The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Part 1: Apprehensions
• The Anti-federalists
• Letters From the Federal Farmer, No. 7 31 December 1787
• “brutus,” Essay Ii 1 November 1787
• Amendments Recommended By the Several State Conventions
• Amendments Proposed By the Virginia Convention 27 June 1788
• Ratification of the State of New York 26 July 1788
• Federalist Concerns
• James Madison to George Washington New York, 11 August 1788
• Madison to Washington New York, 24 August 1788
• James Madison to Thomas Jefferson 21 September 1788
• Madison to Jefferson 8 December 1788
• The Bill of Rights
• Proceedings In the House of Representatives 8 June 1789
• Proceedings In the House of Representatives 13 August 1789
• Apprehensions Unallayed
• “pacificus” to James Madison
• Popular Instruction of Representatives 15 August 1789
• Titles
• Part 2: The Leadership Divides
• Funding and Assumption
• Alexander Hamilton the First Report On Public Credit 14 January 1790
• Debates In the House of Representatives On the First Report On Public Credit 9–18 February 1790
• Thomas Jefferson Memorandum On the Compromise of 1790
• Opposition Out of Doors
• Virginia’s Remonstrance Against the Assumption of State Debts 16 December 1790
• The Constitution and the National Bank
• Alexander Hamilton Notes On the Advantages of a National Bank 27 March 1791
• James Madison’s Speech On the Bank Bill 2 February 1791
• Thomas Jefferson Opinion On the Constitutionality of a National Bank 15 February 1791
• Alexander Hamilton Opinion On the Constitutionality of a National Bank 15 February 1791
• James Madison to Thomas Jefferson On Speculative Excess Summer 1791
• Commerce and Manufactures
• Thomas Jefferson Notes On the State of Virginia 1785
• Jefferson and Madison On Republican Political Economy
• James Madison Speech In the House of Representatives On Commercial Retaliation and Discrimination 25 April 1789
• Congressional Proceedings On Commercial Discrimination 1789
• Alexander Hamilton Report On the Subject of Manufactures 5 December 1791
• The Collision
• James Madison Essays For the National Gazette 1792
• William Branch Giles Speech In the House of Representatives On the Apportionment Bill 9 April 1792
• Letters of Fisher Ames to George Richards Minot 1791–1792
• Philip Freneau “rules For Changing a Limited Republican Government Into an Unlimited Hereditary One” 4 and 7 July 1792
• Alexander Hamilton to Edward Carrington 26 May 1792
• An Administration Divided
• James Madison Further Essays For the National Gazette
• Part III. The French Revolution and the People
• Neutrality
• “an Old French Soldier” (philadelphia) General Advertiser 27 August 1793
• Alexander Hamilton “pacificus,” No. 1 29 June 1793
• James Madison “helvidius,” No. 1 24 August 1793
• James Madison “helvidius,” No. 4 14 September 1793
• Commerce and Seizures
• William Loughton Smith Speech In the House of Representatives 13 January 1794
• James Madison Speech In the House of Representatives 14 January 1794
• James Madison “political Observations” 20 April 1795
• The Popular Societies, the Excise, and the Whiskey Rebellion
• The Democratic Society of Pennsylvania (philadelphia) Principles, Articles, and Regulations 30 May 1793
• Condemnations, Defenses, and Society Attacks On the Excise
• The Rebellion
• “self-created Societies”
• Alexander Hamilton the “camillus” Essays 22 July 1795–9 January 1796
• House Debates On Implementing Jay’s Treaty 1796
• Washington’s Farewell Address 19 September 1796
• Part 4: Liberty and Order
• The Black Cockade Fever
• Philadelphia, 1798
• Addresses to the President, With His Replies April–august 1798
• The Sedition Act 14 July 1798
• Popular Protest
• “advertisement Extraordinary!!!” (philadelphia) Aurora 14 July 1798
• The Kentucky and Virginia Resolutions
• Thomas Jefferson Draft of the Kentucky Resolutions October 1798
• James Madison the Virginia Resolutions 21 December 1798
• State Replies to the Resolutions
• Congressional Report Defending the Alien and Sedition Laws 21 February 1799
• James Madison the Report of 1800
• The Jeffersonian Program
• Thomas Jefferson the First Inaugural Address 4 March 1801
• Thomas Jefferson First Annual Message 8 December 1801
• The Jeffersonian Vision
• Letters of the President 1799–1802
• Edmund Pendleton “the Danger Not Over” 5 October 1801
• Fisher Ames “falkland,” No. 2 6 February 1801
• Repeal of the Judiciary Act of 1801
• Congressional Proceedings
• Editorials On the Repeal “a Friend of the Constitution” [william Cranch], No. 1 Washington Federalist 7 December 1801
• The Impeachment of Samuel Chase, 1804–1805
• Albert Gallatin Report On Internal Improvements 4 April 1808
• The Louisiana Purchase
• Thomas Jefferson to Robert R. Livingston 18 April 1802
• Thomas Jefferson to John C. Breckinridge 12 August 1803
• Thomas Jefferson to Wilson Cary Nicholas 7 September 1803
• [alexander Hamilton] “purchase of Louisiana” New York Evening Post 5 July 1803
• Federalist Alarm
• A Republican Response
• Senate Debates On the Louisiana Purchase 2–3 November 1803
• The Embargo
• An Act Laying an Embargo On All Ships and Vessels In the Ports and Harbors of the United States 22 December 1807
• Resistance, Enforcement, and Repeal
• The War of 1812
• Madison’s War Message 2 June 1812
• Samuel Taggart, Speech Opposing the War 24 June 1812
• Henry Clay, Speech Supporting the War 9 January 1813
• Report and Resolutions of the Hartford Convention 4 January 1815
• Part 7: The End of an Era
• Madison’s Seventh Annual Message 5 December 1815
• Madison’s Veto of the Internal Improvements Bill 3 March 1817
• In Retrospect
• The Adams-jefferson Correspondence John Adams to Thomas Jefferson 13 July 1813
• Thomas Jefferson to Justice William Johnson 12 June 1823
• Republican Farewells
• Bibliography

