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H. OF R.]

Amendments to the Constitution.

[AUGUST 13, 1789.

heys. We suppose we do it in virtue of the pre-Now if we incorporate these amendments, we sent constitution; but it may be doubted whe-must undoubtedly go further, and say that the ther we have a right to exercise any of its autho- constitution so formed was defective, and had rities 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 recommend-tleman from South Carolina, I shall just reed by the committee.

need of alteration; we therefore purpose to repeal the old and substitute a new one in its place. From this consideration alone, I think we ought not to pursue the line of conduct drawn for us by the committee. This perhaps is not the last amendment the constitution may receive; we ought therefore to be careful how we set a precedent which, in dangerous and turbulent times, may unhinge the whole.

With respect to the observations of the genmark, that we have no authority to repeal the whole constitution. The words referred to in that instrument only authorize us to propose amendments to it, which, when properly ratified, are to become valid as a part of the sames but these can never be construed to empower us to make a new constitution.

For these reasons, I would wish our expressions might be so guarded, as to purport nothing but what we really have in view.

Mr. VINING disliked a supplementary form, and said it was a bad reason to urge the practice of former ages, when there was a more convenient method of doing the business at hand. He had seen an act entitled an act to amend a supplement to an act entitled an act for altering part of an act entitled an act for certain purposes therein mentioned. If gentlemen were disposed to run into such jargon in amending and altering the constitution, he could not help it; but Mr. LIVERMORE.-The mode adopted by the he trusted they would adopt a plainness and committee might be very proper, provided Consimplicity of style on this and every other occa-gress had the forming of a constitution in consion, which should be easily understood. If the templation; then they, or an individual memmode proposed by the gentleman from Connec-ber, might propose to strike out a clause and inticut was adopted, the system would be distort-sert another, as is done with respect to article 3, ed, and, like a careless written letter, have section 2. But certainly no gentleman acquaintmore attached to it in a postscript than was con-ed with legislative business would pretend to tained 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.

alter and amend, in this manner, a law already passed. He was convinced it could not be done properly in any other way than by the one. proposed by the gentleman from Connecticut,

Mr. CLYMER was of opinion with the gentle- Mr. GERRY asked, if the mode could make man from Connecticut, that the amendments any possible difference, provided the sanction ought not to be incorporated in the body of the was the same; or whether it would operate difwork, which he hoped would remain a monu-ferently in any one instance? If it will not, ment to justify those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amend ments. He made this distinction, because he did not conceive any of the amendments essential, but as they were solicited by his fellow-citizens, and for that reason they were acquiesced in by others; he therefore wished the motion for throwing them into a supplementary form might be carried.

Mr. STONE. It is not a matter of much consequence, with respect to the preservation of the original instrument, whether the amendments are incorporated or made distinct; because the records will always show the original form in which it stood. But in my opinion, we ought to mark its progress with truth in every step we take. If the amendments are 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. The one to which he affixed his signature purports to be adopted by the unanimous consent of the delegates from every State there assembled.

we are disputing about form, and the question
will turn on the expediency. Now one gentle-
man tells you, that he is so attached to this in-
strument, that he is unwilling to lose any part
of it; therefore, to gratify him, we may throw it
into a supplementary form. But let me ask,
will not this as effectually destroy some parts.
as if the correction had been made by way of
incorporation? or will posterity have a more fa-
vorable opinion of the original, because it has
been amended by distinct acts? For my part,
I cannot see what advantage can accrue from
adopting the motion of the honorable gentleman-
from Connecticut, unless it be to give every one
the trouble of erasing out of his copy of the con-
stitution certain words and sentences, and in-
serting others. But, perhaps, in our great vene-
ration for the original composition, we may go
further, and pass an act to prohibit these inter-
polations, as it may injure the text.

All this, sir, I take to be trifling about matters of little consequence. The constitution has undoubtedly provided that the amendments shall be incorporated if I understand the import of the words, "and shall be valid to all intents and purposes, as part of the constitution.'

AUGUST 13, 1789.]

Amendments to the Constitution.

If it had said that the present form should be preserved, then it would be proper to propose the alterations by way of a supplement. One gentleman has said we shall lose the names that are now annexed to the instrument. They are names, sir, I admit, of high respect; but I would ask that gentleman, if they would give validity to the constitution if it were not ratified by the several States? or if their names were struck out, whether it would be of less force than it is at present? If he answers these questions in the negative, I shall consider it of no consequence whether the names are appended to it or not. But it will be time enough to discuss this point, when a motion is made for striking them


[H. OF R.

