Part 2: Fixing The Problem
Essay 28 – Article V
“That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
-James Madison, Federalist 43
Article V of the Constitution provides us the means to amend it. The Founders were quite aware that they didn’t create a perfect Constitution. As I have outlined throughout this essay series, a number of compromises were made in order to get it ratified. They understood that an imperfect Constitution was much better than no Constitution.
They also knew that they were creating something brand new. Something that had never been tried before. Although they based their work on intense study of many previous government systems throughout history, actually putting the American Experiment into practice would reveal many situations that they simply could not predict. The flaws in the system would eventually begin to develop into real problems that would need to be fixed.
In addition, if true liberty means anything, they fully believed that people of the future should not be permanently stuck living under the values and beliefs and laws of those in the past.
Therefore, they were wise to include within the Constitution itself, a mechanism to amend the Constitution. By design, they made it a fairly difficult process in order to avoid making rash, impulsive changes based on the passions of the day. Although things change that require amendments, the Constitution still needs to be a steady, reliable, and predictable presence to be effective. It has to have a certain level of permanency and certainty for the people to put their trust into it. At the same time, it couldn’t be too difficult where it would be unlikely to be able to fix the problems that need fixing.
They created an amendment process where Congress could propose amendments when two thirds of both the House and the Senate agreed. Once that is done, the proposed amendments would become effective only if three fourths of the States approve it.
Then during the waning days of the Constitutional Convention, after just about every issue had been debated and argued and compromised on, and everyone was ready to agree on the new Constitution, George Mason from Virginia stood up and stated, and I paraphrase with a lot of literary liberty, “Hey you guys, we have a problem. A big problem. In Article V, we have included a way for Congress to propose amendments to the Constitution when they see issues that will certainly arise in the future that we have not considered or handled properly, which is great. However, what if the future problems actually involve Congress and the federal government overstepping their authority and assuming powers not granted to them? We certainly cannot expect that they will correct themselves! We need a way for the people, through the states, to propose amendments themselves in order to reign in an out-of-control federal government through peaceful means.”
And so, they added a second method of amending the Constitution to Article V.
While the first method begins with a proposal by Congress, the second method bypasses Congress altogether and allows the States to begin the process of proposing Amendments. This solves the problem that George Mason presented, as described above.
In the end, Article V states:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
– Article V, U.S. Constitution
After the description of the two methods of amending the Constitution, Article V contains two clauses that describe two prohibitions to amendment. The first one, “Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article”, concerns the prohibition of amending the slave trade clause. I won’t go into that here because I have already covered that in Essay 20 – More On Slavery.
The final clause in Article V states a prohibition on amending the Constitution to remove the equal representation of the States in the Senate (every State gets two Senators), “and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”. This was included because the smaller states were concerned that three fourths of the States may decide to amend that hard-fought compromise so that Senate representation would be based on population, which would essentially put the smaller States at the mercy of the larger.
About this series:
The People Are Sovereign! is a series of 30 essays that will be posted on a daily basis. The series will continue tomorrow with Essay 29 – Convention of States
To view the previous essay in the series, click this link: Essay 27 – The Administrative State
To view the next essay in the series, click this link: Essay 29 – Convention of States