Proceedings in the House of Representatives 13 August 1789

Madison’s propositions of 8 June were referred to a select committee of eleven, which reported them out without substantial change. After further debate about delaying the subject, the House finally went into committee of the whole to consider the amendments. The debates on the Bill of Rights were too extensive to be presented here in full, but Congress added nothing that Madison had not initially proposed and defeated him, in substance, on only two important points. The House approved, but (in debates that were not recorded) the Senate defeated Madison’s proposal to guarantee the freedoms of religion and the press against infringements by the states as well as against infringements by the federal government. And, led by Roger Sherman, a stubborn minority compelled Madison to forgo his original idea that the changes ought to be interwoven into the body of the Constitution, not tacked onto the end.

Mr. Sherman

I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron, and clay as to incorporate such heterogeneous articles, the one contradictory to the other. Its absurdity will be discovered by comparing it with a law: would any legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected. When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference.

Beside this, sir, it is questionable whether we have the right to propose amendments in this way. The Constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the state governments; again, all the authority we possess is derived from that instrument; if we mean to destroy the whole and establish a new Constitution, we remove the basis on which we mean to build. For these reasons I will move to strike out that paragraph and substitute another.

The paragraph proposed was to the following effect: Resolved by the Senate and House of Representatives of the United States in Congress assembled, That the following articles be proposed as amendments to the Constitution; and when ratified by three-fourths of the state legislatures shall become valid to all intents and purposes as part of the same.

Under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form.

Mr. Madison

Form, sir, is always of less importance than the substance; but on this occasion, I admit that form is of some consequence, and it will be well for the house to pursue that which, upon reflection, shall appear to the most eligible. Now it appears to me that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong than it will if they consist of separate and distinct parts; we shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment; it will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons, whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work.

Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed.

Mr. Smith [S.C.]

did not think the amendment proposed by the honorable gentleman from Connecticut was compatible with the Constitution, which declared that the amendments recommended by Congress and ratified by the legislatures of three-fourths of the several states should be part of this Constitution; in which case it would form one complete system; but according to the idea of the amendment, the instrument is to have five or six suits of improvements. Such a mode seems more calculated to embarrass the people than anything else, while nothing in his opinion was a juster cause of complaint than the difficulties of knowing the law, arising from legislative obscurities that might easily be avoided. He said that it had certainly been the custom in several of the state governments to amend their laws by way of supplement; but South Carolina has been an instance of the contrary practice, in revising the old code; instead of making acts in addition to acts, which is always attended with perplexity, she has incorporated them, and brought them forward as a complete system, repealing the old. This is what he understood was intended to be done by the committee: the present copy of the Constitution was to be done away and a new one substituted in its stead.

Samuel Livermore (N.H.)

was clearly of opinion that whatever amendments were made to the Constitution, that they ought to stand separate from the original instrument. We have no right, said he, to alter a clause any otherwise than by a new proposition. We have well-established precedents for such a mode of procedure in the practice of the British Parliament and the state legislatures throughout America. I do not mean, however, to assert that there has been no instance of a repeal of a whole law on enacting another; but this has generally taken place on account of the complexity of the original, with its supplements. Were we a mere legislative body, no doubt it might be warrantable in us to pursue a similar method, but it is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the Constitution of the United States, by making a new one to substitute in its place. The reason of this is grounded on a very simple consideration. It is by virtue of the present Constitution, I presume, that we attempt to make another; now, if we proceed to the repeal of this, I cannot see upon what authority we shall erect another; if we destroy the base, the superstructure falls of course. At some future day it may be asked upon what authority we proceeded to raise and appropriate public monies. We suppose we do it in virtue of the present Constitution; but it may be doubted whether we have a right to exercise any of its authorities while it is suspended, as it will certainly be, from the time that two-thirds of both houses have agreed to submit it to the state legislatures; so that unless we mean to destroy the whole Constitution, we ought to be careful how we attempt to amend it in the way proposed by the committee. From hence I presume it will be more prudent to adopt the mode proposed by the gentleman from Connecticut, than it will be to risk the destruction of the whole by proposing amendments in the manner recommended by the committee… .

