Live After Quit

The New Constitution: The Ratification and Amendment Process

[Chapter 19 of Rothbard’s newly edited and released Conceived in Liberty, vol. 5, The New Republic: 1784–1791.]

A particularly vital aspect of the Constitution was the procedure to be set up for its ratification. The draft proposed that the Constitution be submitted to Congress and then to special conventions, so that state legislatures could be circumvented. More importantly, it imposed a revolution in the country’s polity because it proposed that only a certain number of states would need to ratify to put the Constitution in into effect—a strong violation of the Confederation’s unanimity principle.

The draft left blank the number of states needed to ratify the Constitution, and James Wilson began discussion of ratification by proposing that only seven state conventions had to ratify. Wilson brusquely dismissed existing law or rights and employed an irrelevant metaphor: “The House on fire must be extinguished, without a scrupulous regard to ordinary rights.” Madison supported this view, though he suggested that the number might be raised to eight or nine states. Daniel Carroll of Maryland demanded unanimity: “unanimity being necessary to dissolve the existing confederacy which had been unanimously established.” Finally, Randolph’s proposal of nine was adopted by a vote of 8-3, the three holdouts being Virginia, North Carolina, and South Carolina. Rufus King also moved to clarify that the Constitution would only apply to the states ratifying it. Obviously it could not be imposed on the other states, short of open war.

What of the state conventions? Even Gouverneur Morris relented from the ultra-nationalist program and moved to allow every state to ratify whichever way it wished. Madison insisted that the special convention would be the most likely to ratify, and King became yet another delegate to hint of dissolution if the draft was changed. For his part, Luther Martin led the pro-state-legislature opposition. But state conventions were retained and the nine-state convention clause of the Constitution was voted by all states except Maryland, whose nay vote was led by Martin and Carroll.

Finally, there was the question of submitting the Constitution to Congress for approval. Charles Pinckney and Gouverneur Morris now brusquely moved to end the need for congressional approval; instead, the Constitution would be submitted to state conventions regardless, the idea being to ram the Constitution through the conventions before the people could have second thoughts. Or, as Morris put it, any delay would allow the state government leaders to “intrigue & turn the popular current against it.” In other words, deliberation and modification were not needed anymore as all of the important discussion had occurred by the wise men at the convention. Luther Martin, staunchly opposed to this critical nationalist scheme, was certainly more accurate. It is true, he maintained, that “after a while the people would be agst. it. [the Constitution] but for a different reason … he believed they would not ratify it unless hurried into it by surprize.” Elbridge Gerry backed Martin in opposition. This particular proposal was defeated, but the essence of the plan was approved, and the approval of Congress was no longer required in the ratification clause. Gerry and Mason moved to postpone the whole clause, and Mason bitterly denounced the Constitution, declaring that he would “sooner chop off his right hand than put it to the Constitution as it now stands” and hinted at a later constitutional convention to redo many defeated parts. Randolph concurred and suggested that state conventions be free to propose amendments to be submitted to another convention. Without this the people would only have a chance to ratify or reject a document handed to them as a whole fait accompli; on the other hand, the Randolph proposal would actually allow the people to participate in the constitution-making process. Morris agreed and sarcastically argued that he looked forward to another convention, but one that would erect a much tighter central government, a convention “that will have the firmness to provide a vigorous Government, which we are afraid to do.” However, postponement was defeated by 3-8 (in favor: New Jersey, Maryland, North Carolina), and the new ratification clause was approved by 10-1 (only Maryland opposing).

In mid-September, Elbridge Gerry renewed the attack. He picked up a most unexpected ally in Alexander Hamilton, who had returned to the convention in Philadelphia to take part in the final debates. Hamilton argued that not only should Congress have the power to approve the Constitution, but that the state legislatures should also turn the Constitution over to their respective conventions. Randolph, one of the main framers of the Constitution, insisted that he could not agree to it if the ratification clause were not changed—specifically for his plan of a second convention after the state decisions were recorded.

The Hamilton Plan, supported by Gerry, was bitterly attacked by his old fellow ultra-nationalist James Wilson. Wilson declared that it would be unsafe to give the Constitution to Congress because with New York, Rhode Island, and Maryland reflecting strong disapproval of the proposed constitution, a nine-state requirement would barely succeed. King, Rutledge, and George Clymer of Pennsylvania backed Wilson, and the Hamilton-Gerry attempt lost on several votes, the last one being unanimous. Congressional approval was eliminated from the ratification of the Constitution.

