the further question, whether this should be the sole method in which the Constitution should be made capable of amendment. Several reasons concurred to render it highly inexpedient to make a resort to a convention the sole method of reaching amendments, and we can now see that the decision that was made on this subject was a wise one. It was a rare combination of circumstances that gave to the first national Convention its success. The war of the Revolution, and the exigencies which it caused, had produced a class of men possessing an influence, as well as qualifications for the duty assigned to them, that would not be likely to be again witnessed. Of these men Washington was the head; and no second Washington could be looked for. The peculiar crisis, too, occasioned by the total failure of the Confederation, notwithstanding the apparent fitness and actual necessity of that government at the time of its formation, could never occur again. There were, moreover, but thirteen states in the Confederacy, nearly all of which dated their settlement and their existence as political communities from about the same period, and all had passed through the same revolutionary history. But the number of the states was evidently destined to be greatly increased, and the new members of the Union would also be likely to be somewhat different in character from the old states. It was not probable, therefore, that the time would ever arrive when the people of the United States would feel that another national convention, for the purpose of acting on the national Constitution, would be safe or practicable. Still, it would not have been proper to have excluded the possibility of a resort to this method of amendment; since the national legislature might itself be interested to perpetuate abuses springing from defects in the Constitution, and to incur the hazards attending a convention might become a far less evil than the continuance of such abuses, or the failure to make the necessary reforms. But it was indispensable that the precise functions and authority of such a convention should be defined, lest its action might result in revolution. The method of amendment proposed by the committee of detail did not enable the Congress to call a convention on their own motion, and did not prescribe the action of such a body, or provide any mode in which the amendments proposed by it should be adopted. Hamilton and Madison both opposed this plan the former, because it was inadequate, and because he considered it desirable that a much easier method should be devised for remedying the defects that would become apparent in the new system; the latter, on account of the vagueness of the plan itself. Accordingly Mr. Madison brought forward, as a substitute, a method of proceeding which, with some modifications, became what is now the fifth article of the Constitution: namely, that the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments; or, on the application of the legislatures of two thirds of the states, shall call a convention for proposing amendments. In either case the amendments proposed are to become valid as part of the Constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths of the states, as the one or the other mode of ratification may be proposed by the Congress.' But when this provision had been agreed upon, the grave question arose, whether the power of amendment was to be subjected to any limitations. There were two objects in respect to which, as we have more than once had occasion to see, different classes of the states felt great jealousy. One of them had been covered by the stipulations that the states should not be prohibited before the year 1808 from admitting further importations of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the states, in which three fifths only of the slaves were included. The other was the equality of representation in the Senate, so long and at length so successfully contended for by the smaller states.' At the instance of Mr. Rutledge of South Carolina a proviso was added, which forbade any amendment before the year 1808 affecting in any manner the clauses relating to the slave-trade and the capitation or other direct taxes. This proviso having now become inoperative, those clauses are, like others, subject to amendment. At the instance of Mr. Sherman of Connecticut a restriction that is of perpetual force was placed upon the power of amendment, which prevents each state from being deprived of its equality of representation in the Senate without its consent." 1 Elliot, V. 530–532. • Elliot, V. 532. 5 Constitution, Art. I. § 9. 'Ibid., Art. I. § 3. The oath or affirmation to support the Constitution was provided for by the committee of detail, in accordance with the resolution directing that it should be taken by the members of both houses of Congress and of the state legislatures, and by all executive and judicial officers of the United States and of the several states; and for the purpose of forever preventing any connection between church and state, and any scrutiny into men's religious opinions, the Convention unanimously added the clause, that "no religious test shall ever be required as a qualification to any office or public trust under the United States.' 