Mr. LAWRENCE could not conceive how gentlemen meant to engraft the amendments into the constitution. The original one, executed by the convention at Philadelphia, was lodged in the archives of the late Congress, it was impossible for this House to take, and correct, and interpolate that without making it speak a different language: this would be supposing several things which never were contemplated. But what would become of the acts of Congress? They will certainly be vitiated, unless they are provided for by an additional clause in the constitution.

What shall we say with respect to the ratifications of the several States? They adopted the original constitution, but they have not thereby enabled us to change the one form of GovernIf we proceed in the way proposed by the ho- ment for another. It is true, amendments were norable gentleman from Connecticut, I presume proposed by some of them; but it does not_folthe title of our first amendment will be, a supple-low, of necessity, that we should alter the form ment 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; and as great an adept as that honorable gentleman is at finding out the truth, it will take him, I apprehend, a week or a fortnight's study to ascertain the true meaning of the constitution.

It is said, if the amendments are incorporated, it will be a virtual repeal of the constitution. I say the effect will be the same in a supplementary way; consequently the objection goes for nothing, or it goes against making any amendments whatever.

It is said that the present form of the amend ments is contrary to the 5th article. I will not undertake to define the extent of the word amendment, as it stands in the fifth article; but I suppose if we proposed to change the division of the powers given to the three branches of the Government, and that proposition is accepted and ratified by three-fourths of the State Legislatures, it will become as valid, to all intents and purposes, as any part of the constitution; but if it is the opinion of gentlemen that the original is to be kept sacred, amendments will be of no use, and had better be omitted; whereas, on the other hand, if they are to be received as equal in authority, we shall have five or six constitutions, perhaps differing in material points from each other, but all equally valid; so that they may require a man of science to determine what is or is not the constitution. This will certainly be attended with great inconvebience, as the several States are bound not to make laws contradictory thereto, and all officers are sworn to support it, without knowing precisely what it is.

of the original which they have ratified. Amendments in this way are only proper in legislative business, while the bill is on its passage, as was justly observed before.

Mr. BENSON said, that this question had been agitated in the select committee, and determined in favor of the form in which it was reported; he believed this decision was founded in a great degree upon the recommendation of the State conventions, which had proposed amendments in this very form. This pointed out the mode most agreeable to the people of America, and therefore the one most eligible for Congress to pursue; it will likewise be the most convenient way. Suppose the amendinents ratified by the several States; Congress may order a number of copies to be printed, into which the alterations will be inserted, and the work stand perfect and entire.

I believe it never was contemplated by any gentleman 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. But certainly there is convenience and propriety in completing the work in a way provided for in itself. The records of Congress and the several States will mark the progress of the business, and nothing will appear to be done but what is actually performed."

Mr. MADISON. The gentleman last up has left me but one remark to add, and that is, if we adopt the amendment, we shall so far unhinge the business, as to occasion alterations in every article and clause of the report.

Mr. HARTLEY hoped the committee would not agree to the alteration, because it would perplex the business. He wished the propositions to be simple and entire, that the State Mr. STONE asked the gentleman last up, how Legislatures might decide without hesitation, he meant to have the amendments incorporated? and every man know what was the ground on Was it intended to have the constitution repub- which he rested his political welfare. Besides, lished, and the alterations inserted in their the consequent changes which the motion would proper places? He did not see how it was practi-induce, were such as, he feared, would take up cable to propose amendments, without making out a new constitution, in the manner brought forward by the committee.

some days, if not weeks; and the time of the House was too precious to be squandered away in discussing mere matter of form.

H. OF R.]

Amendments to the Constitution.

[AUGUST 13, 1789.

Mr. PAGE was sorry to find the gentlemen tal acts. Is the habeas corpus act, or the statute stop at the preamble; he hoped they would pro- De Tollagio non concedendo incorporated in ceed as soon as the obstruction was removed, magna charta? And yet there is not an Englishand that would be when the motion was nega-man but would spill the last drop of his blood tived.

He thought the best way to view this subject, was to look at the constitution as a bill on its passage through the House, and to consider and amend its defects, article by article; for which reason he was for entering at once upon the main business. After that was gone through, it would be time enough to arrange the materials with which the House intended to form the preamble.

Mr. LIVERMORE insisted, that neither this Legislature, nor all the Legislatures in America, were authorized to repeal a constitution; and that must be an inevitable consequence of an attempt to amend it in a way proposed by the committee. He then submitted to gentlemen the propriety of the alteration.

As to the difficulty which had been supposed in understanding supplemental laws, he thought but little of it; he imagined there were things in the constitution more difficult to comprehend than any thing he had yet seen in the amendments.

