Debates over the Bill of Rights in the First Congress
August 13, 1789
The engrossed bill for providing for the expenses which may attend negotiations with the Indian tribes, and the appointment of commissioners for managing the same, was read the third time, passed, and sent to the Senate for concurrence.
AMENDMENTS TO THE CONSTITUTION
Mr. LEE moved that the House now resolve itself into a Committee of the whole, on the report of the committee of eleven, to whom it had been referred to take the subject of amendments to the constitution of the United States generally into their consideration.
Mr. PAGE hoped the House would agree to the motion of his colleague without hesitation, because he conceived it essentially necessary to proceed and finish the business as speedily as possible; for whatever might be the fact with respect to the security which the citizens of America had for their rights and liberties under the new constitution, yet unless they saw it in that light, they would be uneasy, not to say dissatisfied.
He thought, likewise, that the business would be expedited by the simplicity and self-evidence which the propositions reported possessed, as it was impossible that much debate could take place.
Mr. SEDGWICK was sorry that the motion was made, because he looked upon this as a very improper time to enter upon the consideration of a subject which would undoubtedly consume many days; and when they had so much other and more important business requiring immediate attention, he begged gentleman to recollect that all they had hitherto done was of little or no effect; their impost and tonnage laws were but a dead letter.
Mr. MADISON did not think it was an improper time to proceed in this business; the House had already gone through with subjects of a less interesting nature; now if the Judiciary bill was of such vast importance, its consideration ought not to have been postponed for those purposes.
He would remind gentlemen that there were many who conceived amendments of some kind necessary and proper in themselves; while others who are not so well satisfied of the necessity and propriety, may think they are rendered expedient from some other consideration. Is it desirable to keep up a division among the people of the United States on a point in which they consider their most essential rights are concerned? If this is an object worthy the attention of such a numerous part of our constituents, why should we decline taking it into our consideration, and thereby promote that spirit of urbanity and unanimity which the Government itself stands in need of for its more full support?
Already has the subject been delayed much longer than could have been wished. If after having fixed a day for taking it into consideration, we should put it off again, a spirit of jealousy may be excited, and not allayed without great inconvenience.
Mr. VINING, impressed by the anxiety which the honorable gentleman from Virginia had discovered for having the subject of amendments considered, had agreed, in his own mind, to waive, for the present, the call he was well authorized to make, for the House to take into consideration the bill for establishing a Land Office for the disposal of the vacant lands in the Western Territory. In point of time, his motion had the priority; in point of importance, every candid mind would acknowledge its preference; and he conceived the House was bound to pay attention to it as early as possible; as they had given leave for a bill to be brought in, they ought not to neglect proceeding onwards with it.
Mr. SEDGWICK hoped the House would not consume their time in a lengthy discussion upon what business should be done first. He was of opinion that there were several matters before them of more importance than the present; and he believed the people abroad were neither anxious nor jealous about it; but if they were, they would be satisfied at the delay, when they were informed of the cause. He begged, therefore, that the question proposed by the gentleman from Virginia (Mr. Lee) might be put without further debate.
Mr. SMITH said that the judicial bill was entitled to the preference in point of order, and in point of propriety it deserved the first attention of the House. For his part, he could not conceive the necessity of going into any alterations of the Government until the Government itself was perfected. The constitution establishes three branches to constitute a whole; the legislative and executive are now in existence, but the judicial is uncreated. While we remain in this state, not a single part of the revenue system can operate; no breach of your laws can be punished; illicit trade cannot be prevented. Greater harm will arise from delaying the establishment of the judicial system, that can possibly grow from a delay of the other subject. If gentlemen are willing to let it lie over to a period of greater leisure, I shall join them cheerfully and candidly, said he, in a full discussion of that business.
An honorable gentleman from Virginia observed to us that these propositions were self-evident, that little or no debate could grow out of them. That may be his opinion, but truly, sir, it is not mine; for I think some of them are not self-evident, and some of them will admit of lengthy discussion; and some others, I hope, may be rejected, while their place may be better supplied by others hereafter to be brought forward. Some members are pledged to support amendments, and will, no doubt, support them with all the arguments their fancy or ingenuity can suggest. Viewing it in this light, it is not to be expected that the discussion will be ended in less than a fortnight or three weeks; and let gentlemen consult their own feelings whether they have so much time now to spare.
