Step-by-step Convention Notes on Article V
- The Convention convened its first quorum on Friday, 25 May 1787.
- On Tuesday, 29 May 1787, Edmund Randolph presented the Virginia Plan.
- Resolution 13 was the initial amendment process proposed.
- 5 Jun 1787, first postpone. Of note, Charles Pinckney questions the propriety of it.
- 11 Jun 1787, loss of requirement to bypass national legislature
- Mason and Randolph argue for it but are ignored
- 13 Jun 1787, amended Virginia Plan, resolution renumber to 17
- 29 Jun 1787, Yates only note on Madison’s comment on Virginia Constitution
- 23 Jul 1787, agreed to keep as was on 13 Jun
- 6 Aug 1787, application of ⅔ of states makes its first appearance
- Plenipotentiary convention at this point
- Congress out of approval loop BUT issues the call
- 30 Aug 1787, Morris motion to allow legislature to call convention any time carried
- 10 Sep 1787, Gerry raises concern about resolution may supersede State Constitutions
- Hamilton points out that the resolution would allow states to grab power unchecked. Leads to Congressional proposal of amendments.
- Madison raised concern about vagueness of certain phrases
- following discussion leads to first part of current Article V
- 15 Sep 1787, final and most complete discussion on Article V
- George Mason inverts Hamilton’s argument that approval of Congress is always involved. Leads to current system where states can bypass Congress after the call.
The framers did not see the significance of having both methods of amendment proposals right away. Initially, resolution 13 did not allow the new General Government to have any involvement in the amendment process. Few saw the danger of the national government’s ability to block amendments from the states. Later dialog would show a number of key positions:
- Counter to his later claims, Charles Pinckney did not even see the “propriety” of allowing states to amend the Constitution. The proof of this is on 5 Jun 1787.
- Madison did not appreciate the requirement to bypass the national government.
- It definitely appears that Randolph and Mason were the main proponents of allowing the states to amendment the Constitution without national interference.
- Hamilton was the one to see the tug-of-war inherent in federalism and championed the national amendment path on 10 Sep 1787.
- Elbridge Gerry was concerned that the amendment process might be used to subvert state Constitutions – due to what would be the Supremacy Clause.
- Roger Sherman was concerned that a group of states might harm or erase a smaller state by amendment. His concern sparked the notion of a separate ratification step, with James Wilson suggesting first 2/3 then ¾ of the states to ratify. Madison then moved for postponement to consider a complete rewrite. Sherman’s point also led to the clause prohibiting depriving a state of its equal representation in the Senate. On the final day of discussion, he tried to get unanimous ratification and then moved to delete amendment altogether. Brearly actually seconded his motion to remove it, but it was voted down (LUCKILY).
- John Rutledge spoke for the slavery contingent. This led to the ban on amendment to the slavery issue for 20 years.
29 May 1787
Gov Edmund Randolph proposes the Virginia Plan. Item 15 was the amendment process.
- Resd. that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider & decide thereon.
30 May 1787
The propositions of Mr. RANDOLPH which had been referred to the Committee being taken up. He moved on the suggestion of Mr. G. Morris, that the first of his propositions to wit “Resolved that the articles of Confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty & general welfare -should be postponed
5 Jun 1787
Propos: 13. “that provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the Natl. Legislature,” being taken up,
Mr. PINKNEY doubted the propriety or necessity of it.
Mr. GERRY favored it. The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Govt. Nothing had yet happened in the States where this provision existed to prove its impropriety.
The proposition was postponed for further consideration: the votes being, Mas: Con. N. Y. Pa. Del. Ma. N. C.-ay Virga. S. C. Geo: no
11 Jun 1787
Pivotal day: the original phrase to avoid the national legislature gets postponed – and forgotten. Mason and Randolph argue for its importance.
The JOURNAL shows the following entries:
It was then moved and seconded to agree to the following resolution
Resolved that provision ought to be made for the amendment of the articles of union whensoever it shall seem necessary.
On the question to agree to the same, it passed in the affirmative
It was agreed to postpone the following clause in the 13th resolution submitted by Mr
Randolph namely
“and that the assent of the national legislature ought not to be required thereto”
MADISON’s NOTES:
Resolution 13, for amending the national Constitution hereafter without consent of Natl. Legislature being considered, several members did not see the necessity of the Resolution at all, nor the propriety of making the consent of the Natl. Legisl. unnecessary.
Col. MASON urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendmt.
Mr. RANDOLPH enforced these arguments. The words, “without requiring the consent of the Natl. Legislature” were postponed. The other provision in the clause passed nem. con.
YATES: 13th Resolve — the first part agreed to.
13 Jun 1787
Agreed to vote on Amended Virginia Plan with 19 Resolutions. 13 renumbered to 17.
