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Did Madison Flip-Flop?: “Circumstances are now changed”

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Two critical compromises were made during the in-door debates over the ratification of the Constitution. The first was the Massachusetts Compromise where ten Antifederalists agreed to ratify the Constitution now in exchange for what we might call a gentleman’s agreement that Massachusetts Congressmen in the First Congress would pursue the adoption of nine amendments to the Constitution. This agreement — ratify now and amend later — effectively took the immediate steam out of two Antifederalist strategies: 1) to place conditional amendments on the Constitution before ratification and 2) to call for a Second Convention to reconsider the work of the Philadelphia Convention. Although the Massachusetts ratification compromise was unconditional, the compromise thrust the issue of amendments to the forefront of the ratification discussion in the remaining states of Maryland, South Carolina, North Carolina, New Hampshire, Virginia, New York, and Rhode Island.

It is beyond the scope of this commentary to detail what took place at these ratifying conventions concerning conditional amendments. (Please see the previous section of this exhibit and the Ratification exhibit on this site for fuller coverage.) Suffice it to note here that the Massachusetts Compromise amendments called for a fundamental change in the structure and powers of the new federal government and paid only limited attention to a bill of rights. By the time Virginia and New York met, however, a new compromise had emerged: ratify now and a bill of rights later. Both of these states repeated the Massachusetts theme of ratify now and amend later, an approach also adopted by New Hampshire, but the theme of a bill of rights was added that was distinguished from the call for amendments to change the structure and powers of the new government. The closest that conditional amendments came to passage was in New York.

We know what George Mason thought about “ratify now and amend later.” In a letter to Jefferson dated May 26, 1788, concerning the upcoming Virginia Ratifying Convention in June, he said: “There seems to be a great majority for Amendments; but many are for ratifying it first, and amending afterwards. This idea appears so utterly absurd, that I cannot think any Man of Sense candid, in proposing it.” This comment was made before the Virginia Ratifying Convention made the distinction between amendments and a bill of rights, thus introducing the new Virginia formula: ratifying it first, and a bill of rights afterwards.

That’s when, for Mason, the absurd turned into a farce. Writing to John Mason on July 31, 1789, after Madison introduced his 39 Proposals on June 8 and the Select Committee had moved them on to the next stage, he says:

You were mistaken in your suggestion, that the Publication you saw of Mr. Madison’s, was a certain indication of proper Amendments to the Government being obtained. It was indeed, natural enough to think so. But the Fact was, Mr. Madison knew that he could not be elected, without making some such Promises. By them he carried his election; and in order to appear as good as his word, he has made some motions in Congress on the subject; and to carry on the farce, is now the ostensible Patron of Amendments. Perhaps some Milk & Water Propositions may be made by Congress to the State Legislatures by way of throwing out a Tub to the Whale; but of important & substantial Amendments, I have not the least Hope.

Mason’s response to both the absurd and the farcical then was to join forces with other Virginia Antifederalists like Patrick Henry and call for a Second Constitutional Convention whose members would reject the work of the Philadelphia Convention. And, as a second strategy, they would try to make sure that Virginia select Antifederalists to the First Congress where they would support the amendment proposals of the Virginia Ratifying Convention rather than the bill of rights proposals that Madison was befriending. So these Virginia Antifederalists took the absurd story to the farce level one step further. Their position was Second Convention now, or amend now.

A second convention was something that Madison vigorously opposed. Writing to George Lee Turberville on November 2, 1788, Madison expressed his opposition to 1) the imprudence of a Second Convention, 2) the “misinformation” spread by Patrick Henry that Madison thought that “not a letter of the Constitution could be spared,” and 3) the negative effect which such a Convention would have on the freedom movement in France. Also note Madison’s appeal to “the apparent sense of America” in his support for a bill of rights being passed by the First Congress. Earlier in Federalist 63 he expressed his understanding of “the republican principle” in the expression “the deliberate sense of the community”:

You wish to know my sentiments on the project of another general Convention as suggested by New York. I shall give them to you with great frankness, though I am aware they may not coincide with those in fashion at Richmond or even with your own. I am not of the number if there be any such, who think the Constitution, lately adopted, a faultless work. On the contrary there are amendments which I wished it to have received before it issued from the place in which it was formed. These amendments I still think ought to be made according to the apparent sense of America and some of them at least I presume will be made….

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America and under all the disadvantages I have mentioned….

The Constitution just established… has filled that quarter of the Globe (Europe) with equal wonder and veneration, that its influence is already secretly but powerfully working in favor of liberty in France.

Madison repeats his claim that he is not opposed to friendly alterations in the Constitution in a letter to George Eve on January 2, 1789. In the process, he indicates that a “change of circumstances” — the ratification of the Constitution — permits the First Congress — perhaps we might add in Madisonian language, that “the sense of America” wants the First Congress to propose — “the most satisfactory provisions for all essential rights”:

I freely own that I have never seen in the Constitution as it now stands those serious dangers which have alarmed many respectable Citizens. Accordingly whilst it remained unratified, and it was necessary to unite the States in some one plan, I opposed all previous alterations as calculated to throw the States into dangerous contentions and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution.

Circumstances are now changed: The Constitution is established on the ratification of eleven States and a very great majority of the people of America; and amendments, if pursued with proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favor of liberty. Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the First Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c. I think it will be proper also to provide expressly in the Constitution, for the periodical increase of the number of Representatives until the amount shall be entirely satisfactory; and to put the judiciary department into such a form as will render vexatious appeals impossible….

He repeats “the change of situation” theme to Thomas Mann Randolph in a letter dated January 13, 1789:

The change of situation produced by the establishment of the Constitution, leaves me in common with other friends of the Constitution, free, and consistent in espousing such a revisal of it, as will either make it better in itself; or without making it worse, will make it appear better to those, who now dislike it.

It is accordingly, my sincere opinion, and wish, that in order to effect these purposes, the Congress, which is to meet in March, should undertake the salutary work. It is particularly, my opinion, that the clearest, and strongest provision ought to be made, for all those essential rights, which have been thought in danger, such as the rights of conscience, the freedom of the press, trials by jury, exemption from general warrants, &c.

I think also, that the periodical increase of the House of Representatives, until it attains a certain number, ought to be expressly provided for, instead of being left to the discretion of the government. There is room likewise in the Judiciary department for amendment. It ought to be so regulated, as to render vexatious, and superfluous appeals, impossible. In a number of other particulars, alterations are eligible either on their own account, or on account of those, who wish for them.

What Jefferson said to Mason in a letter dated June 13, 1790, Madison might well say to us: “In general I think it necessary to give as well as take in a government like ours.”