s confidence in the eventual establishment of Constitutional government. Several follow-on events confirmed in Madison’s mind that Anti-Federalists could still torpedo the new government.

First, Madison attributed North Carolina’s failure to ratify on August 4th to Patrick Henry’s leadership among Anti-Federalists in southern Virginia and much of the North Carolina uplands.

Second, the New York ratifying convention’s circular letter which called for an early Article V convention of states gave fresh hope to those who opposed the Constitution. Madison was convinced that Anti-Federalists remained powerful enough to “effect an early Convention composed of men who will essentially mutilate the system.”

Other leading, influential politicians such as Virginia Governor Edmund Randolph jumped aboard the early convention train.

Madison regarded New York’s circular letter as “a signal of concord and hope to the enemies of the Constitution everywhere.” He was convinced that “party and passion would drive an early convention” that would not reflect “the deliberate sense of the people.” To Thomas Jefferson he wrote, “an early convention was in every view to be dreaded in the present temper of America.” A year of experience under the new system will suggest better amendments than all the speculations to date. Efforts to amend before the Constitution was firmly established, while the public mind was in a feverish state would cause only division and instability.

Other disruptive forces were at work. The Harrisburg conference of September 1788 was organized to press for de-ratification of Pennsylvania’s December 1787 ratification.

Foreign interests were at play along America’s borders. While British troops still garrisoned forts in the Northwest Territory and New York, Spanish agents in the southwest fomented distrust and pressed Americans to secede and join Spain. Additionally, thanks to efforts by northern shipping interests to keep New Orleans closed to Ohio and Mississippi river commerce, the western counties of Virginia (Kentucky) voted almost en-bloc against ratification.

George Washington regarded the New York circular letter call for a second general convention as nothing less than a covert attempt to “undo all that has been done.” The perception of leading Federalists was that the survival of the nation and individual states were at stake. This was the precarious national mood when the confederation congress, on September 13th, set the first Wednesday in January 1789 for appointing presidential electors.

When Patrick Henry saw to it that Anti-Federalists were the first senators from Virginia, James Madison campaigned for a congressional seat and beat the Anti-Federalist James Monroe. He was aghast at the prospect of another general convention in which he expected Anti-Federal forces to not recommend helpful amendments, but rather harmful changes with the idea of upsetting the delicate compromises worked out by himself and his fellows at Philadelphia a year ago. Recall that due to the oath of secrecy at the Philadelphia convention the public was not aware how it was a close-run thing that nearly dissolved several times.

Despite the distrust stirred by Anti-Federalists, all but two of the first twenty-six senators were Federalists. Federalists also dominated the House of Representatives . A thoroughly Federalist congress, which was not going to foul the machinery of Constitutional government, also helped George Washington decide to accept the Presidency. Madison kept his promise to the Virginia ratifying convention; he submitted what history calls our Bill of Rights. Through these ten amendments congress allayed fears and promoted harmony which fended off the dissidents who wanted a second general federal convention.

Anti-Federalist’s 1787-1788 calls for a convention of states started a pattern; the people through their states begin to grumble and congress responds with either laws or suggested amendments of its own. Thus, state-based movements to propose amendments aren’t new. Just as the Anti-Federalists’ call for a convention of states nudged congress in 1789 to propose amendments instead, at various times in the future those who grew frustrated at a recalcitrant congress also initiated state applications for Article V conventions. Where the Philadelphia Constitutional convention was the last “pure convention” mode used to amend our governing form, congress typically stepped out ahead of building state momentum for an Article V convention.

Applications from the states prodded congress to propose the 17th, 18th, 22nd, and 25th Amendments, as well as statutes such as the Budget Control Act.1 When looked at this way, the state convention provision of Article V is far from “forgotten” or a “dead letter.” Instead, while the two methods to propose amendments are distinct, they’ve been used simultaneously at various times.

Today, our corrupt congress is far beyond the reach of self-reform. The money and perks of the existing system are too good to upset. It is up to We the People through our states to press for changes that result in either congressionally or state sourced amendments. This isn’t a radical idea or approach; it is essential to our national continuance.

The Constitution of any government which cannot be regularly amended when its defects are experienced, reduces the people to this dilemma – they must either submit to its oppressions, or bring about amendments by a civil war. The Constitution before us, if it be adopted, can be altered with as much regularity, and as little confusion, as any act of Assembly; not, indeed, quite so easily, which would be impolitic. But, it is a most happy circumstance that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made to the general sense of the people. – James Iredell, future associate Supreme Court justice, at the North Carolina Ratifying Convention of 1788.

Although the Constitution proved more successful in putting the American Revolution into practice than its most devoted advocates imagined, the subsequent corruption of it is such that it long ago stopped securing unalienable rights. The remains of our republic face a choice: begin with repeal of the 17th Amendment through either the state or congressionally derived process and go from there or face the civil war dilemma posited by James Iredell.

1. Bybee, J. S. (1997). Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment. Scholarly Commons @ UNLV Law, 501 – 567. 37, 38.

General Reference: Maier, P. (2010). Ratification – The People Debate the Constitution. New York: Simon and Schuster, Inc.

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