Article V of the Constitution outlines the process for proposing and ratifying amendments. Amendments can only be proposed by either a two-thirds vote of both houses of Congress or by a constitutional convention, which Congress must call if requested to do so by two-thirds of the state legislatures. Once proposed, amendments can be ratified when approved by three-fourths of the state legislatures or state ratifying conventions. The Constitution does not specify where amendments should be inserted—either before or at the end of the original Constitution or interspersed at appropriate places in the text of the Constitution. The Confederation Congress offered little guidance on this issue. When it recommended amendments to the Articles of Confederation, it usually provided that the amendment should replace the original provision. However, in 1786, when the Confederation Congress considered seven amendments to be added to the original thirteen articles, all were to be appended at the end and assigned new article numbers beginning with Article 14.
In the first federal Congress under the Constitution, James Madison delivered a masterful speech in the U.S. House of Representatives on 8 June 1789 that included a lengthy list of amendments to the Constitution. Madison specified where each of his amendments should be located within the body of the Constitution. His first amendment, alluding to the great principles in the Declaration of Independence, was, in fact, to be “prefixed to the Constitution.” It is unclear if this meant placement before or after the Preamble. The subsequent amendments were to be placed in specific locations within the body of the Constitution. On 13 August 1789, Representative Roger Sherman of Connecticut, who opposed any amendments, criticized placing the amendments in the body of the Constitution, preferring instead to place them together as a list of amendments at the end of the Constitution. After a lengthy, and sometimes heated debate in a committee of the whole, the House defeated Sherman’s motion, preferring to keep the placement of amendments within the body of the original Constitution. On 19 August, Sherman “renewed his motion for adding the amendments to the constitution by way of supplement” which was again debated and then accepted by a two-thirds vote.
The debate on 13 August began when Sherman argued that “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.” He likened the process to amending a law, where the standard practice was not to insert changes into the original text, but to repeal the law entirely and replace it. Sherman also questioned whether Congress had “the right to propose amendments in this way.” In his view, the Constitution, was “the act of the people, and ought to remain entire.” Any amendments, he argued, would “be the act of the state governments” and thus would destroy the original Constitution.
Madison responded that “form is always of less importance than the substance,” but on this occasion he acknowledged “that form is of some consequence.” The House ought to choose “the most eligible” manner in locating the amendments. He believed “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.” Such an incorporation, Madison explained, would make it easier “to determine its meaning without references or comparison.” By contrast, if the amendments were supplementary, their “meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment” because “it will be difficult to ascertain to what parts of the instrument the amendments particularly refer.” Moreover, he warned that supplementary amendments “will create unfavorable comparisons,” whereas incorporating them into the Constitution would allow them to “stand upon as good foundation as the original work.”
William Loughton Smith of South Carolina felt that tacking the amendments on at the end of the Constitution would be incompatible with the Constitution. According to Article V of the Constitution “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.” In his view, supplementary amendments seemed to be “more calculated to embarrass the people than any thing else.” To support his argument, Smith pointed to the example of state lawmaking. While some states amended their “laws by way of supplement,” South Carolina, contrary to that practice, had always incorporated amendments directly into existing laws.
Samuel Livermore of New Hampshire believed that amendments “ought to stand separate from the original instrument.” Congress had no right to change any clause of the original Constitution. He pointed to many “well-established precedents” from the British parliament and state legislatures that supported the use of supplementary amendments. Additionally, to repeal any part of the Constitution and replace it with an amendment would violate the oath they had taken to defend the Constitution. If Congress destroyed any part of “the base . . . the superstructure falls of course.” Livermore also warned that if Congress acted under a specific provision of the Constitution that would later be deleted it would obscure the legal foundation upon which the law was based.
John Vining of Delaware opposed supplementary amendments that would lead to obscurity of meaning. Replacing repealed provisions by amendments “would adopt a plainness and simplicity of style on this and every other occasion, which should be easily understood.” In contrast, supplementary amendments, he warned, “like a careless written letter, [would] have more matter attached to it in a postscript than was contained in the original composition. The constitution being a great and important work, ought all to be brought into one view, and made as intelligible as possible.”
George Clymer of Pennsylvania also opposed altering any part of the original Constitution which he believed should “remain a monument to justify those who made it. The perfection of the original” ought to be preserved for the world to “discover.”
Michael Jenifer Stone of Maryland, however, thought the placement of amendments was “not a matter of much consequence.” The archival record would always show the original form of the Constitution. However, if amendments were “incorporated in the body of the work, it will appear, unless we refer to the archives of congress, that George Washington, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation.” He added that the present amendments were unlikely to be the last and warned that Congress “ought therefore to be careful how we set a precedent which in dangerous and turbulent times, may unhinge the whole.”
Samuel Livermore thought the interspersing amendments into the body of the Constitution would be proper if Congress was drafting an entirely new Constitution. No one, however, “acquainted with legislative business, would pretend to alter and amend in this manner.” Amendments could only be “done properly” if they were added to the end of the Constitution.