Mr. Jackson

I do not like to differ with gentlemen about form, but as so much has been said, I wish to give my opinion … that the original Constitution ought to remain inviolate, and not be patched up from time to time with various stuffs resembling Joseph’s coat of many colors… .

The Constitution of the Union has been ratified and established by the people, let their act remain inviolable; if anything we can do has a tendency to improve it, let it be done, but without mutilating and defacing the original.

Mr. Sherman

If I had looked upon this question as mere matter of form, I should not have brought it forward or troubled the committee with such a lengthy discussion. But, sir, I contend that amendments made in the way proposed by the committee are void: No gentleman ever knew an addition and alteration introduced into an existing law, and that any part of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance in every case where the two were not incompatible. But if these observations alone should be thought insufficient to support my motion, I would desire gentlemen to consider the authorities upon which the two constitutions are to stand. The original was established by the people at large by conventions chosen by them for the express purpose. The preamble to the Constitution declares the act: But will it be a truth in ratifying the next constitution, which is to be done perhaps by the state legislatures and not conventions chosen for the purpose? Will gentlemen say it is “We the people” in this case; certainly they cannot, for by the present constitution, we nor all the legislatures in the union together do not possess the power of repealing it: All that is granted us by the 5th article is that, whenever we shall think it necessary, we may propose amendments to the Constitution; not that we may propose to repeal the old and substitute a new one.

Gentlemen say it would be convenient to have it in one instrument that people might see the whole at once; for my part I view no difficulty on this point. The amendments reported are a declaration of rights; the people are secure in them whether we declare them or not; the last amendment but one provides that the three branches of government shall each exercise its own rights, this is well secured already; and in short, I do not see that they lessen the force of any article in the Constitution; if so, there can be little more difficulty in comprehending them whether they are combined in one or stand distinct instruments.

Mr. Gerry

The honorable gentleman from Connecticut, if I understand him right, says that the words “We the people” cannot be retained if Congress should propose amendments, and they be ratified by the state legislatures: Now if this is a fact, we ought most undoubtedly adopt his motion; because if we do not, we cannot obtain any amendment whatever. But upon what ground does the gentleman’s position stand? The Constitution of the United States was proposed by a convention met at Philadelphia, but with all its importance it did not possess as high authority as the President, Senate, and House of Representatives of the union: For that convention was not convened in consequence of any express will of the people, but an implied one, through their members in the state legislatures. The Constitution derived no authority from the first convention; it was concurred in by conventions of the people, and that concurrence armed it with power and invested it with dignity. Now the Congress of the United States are expressly authorized by the sovereign and uncontrollable voice of the people to propose amendments whenever two-thirds of both houses shall think fit: Now if this is the fact, the propositions of amendment will be found to originate with a higher authority than the original system. The conventions of the states respectively have agreed for the people that the state legislatures shall be authorized to decide upon these amendments in the manner of a convention. If these acts of the state legislatures are not good because they are not specifically instructed by their constituents, neither were the acts calling the first and subsequent conventions.

Does he mean to put amendments on this ground, that after they have been ratified by the state legislatures they are not to have the same authority as the original instrument; if this is his meaning, let him avow it, and if it is well founded, we may save ourselves the trouble of proceeding in the business. But for my part I have no doubt but a ratification of the amendments, in any form, would be as valid as any part of the Constitution. The legislatures are elected by the people; I know no difference between them and conventions, unless it be that the former will generally be composed of men of higher characters than may be expected in conventions; and in this case, the ratification by the legislatures would have the preference.

Now if it is clear that the effect will be the same in either mode, will gentlemen hesitate to approve the most simple and clear? It will undoubtedly be more agreeable to have it all brought into one instrument than have to refer to five or six different acts.

Apprehensions Unallayed

Much of the resistance to Madison’s insistence on amendments came from Federalists who sharply disapproved of any action that would tend to reopen the debate about the Constitution. Anti-Federalists in Congress did attempt, without success, to add substantive amendments to the ones the Virginian introduced. Federalist resentment was well expressed in an essay signed by “Pacificus,” who was, in fact, Noah Webster. On the other side, Virginia’s anti-Federalist senators complained that none of the amendments actually approved truly addressed the substantive concerns of the opponents of the Constitution. One further episode from the congressional debates about amendments, the argument about popular instruction of representatives, helps us grasp the depth of feeling on both sides; and few incidents during the first session of the First Congress were more suggestive of the members’ consciousness that they were making precedents for ages to come—or of the sharpness of persistent fears about the new regime—than the debate on titles for executive officials.

On the Constitutional Amendments