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; it is this: 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.

in their defence; it is these, with some other acts of Parliament and magna charta, that form the basis of Engish liberty. We have seen amendments to their constitution during the present reign, by establishing the independence of the judges, who are hereafter to be appointed during good behavior; formerly they were at the pleasure of the crown. But was this done by striking out and inserting other words in the great charter? No, sir, the constitution is composed of many distinct acts; but an Englishman would be ashamed to own that, on this account, he could not ascertain his own privileges or the authority of the Government.

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.

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 imporSome gentlemen talk of repealing the present tance, in every case where the two were not inconstitution, and adopting an improved one. If compatible. But if these observations alone we have this power, we may go on from year should be thought insufficient to support my to year, making new ones; and in this way, we motion, I would desire gentlemen to consider shall render the basis of the superstructure the the authorities upon which the two constitutions most fluctuating thing imaginable, and the peo-are to stand. The original was established by ple will never know what the constitution is. As for the alteration proposed by the committee to prefix before "We the people," certain dogmas, I cannot agree to it; the words, as they now stand, speak as much as it is possible to speak; it is a practical recognition of the right of the people to ordain and establish Governments, and is more expressive than any other mere paper declaration.

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.

But why will gentlemen contend for incorporating amendments into the constitution? They say, that it is necessary for the people to have the whole before them in one view. Have they precedent for this assertion? Look at the constitution of Great Britain; is that all contained in one instrument? It is well known, that mag- Gentlemen say, it would be convenient to na charta was extorted by the barons from King have it in one instrument, that people might see John some centuries ago. Has that been alter- the whole at once; for my part, I view no diffied since by the incorporation of amendments? culty on this point. The amendments reported Or does it speak the same language now, as it are a declaration of rights; the people are sedid at the time it was obtained? Sir, it is not cure in them, whether we declare them or not; altered a tittle from its original form. Yet there the last amendment but one provides that the have been many amendments and improvements three branches of Government shall each exerin the constitution of Britain since that period.cise its own rights. This is well secured already; In the subsequent reign of his son, the great charters were confirmed with some supplemen

and, in short, I do not see that they lessen the force of any article in the constitution; if so,

AUGUST 13, 1789.]

Amendments to the Constitution.

[H. OF R.

there can be little more difficulty in compre- authority than the original system. The conhending them whether they are combined inventions of the States, respectively, have agreed one, or stand distinct instruments. for the people, that the State Legislatures shall

Mr. SMITH read extracts from the amend-be authorized to decide upon these amendments ments proposed by several of the State conven- | in the manner of a convention. If these acts of tions at the time they ratified the constitution, the State Legislatures are not good, because they from which, he said, it appeared that they were are not specifically instructed by their constigenerally of opinion that the phraseology of the tuents, neither were the acts calling the first constitution ought to be altered; nor would this and subsequent conventions. mode of proceeding repeal any part of the constitution but such as it touched, the remainder will be in force during the time of considering it and ever after.

As to the observations made by the honorable gentleman from Georgia, respecting the amendments made to the constitution of Great Britain, they did not apply; the cases were nothing like similar, and consequently, could not be drawn into precedent. The constitution of Britain is neither the magna charta of John, nor the habeas corpus act, nor all the charters put together; it is what the Parliament wills. It is true, there are rights granted to the subject that cannot be resumed; but the constitution, or form of Government, may be altered by the authority of Parliament, whose power is absolute without control.

Mr. SENEY was afraid the House would consume more time than was at first apprehended in discussing the subject of amendments, if he was to infer any thing from what had now taken place. He hoped the question would soon be put and decided.

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 amend ments, 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.

Mr. SHERMAN.-The gentlemen who oppose the motion say we contend for matter of form; they think it nothing more. Now we say we contend for substance, and therefore cannot agree to amendments in this way. If they are so desirous of having the business completed, they had better sacrifice what they consider but a matter of indifference to gentlemen, to go more unanimously along with them in altering the constitution.

The question on Mr. SHERMAN's motion was now put and lost.

Mr. LIVERMORE wished to know whether it was necessary, in order to carry a motion in committee, that two-thirds should agree.

Mr. VINING was an enemy to unnecessary debate, but he conceived the question to be an important one, and was not displeased with the discussion that had taken place; he should, however, vote in favor of the most simple mode. 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 to adopt his motion; because if we do not, we cannot obtain any amendment what ever. 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 An appeal being made from the opinion of the of the people, to propose amendments whenever chair, it was, after some observations, confirmed two-thirds of both Houses shall think fit. Now, by the committee. After which the committee if this is the fact, the propositions of amend-rose and reported progress. ment will be found to originate with a higher Adjourned.


Mr. HARTLEY mentioned, that in Pennsylvania, they had a council of censors who were authorized to call a convention to amend the constitution when it was thought necessary, but two-thirds were required for that purpose. had been a member of that body, when they had examined the business in a committee of council; the majority made a report, which was lost for want of two-thirds to carry it through the council.