Mr. HARTLEY thought the judicial system ought to be finished before any other business was entered upon, and was willing to consider of amendments to the constitution when the House was more disengaged; because he wished very much that the constitution was so modified as to give satisfaction to honest and candid minds. Such would be satisfied with securing to themselves and their posterity all those blessings of freedom which they are now possessed of. As to the artful and designing, who had clamored against the whole work, he had not the smallest desire to gratify them: he hoped and trusted their numbers were but few.
Mr. GERRY thought the discussion would take up more time than the House could now spare; he was, therefore, in favor of postponing the consideration of the subject, until the judicial bill, and the bill for registering and clearing vessels, and some other bills relating to the revenue business, were gone through. He asked the gentleman from Virginia, if he conceived that the amendments in the report were all that were to be taken into consideration. He thought the community would be little more pleased with them than if they had omitted the subject altogether. Besides, it was absurd to suppose that the members were obliged to confine their deliberations solely to those objects, when it was very well know that the members from Massachusetts and New Hampshire were bound to bring forward and support others. The members from other States may be inclined to do the same with respect to the amendments of their own conventions; this will inevitably produce a more copious debate than the gentleman contemplates. From these considerations it might be hoped that honorable gentleman would no longer press the motion.
Mr. LAWRENCE had no objection to consider amendments at a proper time, but did not think that the present was a proper time to enter upon them, nor did he suppose that gentleman would be precluded from a full discussion of the whole subject whenever it was taken up. Gentlemen would find him ready to acquiesce in every thing that was proper, but he could not consent to let the great business of legislation stand still, an thereby incur an absolute evil in order to rid themselves of an imaginary one; for whether the subject of amendments was considered now or at a more distant period, appeared to his mind a matter of mere indifference. It may be further observed, that few, if any, of the State Assemblies are now in session; consequently the business could not be completed even if Congress had already done their part; but certainly the people in general are more anxious to see the Government in operation, than speculative amendments upon an untried constitution.
Mr. MADISON.–I beg leave to make one or two remarks more, in consequence of the observations which have fallen from the different sides of the House. Some gentleman seem to think that additional propositions will be brought forward; whether they will or not, I cannot pretend to say; but if they are, I presume they will be no impediment to our deciding upon those contained in the report. But gentlemen who introduce these propositions will see, that if they are to produce more copious debate than has hitherto taken place, they will consume a great part of the remainder of the session. I wish the subject well considered, but I do not wish to see any unnecessary waste of time; and gentlemen will please to remember that this subject has yet to go before the Senate.
I admit, with the worthy gentleman who preceded me, that a great number of the community are solicitous to see the Government carried into operation; but I believe that there is a considerable part also anxious to secure those right which they are apprehensive are endangered by the present constitution. Now, considering the full confidence they reposed at the time of its adoption in their future representatives, I think we ought to pursue the subject to effect. I confess it has already appeared to me, in point of candor and good faith, as well as policy, to be incumbent on the first Legislature of the United States, at their first session, to make such alterations in the constitution as will give satisfaction, without injuring or destroying any of its vital principles.
I should not press the subject at this time, because I am well aware of the importance of the other business enumerated by the gentlemen who are adverse to the present motion, but from an apprehension that, if it is delayed until the other is gone through, gentlemen’s patience and application will be so harassed and fatigued, as to oblige them to leave it in an unfinished state until the next session; besides, were the Judicial bill to pass now, it could not take effect until others were enacted, which probably at this time are not drawn up.
Mr. SMITH.–The honorable gentleman has concluded his remarks by assigning the best reason in the world why we should go into a consideration of the Judicial bill. He says, that even if it were now passed, it would take some time before it could get into operation; he must admit it to be an essential part of the Government, and, as such, ought not to remain a single instant in a state of torpidity.
Mr. FITZSIMONS wished gentlemen would suffer the question to be put, and not consume the time in arguing about what should be done. If a majority was not in favor of considering amendments, they might proceed to some other business.
