University of Wisconsin–Madison

The Debate Regarding Amendments to the Constitution

Throughout the Revolutionary era Americans drafted and adopted new constitutions. Some state constitutions provided no explicit method for amendments, while others provided a variety of measures for change. The Articles of Confederation, sent to the state legislatures for their unanimous approval in November 1777, provided that any amendments must be approved by Congress and then ratified by all of the state legislatures. In the process of adopting the Articles, state legislatures proposed many amendments to the Articles. Congress rejected all of them. Beginning in February 1781, Congress proposed half a dozen amendments none of which were adopted by all of the states.

The delegates to the Constitutional Convention gave serious consideration to a method of amending the new Constitution. In the end, Article V provides two methods to propose amendments and two methods to ratify amendments. Amendments could be proposed either by a vote of two-thirds of each branch of Congress or, upon the request of two-thirds of the state legislatures, Congress must call a constitutional convention to consider amendments. When submitting amendments to the states, Congress was to determine which of two ratification procedures would be followed—either by the approval of three-fourths of the state legislatures or by the approval of three-fourths of specially-elected state ratifying conventions.

When the Constitution was promulgated on 17 September 1787, it met with widespread approval. Yet, because it was a document of compromises, no one approved it in its entirety. Even the strongest Federalists such as James Madison, Alexander Hamilton, and James Wilson objected to some parts of the Constitution. Hamilton, for instance, wrote that “no man’s ideas were more remote from the plan than [mine] were known to be,” while James Wilson publically confessed “that I am not a blind admirer of this plan of government, and that there are some parts of it, which, if my wish had prevailed, would certainly have been altered.” Federalists, however, saw that the Constitution, defective as it was, was far superior to the Articles of Confederation, consequently they energetically supported it.

During the ratification debate, much of the argument centered over how and when to amend the Constitution. Antifederalists wanted to amend the Constitution before it was implemented; while Federalists argued that amendments could best be considered only after experience under the Constitution demonstrated the need for change. Federalists argued that any attempt to obtain amendments prior to the ratification of the Constitution would be foolhardy and perhaps endanger the Union.

Perhaps surprisingly, Antifederalists almost unanimously agreed to follow the procedure for ratification recommended by the Constitutional Convention and the Confederation Congress. Congress was to submit the Constitution to the state legislatures, which, in turn, would call specially-elected conventions that would ratify the Constitution. Article VII of the Constitution provided that once nine state conventions ratified, the new Constitution would go into effect among the ratifying states. Antifederalists wanted the state conventions to consider amendments to the Constitution that would be submitted to the Confederation Congress, which would call a new general convention before the Constitution was put into effect. Only those amendments accepted by the general convention would be incorporated into the Constitution.

The first hurdle in the ratification debate occurred in the Confederation Congress. After some discussion as to whether the plan could be amended, Congress “resolved unanimously” to transmit the Constitution to the state legislatures without approbation. All mention of objections was deleted from the Journals (see The Confederation Congress and the Constitution).

In the first five state conventions that considered the Constitution, Federalists with large majorities argued that amendments should not to be considered. Most Antifederalists acquiesced and did not propose amendments. In Pennsylvania, however, an adamant minority recommended amendments, which Federalists would not allow to appear on the Journals. Antifederalists therefore had their amendments printed in newspapers and as a broadside entitled the Dissent of the Minority of the Pennsylvania Convention.

All of this would change in Massachusetts. After three weeks of debates, Federalists realized that the Constitution would be defeated if a vote were to be taken. Federalist leaders ingeniously met the challenge. They proposed to ratify the Constitution without any prior conditions, but with nine recommendatory amendments. The state’s members of the first federal Congress would be instructed to strive to obtain congressional approval of the Convention’s amendments. Six of the remaining seven states that ratified the Constitution followed this procedure. (For a complete list of all the recommendatory amendments, see here.)  New York’s Convention took another step. In addition to recommending more than forty amendments, it recommended that the first federal Congress call a second general convention to consider the recommendatory amendments. Federalists greatly feared such a convention. And, since the legislatures of New York and Virginia were the only states to submit formal requests for a second general convention, Congress did not call a general convention (see The Idea of a Second Convention).

Despite the recommendation of amendments by five of the first eleven state conventions, amendments were denigrated during the first federal elections for the House of Representatives. Federalists labeled advocates for amendments as “amendmenites” or “amendment mongers,” who endangered the Constitution and the Union. Thus, even though George Washington called for the proposal of a bill of rights in his presidential inaugural address on 30 April 1789, Congress did nothing of substance to propose amendments until James Madison argued for amendments in a speech in the House of Representatives on 8 June 1789. After approval by two-thirds of the House, Madison’s amendments were considered and altered somewhat by the Senate. In September 1789, a conference committee proposed twelve amendments that were sent to the states. By 15 December 1791 three-fourths of the state legislatures adopted ten of the amendments. For an excellent article detailing the process of creating the Bill of Rights, see Kenneth R. Bowling’s “A Tub to the Whale: The Founding Fathers and the Adoption of the Federal Bill of Rights.”