Elbridge Gerry of Massachusetts, on the other hand, did not see any difference between the two modes. He considered the debate was merely over form, calling it “trifling” and asserting that it concerned “matters of little consequence.” Ultimately, the question turned on “expediency.” Given that Gerry was one of only three delegates in the Constitutional Convention who refused to sign the Constitution, it is unsurprising that he thought the names of the signers gave no “validity to the constitution if it was not ratified by the several states.” Consequently, the names affixed to the Constitution meant nothing. Striking out the names, he insisted, would not invalidate any part of the Constitution. However, Gerry warned that if the amendments were added at the end, they would be introduced as “a supplement to the constitution of the United States; the next a supplement to the supplement, and so on, until we have supplements annexed five times in five years, wrapping up the constitution in a maze of perplexity” making it difficult “to ascertain the true meaning of the constitution.” It may then “require a man of science to determine what is or is not the constitution.”
Gerry rejected the assertion that incorporating the amendments into the original Constitution would “be a virtual repeal of the constitution.” Such an interpretation would “be the same in a supplementary way.” Therefore, he claimed, the object of the debate “goes for nothing, or it goes against making any amendments whatever.”
Michael Jenifer Stone asked Gerry how amendments should be published. If amendments were to be “inserted in their proper places,” he felt that a new constitution would have to be published every time an amendment was adopted.
John Laurance of New York argued against “ingrafting” the amendments into the Constitution. The original Constitution was now lodged in the archives and it was impossible for Congress to “interpolate” it “without making it speak a different language.” Interspersed amendments were “only proper in legislative business, while the bill is on its passage.”
Egbert Benson of New York stated that the Committee of Eleven had “agitated” the placement of the amendments and ultimately decided in favor of interspersing them in the body of the Constitution. This decision was largely based on the state conventions that had used this form in recommending amendments—”the mode most agreeable to the people of America, and therefore the one most eligible for congress to pursue.” Benson also felt that “it will likewise be the most convenient way.” Once a sufficient number of states ratified the amendments, Congress would “order a number of copies to be printed, into which the alterations will be inserted, and the work stand perfect and entire.” Benson believed that “it never was contemplated by any gentlemen to alter the original constitution deposited in the archives of the union, that will remain there with the names of those who formed it, while the government has a being.” He concluded that the interspersal of amendments would be most convenient and appropriate “in completing the work in a way provided for in itself.”
James Madison warned that if amendments were appended to the end of the Constitution, “we shall so far unhinge the business as to occasion alterations in every article and clause of the” proposed amendments.
Thomas Hartley of Pennsylvania also hoped that the amendments would not be placed at the end of the Constitution, fearing it would “perplex the business.” He preferred the propositions to be “simple and entire, that the state legislatures might decide without hesitation, and every man know what was the ground on which he rested his political welfare.” Hartley argued that appending the amendments at the end of the Constitution would cause a delay of “some days if not weeks; and the time of the house was too precious to be squandered away in discussing mere matter of form.”
Samuel Livermore then insisted that neither Congress nor the states were authorized to repeal the Constitution, and that would be the “inevitable consequence” of inserting amendments into the body of the original Constitution. As a result, he favored supplementary amendments which he believed would not be difficult to comprehend, noting that the original Constitution already contained passages that were more difficult to understand than anything contained in the amendments.
James Jackson of Georgia reluctantly joined the debate offering his 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.” He disagreed with “some gentlemen” who “talk of repealing the present constitution and adopting an improved one. If we have this power, we may go on from year to year, making new ones; and in this way we shall render the basis of the superstructure the most fluctuating thing imaginable, and the people will never know what the constitution is.” He also disagreed with the argument that incorporating amendments was “necessary for the people to have the whole before them in one view.” That position, he claimed, was unprecedented. “Look at the constitution of Great Britain,” he said. “Is that all contained in one instrument?” He pointed out that “Magna carta was extorted by the barons from king John some centuries ago.” Rhetorically he asked, “Has that been altered since by the incorporation of amendments? Or does it speak the same language now, as it did at the time it was obtained?” Jackson answered his own question: “it is not altered a tittle from its original form. Yet there has been many amendments and improvements in the constitution of Britain since that period” which all Englishmen would willingly “spill the last drop of their blood in their defence.” These enhancements of liberty along with Magna Carta “form the basis of English liberty”—they were obtained not “by striking out and inserting other words in the great charter.” Shifting to the American scene, Jackson asserted that “The constitution of the union has been ratified and established by the people, let their act remain inviolable; if any thing we can do has a tendency to improve it, let it be done, but without mutilating and defacing the original.”
Two articles in the New York Daily Advertiser, dated 17 and 21 August 1789, refuted Jackson’s argument that Magna Carta was unchanged. Both articles provided historical precedents that showed that Magna Carta had been altered by amendments safeguarding rights that were incorporated in the document as well as by supplementary documents. According to the second article, signed by “A Spectator,” “The point in dispute was indeed of little consequence.” While Jackson was indeed guilty of “an inconsiderable historical error,” it did not “diminish” the author’s “respect for so valuable a character—As a man of honor and spirit, I admire him; as a warm and generous patriot, I esteem him, and as a sensible, natural and impressive speaker, I always listen to him with peculiar pleasure.”