Mr. PAGE was positive the people would never support the Government unless their anxiety was removed. They, in some instances, adopted it, in confidence of its being speedily amended; they will complain of being deceived unless their expectations are fulfilled. So much time has elapsed since the subject was first brought forward, said he, that people will not think us serious, unless we now set about and complete it.
He begged gentlemen to consider the importance of the number of citizens, who were anxious for amendments; if these had been added to those who openly opposed the constitution, it possibly might have met a different fate. Can the Government, under these circumstances, possess energy, as some gentlemen suppose? Is not the confidence of the people absolutely necessary to support it?
The question was now put, and carried in the affirmative.
The House then resolved itself into a Committee of the whole, Mr. Boudinot in the chair, and took the amendments under consideration. The first article ran thus: “In the introductory paragraph of the constitution, before the words ‘We the people,’ add ‘Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.”
Mr. SHERMAN.–I believe, Mr. Chairman, this is not the proper mode of amending the constitution. 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. Its absurdity will be discovered by comparing it with a law. Would any Legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected? When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference.
Besides this, sir, it is questionable whether we have the right to propose amendments in this way. The constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments. Again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new constitution, we remove the basis on which we mean to build. For these reasons, I will move to strike out that paragraph and substitute another.
The paragraph proposed was to the following effect:
Resolved by the Senate and House of Representatives of the United States in Congress assembled, That the following articles be proposed as amendments to the constitution, and when ratified by three-fourths of the State Legislatures shall become valid to all intents and purposes, as part of the same.
Under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form.
Mr. MADISON.–Form, sir, is always of less importance than the substance; but on this occasion, I ADMIT THAT FORM IS OF SOME CONSEQUENCE, AND IT WILL BE WELL FOR THE House to pursue that which, upon reflection, shall appear to be the most eligible. Now it appears to me, 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, then it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. It will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work.
Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it to one act. I am not, however, very solicitous about the form, provided the business is but well completed.
Mr. SMITH did not think the amendment proposed by the honorable gentlemen from Connecticut was compatible with the constitution, which declared, that the 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; but according to the idea of the amendment, the instrument is to have five or six suits of improvements. Such a mode seems more calculated to embarrass the people than anything else, while nothing in his opinion was a juster cause of complaint than the difficulties of knowing the law, arising from legislative obscurities that night easily be avoided. He said, that it had certainly been the custom in several of the State Governments, to amend their laws by way of supplement. But South Carolina had been an instance of the contrary practice, in revising the old code; instead of making acts in addition to acts, which is always attended with perplexity, she has incorporated them, and brought them forward as a complete system, repealing the old. This is what he understood was intended to be done by the committee; the present copy of the constitution was to be done away, and a new one substituted in its stead.
Mr. TUCKER wished to know whether the deliberations of the committee were intended to be confined to the propositions on the table. If they were not, he should beg leave to bring before them the amendments proposed by South Carolina. He considered himself as instructed to bring them forward, and he meant to perform his duty by an early and prompt obedience. He wished to have the sense of the House on this point, whether he was in order to bring them forward.
Mr. LIVERMORE was clearly of opinion, that whatever amendments were made to the constitution, they ought to stand separate from the original instrument. We have no right, said he, to alter a clause, any otherwise then by a new proposition. We have well-established precedents for such a mode of procedure in the practice of the British Parliament and the State Legislatures throughout America. I do not mean, however, to assert that there has been no instance of a repeal of the whole law on enacting another; but this has generally taken place on account of the complexity of the original, with its supplements. Were we a mere Legislative body, no doubt it might be warrantable in us to pursue a similar method; but it is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the constitution of the United States, by making a new one to substitute in its place; the reason of this is grounded on a very simple consideration. It is by virtue of the present constitution, I presume, that we attempt to make another; now, if we proceed to the repeal of this, I cannot see upon what authority we shall erect another; if we destroy the base, the superstructure falls of course. At some future day it may be asked upon what authority we proceeded to raise and appropriate public moneys. We suppose we do it in virtue of the present constitution; but it may be doubted whether we have a right to exercise any of its authorities 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 recommended by the committee.
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 he trusted they would adopt a plainness and simplicity of style on this and every other occasion, which should be easily understood. If the mode proposed by the gentleman from Connecticut was adopted, the system would be distorted, and, like a careless written letter, have more 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.