In mid-September, Virginia Governor Edmund Randolph, who was at this time now a moderate, made a desperate attempt to revive his cogent plan for a second convention that would consider state convention amendments to the Constitution. It was a poignant moment as this marked the beginning of the end of the convention. Randolph warned that he could not sign the Constitution unless his proposal was adopted. Earlier, Randolph had spelled out his objections to the developing Constitution and believed that the government would “end in Tyranny.” Randolph particularly objected to: the unlimited power for a standing army, the broad necessary and proper clause, the lack of restraint on power to pass navigation acts, and generally, an excessive power in the federal government. George Mason seconded the motion, heavily noting that the dangerous power of the central government would end in tyranny. Warning too that he could not sign the Constitution without this amendment, Mason cogently declared “this Constitution had been formed without the knowledge or idea of the people. A second Convention will know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing.” Elbridge Gerry, a highly prominent delegate involved in the hammering out of the Constitution, backed up Randolph and Mason; he too could not sign unless a second constitutional convention was held. Gerry particularly objected to the vague and broad power of Congress in the necessary and proper clause, to its unlimited power to raise navies and armies, and to no requirement for trial by jury in civil cases. Charles Pinckney, however, replied that the Constitution would then not be agreed upon; “Conventions,” he rather absurdly declared, “are serious things, and ought not to be repeated.” And despite the poignant warnings of such moderates and luminaries of the convention as Randolph, Mason, and Gerry, the convention in its penultimate act rejected Randolph’s motion unanimously.

A final question was the provision for future amendments to the Constitution. The draft provided for amendments to be proposed by two-thirds of the states, which would compel Congress to call a convention to consider them. This initiative in the states and in a special convention pleased the liberals and moderates, but did not satisfy the nationalists who wanted all the power in the central government. Fearful of any amending power in the states, Madison and Hamilton, now back on the ultra-nationalist track, moved to make amending the Constitution far more difficult by placing the imprimatur under the aegis of Congress. Congress could propose amendments by a two-thirds vote of each house, or upon application of two-thirds of the states, and they would then be ratified by three-fourths of state legislatures or state conventions. Crucially, Congress had full authority to either propose amendments or call for state conventions. The convention agreed to this proposal by a vote of 9-1. In mid-September, now, however, the unmoved moderates tried again. Roger Sherman declared his warning that amendments might literally destroy a minority of states, and George Mason warned that the congressional control of amendments would deprive the people of liberating amendments, “if the Government should become oppressive, as he verily believed would be the case.” Gouverneur Morris moved to mollify the moderates, he and Gerry proposing to compel Congress to require a new convention upon application by two-thirds of the states. The proposal passed unanimously. But the ultimate power remained with Congress, for

although the nationalists were forced to make concessions, they had achieved their aim of transferring control of the amending process from the states to Congress. The states were left with a passive role: they must await the submission of amendments to them. They had lost their power to propose amendments, and they have never used their right to request a constitutional convention.1

As early as the August decision, the convention had made a special and rare resolution upon any future amendment process. At the behest of John Rutledge, to the Madison-Hamilton resolution was added a provision that no amendments before 1808 could be made that would affect the slave-importation clause. Here was yet another strengthening of slavery in the American Constitution, a clause cheerfully agreed to almost unanimously at the convention.

Now, in the September session, the moderates and states-righters tried to add further clauses to the Constitution that would be beyond amendment, i.e., never changeable by the people of future generations. Sherman moved that no state without its consent might ever be disturbed in the absolute use of its internal police power or be deprived of its equal suffrage in the Senate. The motion was defeated by 3-8 (Connecticut, New Jersey, and Delaware approving), but Morris, in seeing the restlessness of the small states, proposed the equality of States in the Senate clause, and it passed unanimously without debate. In this offhand way, the framers of 1787 laid their dead hand upon all future generations of Americans, arrogantly dictating to them that they could virtually never choose to change the structure of voting in the Senate without the consent of every state.2

[The numbering of the footnotes in this article differs from that in the original book. Please consult the book for all notes.]

• 1. Jensen, The Making of the American Constitution, p. 102.
• 2. [Editor’s footnote] Farrand, The Records of the Federal Convention, vol. 2, pp. 469, 478–79, 629–32.