- Resd. that provision ought to be made for the amendment of the Articles of Union
whensoever it shall seem necessary.
29 Jun 1787
YATES: Mr. Madison. … The Virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended…
This comment is conspicuously absent from Madison’s notes. He was the architect of the Virginia Constitution at the time, and it had no amendment process. Madison may have been embarrassed by his lack of appreciation of the amendment process before 8 Jun 1789 when he proposed 9 amendments to the new Constitution which morphed into the Bill of Rights. He knew that Article V saved the Constitution.
6 Aug 1787
Mr. RUTLIDGE delivered in the Report of the Committee of detail as follows: a printed copy being at the same time furnished to each member:
XIX On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.
30 Aug 1787
Art: XIX taken up.
Mr. Govr. MORRIS suggested that the Legislature should be left at liberty to call a Convention, whenever they please.
The art: was agreed to nem: con: (meaning Morris’ comment was ignored)
5 Sep 1787
Mr. GERRY gave notice that he should move to reconsider articles XIX. XX. XXI. XXII.
10 Sept 1787
Mr. GERRY moved to reconsider Art XIX. viz. “On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the U. S. shall call a Convention for that purpose.” [see Aug. 6.] This Constitution he said is to be paramount to the State Constitutions. It follows, hence, from this article that two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State-Constitutions altogether. He asked whether this was a situation proper to be run into.
Mr. HAMILTON 2ded. the motion, but he said with a different view from Mr. Gerry. He did not object to the consequence stated by Mr. Gerry. There was no greater evil in subjecting the people of the U. S. to the major voice than the people of a particular State. It had been wished by many and was much to have been desired that an easier mode for introducing amendments had been provided by the articles of Confederation. It was equally desireable now that an easy mode should be established for supplying defects which will probably appear in the New System. The mode proposed was not adequate. The State Legislatures will not apply for alterations but with a view to increase their own powers. The National Legislature will be the first to perceive and will be most sensible to the necessity of amendments, and ought also to be empowered, whenever two thirds of each branch should concur to call a Convention. There could be no danger in giving this power, as the people would finally decide in the case.
Mr. MADISON remarked on the vagueness of the terms, “call a Convention for the purpose,” as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts?
On the motion of Mr. Gerry to reconsider
- H. divd. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. GEO ay.
Mr. SHERMAN moved to add to the article “or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.”
Mr. GERRY 2ded. the motion
Mr. WILSON moved to insert “two thirds of” before the words “several States”- on which amendment to the motion of Mr. Sherman
- H. ay. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.
Mr. WILSON then moved to insert “three fourths of” before “the several Sts” which was agreed to nem: con:
Mr. MADISON moved to postpone the consideration of the amended proposition in order to take up the following,
“The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U S:”
Mr. HAMILTON 2ded. the motion.
Mr. RUTLIDGE said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition: “provided that no amendments which may be made prior to the year 1808, shall in any manner affect the 4 & 5 sections of the VII article”-The postponement being agreed to,
On the question on the proposition of Mr. Madison & Mr. Hamilton as amended
- H. divd. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo ay.
15 Sep 1787
Art. V. “The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures 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 1808 shall in any manner affect the 1 & 4 clauses in the 9. section of article 1”
Mr. SHERMAN expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
Col: MASON thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.
Mr. Govr. MORRIS & Mr. GERRY moved to amend the article so as to require a Convention on application of 2/3 of the Sts.
Mr. MADISON did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.
The motion of Mr. Govr. MORRIS & Mr. GERRY was agreed to nem: con: [see the first part of the article as finally past]
Mr. SHERMAN moved to strike out of art. V. after “legislatures” the words “of three fourths” and so after the word “Conventions” leaving future Conventions to act in this matter, like the present Conventions according to circumstances.
On this motion
- H. divd. Mas. ay. Ct. ay. N. J. ay. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no.
Mr. GERRY moved to strike out the words “or by Conventions in three fourths thereof”
On this motion
- H. no. Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no.
Mr. SHERMAN moved according to his idea above expressed to annex to the end of the article a further proviso “that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate.”
Mr. MADISON. Begin with these special provisos, and every State will insist on them, for their boundaries, exports &c.
On the motion of Mr. Sherman
- H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. no. Va. no. N. C. no. S. C. no. Geo. no. [FN25]
Mr. SHERMAN then moved to strike out art V altogether.
Mr. BREARLEY 2ded. the motion, on which
- H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del divd. Md. no. Va. no. N. C. no. S. C. no. Geo. no.
Mr. Govr. MORRIS moved to annex a further proviso-“that no State, without its consent shall be deprived of its equal suffrage in the Senate”
This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.