Mr. CLYMEN was of opinion with the gentleman from Connecticut, that the amendments ought not to be incorporated in the body of the work, which he hoped would remain a monument to justify those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amendments. 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. Now if we incorporate these amendments, we must undoubtedly go further, and say that the constitution so formed was defective, and had 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 gentleman from South Carolina, I shall just remark, 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 same; 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. LIVERMORE.–The mode adopted by the committee might be very proper, provided Congress had the forming of a constitution in contemplation; then they, or an individual member, might propose to strike out a clause and insert another, as is done with respect to article 3, section 2. But certainly no gentleman acquainted with legislative business would pretend to 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. GERRY asked, if the mode could make any possible difference, provided the sanction was the same; or whether it would operate differently in any one instance? If it will not, we are disputing about form, and the question will turn on the expediency. Now one gentleman tells you, that he is so attached to this instrument, 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 favorable 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 constitution certain words and sentences, and inserting others. But, perhaps, in our great veneration for the original composition, we may go further, and pass an act to prohibit these interpolations, 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.” 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 he 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 out.
If we proceed in the way proposed by the honorable gentleman from Connecticut, I presume the title of our first amendment well be, 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; 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 amendments 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 became 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 inconvenience, 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.
Mr. STONE asked the gentleman last up, how he meant to have the amendments incorporated? Was it intended to have the constitution republished, and the alterations inserted in their proper places? He did not see how it was practicable to propose amendments, without making out a new constitution, in the manner brought forward by the committee.
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 Government for another. It is true, amendments were proposed by some of them; but it does not follow, of necessity, that we should alter the form 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 amendments 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 Legislatures might decide without hesitation, and every man know what was the ground on which he rested his political welfare. Besides, the consequent changes which the motion would induce, were such as, he feared, would take up some days, if not weeks; and the time of the House was too precious to be squandered away in discussing mere matter of form.
Mr. PAGE was sorry to find the gentlemen stop at the preamble; he hoped they would proceed as soon as the obstruction was removed, and that would be when the motion was negatived.
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.
Some gentlemen 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. 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.
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 magna charta was extorted by the barons from King John some centuries ago. 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? Sir, it is not altered a tittle from its original form. Yet there have been many amendments and improvements in the constitution of Britain since that period. In the subsequent reign of his son, the great charters were confirmed with some supplemental acts. Is the habeas corpus act, or the statute De Tollagio non concedendo incorporated in magna charta? And yet there is not an Englishman but would spill the last drop of his blood in their defence; it is these, with some other acts of Parliament and magna charta, that form the basis of English 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 importance, in every case where the two were not incompatible. But if these observations alone should be thought insufficient to support my motion, I would desire gentlemen to consider the authorities upon which the two constitutions are to stand. 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: 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.
Gentlemen say, it would be convenient to have it in one instrument, that people might see the whole at once; for my part, I view no difficulty on this point. The amendments reported are a declaration of rights; the people are secure in them, whether we declare them or not; the last amendment but one provides that the three branches of Government shall each exercise its own rights. This is well secured already; and, in short, I do not see that they lessen the force of any article in the constitution: if so, there can be little more difficulty in comprehending them whether they are combined in one, or stand distinct instruments.
Mr. SMITH read extracts from the amendments proposed by several of the State conventions at the time they ratified the constitution, from which, he said, it appeared that they were generally of opinion that the phraseology of the constitution ought to be altered; nor would this 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 subjects 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.
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 whatever. 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 the 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 of the people, to propose amendments whenever two-thirds of both Houses shall think fit. Now, if this is the fact, the propositions of amendment will be found to originate with a higher authority than the original system. The conventions of the States, respectively, have agreed for the people, that the State Legislatures shall be authorized to decide upon these amendments in the manner of a convention. If these acts of the State Legislatures are not good, because they are not specifically instructed by their constituents, neither were the acts calling the first and subsequent conventions.
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 amendments, 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 ratifications 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. 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. He 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.
An appeal being made from the opinion of the chair, it was, after some observations, confirmed by the committee. After which the committee rose and reported progress.