Roger Sherman then explained that had he thought the issue was merely a matter of form, he would not have “brought it forward or troubled the committee with such a lengthy discussion.” He proposed attaching the amendments to the end of the Constitution because amendments interspersed throughout the body of the Constitution would be “void.” Additions and alterations were never introduced in an existing law; instead when “improved or altered by a supplemental act,” the remaining parts of the original act were “left in force” retaining “all its validity and importance in every case where the two were not incompatible.” If this explanation was insufficient, Sherman wanted the representatives to consider how the two constitutions were adopted. “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.” The newly amended Constitution will be adopted by state legislatures, but they would not be able to say “We the people.” Neither Congress nor the state legislatures would be able to repeal the Constitution. All that Congress could do is to propose amendments—not substitute a new constitution.
Sherman denied the convenience of incorporating the amendments. In fact, as a declaration of rights the proposed amendments were really unnecessary—”the people are secure in them whether we declare them or not,” but being added as a supplementary declaration presented “little more difficulty in comprehending them.”
William Loughton Smith read some extracts from the amendments recommended by the state conventions from which he said that it appeared that there was a desire to alter “the phraseology of the constitution,” but that this would not “repeal any part of the constitution” that was untouched. The “remainder will be in force during the time of considering it and ever after.”
In response to General Jackson’s comments on Magna Carta, Smith suggested that the British and American cases were fundamentally different and, therefore, “could not be drawn into precedent.” The British constitution, Smith explained, was not to be found in Magna Carta, the Habeas Corpus Act, “nor all the charters put together.” Instead, it was embodied in the will of Parliament. While “true there are rights granted to the subject that cannot be resumed,” Smith noted, “the constitution or form of government may be altered by the authority of parliament, whose power is absolute without control.”
Joshua Seney of Maryland expressed frustration with the amount of time consumed by the debate over amendments. “He hoped the question would soon be put and decided.”
John Vining, who was also “an enemy to unnecessary debate,” believed that the issue was important and was not displeased with the discussion. However, he hoped that a “vote in favor of the most simple mode” would soon take place.
Roger Sherman refuted the idea that his motion to append the amendments at the end of the Constitution was merely a “matter of form.” He argued that those supporting his motion were contending “for substance and therefore cannot agree to” intersperse amendments. If the representatives were “so desirous of having the business compleated, they had better sacrifice what they consider but a matter of indifference” and unanimously vote for his motion.
The motion to affix the amendments at the end of the Constitution was then put to a vote and defeated.
About a week later, on 19 August, Sherman renewed his motion for placing the amendments at the end of the Constitution. Much of the debate in the committee of the whole on 13 August was repeated, though unfortunately it was not recorded in the House Journal. It, however, was recorded that the motion to place the amendments at the end of the Constitution was approved “by two-thirds of the house,” thus setting the precedent for all future amendments to the Constitution.
A week after this decision, on 24 August, the House of Representatives sent seventeen amendments to the Senate for its consideration. On the same day, James Madison wrote a letter to fellow Virginian Alexander White describing some potential consequences of the re-location of the amendments. Madison felt “that some ambiguities will be produced by this change, as the question will often arise and sometimes be not easily solved, how far the original text is or is not necessarily superceded, by the supplemental act.” He suggested that “A middle way will be taken between the two modes, of proposing all the amendments as a single act to be adopted or rejected in the gross, and of proposing them as independent amendments. each of which shall take place or not, as it may be individually decided on. The several propositions will be classed according to their affinity to each other, which will reduce them to the number of 5 or 6 in the whole, to go forth as so many amendments unconnected with one another.” Madison’s prediction partially came true, as the Senate and a conference committee of both houses reduced the seventeen amendments to twelve which were sent to the states for their consideration.
The Massachusetts Centinel on 29 August 1789 offered its unique spin on the placement of the amendments at the end of the Constitution. “The plan of incorporating the amendments being given up, the identity of the system remains; and if the amendments in any future time should be found to be unnecessary, superfluous, or absurd, they may be lopped off as a useless branch of the tree.” This bizarre prediction failed to materialize. Instead of “lopping off” the 18th Amendment which prohibited the manufacture, sale, and transportation of alcoholic beverages, Congress proposed and the states adopted the 21st Amendment which repealed prohibition.
An interesting counterfactual consideration presents itself had Madison’s proposal incorporating amendments into the body of the Constitution been accepted. Would such a procedure have changed the way in which the first ten amendments have been interpreted over the years? Would other amendments have been adopted and inserted? How would the official amended Constitution have been published? Amendments to the Constitution have been adopted at eighteen different times—the first ten in 1791 and at seventeen other times. Consequently, might there have been nineteen different official versions of the Constitution—the original 1787 version and a new version each time amendments were adopted? Would the shortcomings of incorporating the amendments been seen and consequently abandoned? Given our long history of amendments, how do the arguments of August 1789 stand up to modern consideration?