Some desultory conversation took place on this subject, when it was decided by the chairman of the committee that a majority of the committee were sufficient to form a report.

H. OF R.]

Amendments to the Constitution.

FRIDAY, August 14.

[AUGUST 14, 1789.

ABIEL FOSTER, from New Hampshire, ap- something might be proposed subversive of what peared and took his seat.


The House then again resolved itself into a Committee of the whole, on the amendments to the constitution, Mr. TRUMBULL in the chair; when,

Mr. SMITH wished to transpose the words of the first amendment, as they did not satisfy his mind in the manner they stood.

haps, in going through with the amendments, was there declared; wherefore he wished the committee would pass over the preamble until they had gone through all the amendments, and then, if alterations were necessary, they could be accommodated to what had taken place in the body of the constitution.

Mr. LIVERMORE was not concerned about the preamble; he did not care what kind it was agreed to form in the committee; because, when it got before the House, it would be undone if one member more than one-third of the whole opposed it.

Mr. PAGE thought the preamble no part of the constitution; but if it was, it stood in no need of amendment; the words "We the people," had the neatness and simplicity, while its expression was the most forcible of any he had ever seen prefixed to any constitution. He did not doubt the truth of the proposition brought forward by the committee, but he doubted its necessity in this place.

Mr. MADISON.-If it be a truth, and so selfevident that it cannot be denied; if it be recognised, as is the fact in many of the State constitutions; and if it be desired by three important States, to be added to this, I think they must collectively offer a strong inducement to the mind desirous of promoting harmony, to acquiesce with the report; at least, some strong arguments should be brought forward to show the reason why it is improper.

Mr. GERRY said, they were not well expressed; we have it here" government being intended for the benefit of the people;" this holds up an idea that all the Governments of the earth are intended for the benefit of the people. Now, I am so far from being of this opinion, that I do not believe that one out of fifty is intended for any such purpose. I believe the establishment of most Governments is to gratify the ambition of an individual, who, by fraud, force, or accident, had made himself master of the people. If we contemplate the history of nations, ancient or modern, we shall find they originated either in fraud or force, or both. If this is demonstrable, how can we pretend to say that Governments are intended for the benefit of those who are most oppressed by them. This maxim does not appear to me to be strictly true in fact, therefore I think we ought not to insert it in the constitution. I shall therefore propose to amend the clause, by inserting "of right," then it will stand as it ought. I do not object to the principle, sir; it is a good one, but it does not generally hold in practice. The question on inserting the words "of right" was put, and determined in the negative. Mr. TUCKER.-I presume these propositions are brought forward under the idea of being amendments to the constitution; but can this be esteemed an amendment of the constitution? If I understand what is meant by the introductory paragraph, it is the preamble to the constitution; but a preamble is no part of the constitution. It is, to say the best, a useless amendment. For my part, I should as soon think of amending the concluding part, consisting of General Washington's letter to the President of Congress, as the preamble; but if the principle is of importance, it may be intro-give them a right to do what they did on moduced into a bill of rights.

Mr. SMITH read the amendments on this head, proposed by the conventions of New York, Virginia, and North Carolina, from which it appeared that these States had expressed a desire to have an amendment of this kind.

Mr. TUCKER replied, that the words" We the people do ordain and establish this constitution for the United States of America," were a declaration of their action; this being performed, Congress have nothing to do with it. But if it was necessary to retain the principle, it might come in at some other place.

Mr. SUMTER thought this was not a proper place to introduce any general principle; per

My worthy colleague says, the original expression is neat and simple; that loading it with more words may destroy the beauty of the sentence; and others say it is unnecessary, as the paragraph is complete without it. Be it so, in their opinion; yet, still it appears important in the estimation of three States, that this solemn truth should be inserted in the constitution. For my part, sir, I do not think the association of ideas any wise unnatural; it reads very well in this place; so much so, that I think gentlemen, who admit it should come in somewhere, will be puzzled to find a better place.

Mr. SHERMAN thought they ought not to come in in this place. The people of the United States have given their reasons for doing a certain act. Here we propose to come in and

tives which appeared to them sufficient to warrant their determination; to let them know that they had a right to exercise a natural and inherent privilege, which they have asserted in a solemn ordination and establishment of the constitution. Now, if this right is indefeasible, and the people have recognised it in practice, the truth is better asserted than it can be by any words whatever. The words "We the people" in the original constitution, are as copious and expressive as possible; anyaddition will only drag out the sentence without illuminating it; for these reasons, it may be hoped the committee will reject the proposed amendment.

The question on the first paragraph of the

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