99 1 We are next to ascertain in what mode the Constitution, which had thus been framed, was to provide for its own establishment and authority. There is a great difference between the importance of this question as it presented itself to the framers of the Constitution, and its importance to this or any succeeding generation. To us it is chiefly interesting because it displays the basis of a government which has been established for a century over the thirteen original states of the Confederacy, and is now established over thirty-eight. To those who made the Constitution, and to the people who were to vote upon it and to put it in operation, the mode in which it was to become the organic law of the Union was a topic of serious import and delicacy. It involved the questions, of what course would be politic with reference to the people; of what would be practicable; of the initiation of the new government without force; of its establishment on a firm, just, and legitimate authority; and of its right to supersede the Confederation, without a breach of faith towards the members of that body by whose inhabitants the new system might be rejected. The Convention had already decided that the Constitution must be ratified by the people of the states; but a difficulty had all along existed, in the opinions held by some of the members respecting the compact then subsisting between the states, which they regarded as indissoluble but by the consent of all the parties to it. The resolution, which the committee of detail were instructed to carry out, had declared that the new plan of government should first be submitted to the approbation of the existing 1 Constitution, Art. VI. Congress, and then to assemblies of representatives to be recommended by the state legislatures and to be expressly chosen by the people to consider and decide upon it. But this direction embraced no decision of the question whether the ratification by the people of a less number than all the states should be sufficient for putting the government into operation. If the people of a smaller number than the whole of the states could establish this form of government, what was to be its future relation to the states which might reject or refuse to consider it? Could any number of the states. thus withdraw themselves from the Confederation, and establish for themselves a new general government, and could that government have any authority over the rest? Various and widely opposite theories were maintained. One opinion was that all the states must accept the Constitution, or it would be a nullity; another, that a majority of the states might establish it, and so bind the minority, upon the principle that the Union was a society subject to the control of the greater part of its members; still another, that the states which might ratify it would bind themselves, but no one else. The truth with regard to these questions, which perplexed the minds of men in that assembly somewhat in proportion to their acuteness and their proneness to metaphysical speculations, was in reality not very far off. The Articles of Confederation had certainly declared that no alteration should be made in any of them, unless first proposed by the Congress, and afterwards unanimously agreed to by the state legislatures. But in two very important particulars the Convention had already passed beyond what could be deemed an alteration of those articles. They had prepared and were about to propose a system of government that would not merely alter, but would abolish and supersede, the Confederation; and they had determined to obtain, what they regarded as a legitimate authority for this purpose, the consent of the people of the states, by whose will the state governments existed, from whom those governments derived their authority to enter into the compact of the Confederation, and whose sovereign right to ameliorate their own political condition could not be disputed. This system they intended should be offered to all. The refusal of some states to accept it could not, upon principles of natural justice and right, oblige the others to remain fettered to a government which had been pronounced by twelve of the thirteen legislatures to be defective and inadequate to the exigencies of the Union. At the same time the independent political existence of the people of each state made it impossible to treat them as a minority subject to the power of such majority as would be formed by the states that might adopt the Constitution. If the people of a state should ratify it, they would be bound by it. If they should refuse to ratify it, they would simply remain out of the new union that would be formed by the rest. It was, therefore, determined that the Constitution should undertake to be in force only in those states by whose inhabitants it might be adopted.' Then came the question, in what mode the assent of the people of the states was to be given. The constitution of one of the states' provided that it should be altered only in a prescribed mode; and it was said that the adoption of the Constitution now proposed would involve extensive changes in the constitution of every state. This was equally true of the constitutions of those states which had provided no mode for making such changes, and in which the state officers were all bound by oath to support the existing constitution. These difficulties, however, were by no means insurmountable. It was universally acknowledged that the people of a state were the fountain of all political power, and if, in the method of appealing to them, the consent of the state government that such appeal should be made were involved, there could be no question that the proceeding would be in accordance with what had always been regarded as a cardinal principle of American liberty. For, since the birth of that liberty, it had been always assumed that, when it has become necessary to ascertain the will of the people on a new exigency, it is for the existing legislative power to provide for it by an ordinary act of legislation.' Whatever changes, therefore, in the state constitutions might become necessary in consequence of the adoption of the national Constitution, it would be a just presumption that the will of the people, duly ascertained by their legislature, had decided, by that adoption, that such changes should be made; and the formal act of making them could follow at any time when arrangements 1 Elliot, V. 499. 2 Maryland. 'Works of Daniel Webster, VI. 227. |