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Commentary

On 13 August, Richard Bland Lee of Virginia moved that the House resolve itself into a Committee of the Whole to consider the Committee of Eleven’s draft of proposed amendments. Once again, a debate broke out concerning the propriety of taking up the matter at that time. As in previous debates, most opponents of the motion argued that consideration of amendments would consume too much time and that more pressing business remained before the House (Annals of Congress, 1st Cong., 1st sess., 730-34). Bland Lee’s motion, however, was successful. But immediately as the Committee of the Whole’s began to consider the first proposed amendment, a second extended debate began that, perhaps, sheds some light on the more fundamental concerns of the opponents of taking up amendments. This second debate focused on whether the proposed amendments should be incorporated into the text of the Constitution or whether they should be added by way of supplement. This debate contained discussion of the underlying theories of the source of authority of the Constitution and the legal effect of the amendment process.

Immediately upon the introduction of the Committee of Eleven’s first proposed amendment—a declaration to be added before ‘We the People’—Roger Sherman of Connecticut interjected, ‘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’ (Annals of Congress, 1st Cong., 1st sess., 734.) In his motion, Sherman refers to the method adopted in the Committee of Eleven’s draft of proposed amendments to incorporate the amendments into the body of the Constitution’s text. This method, the same as originally proposed by Madison when he introduced his proposals on 8 June (See Annals, 451-53), is in accord with methods of statutory legislation familiar both then and now.

The Committee of Eleven’s method of incorporating amendments into the text affected the way the proposed amendments were phrased. For example, one proposed amendment read, 'ART. 1, SEC. 6—Between the words "United States," and "shall in all cases," strike out "they," and insert, "But no law varying the compensation shall take effect until an election of Representatives shall have intervened. The members”' (Report of the Committee of Eleven on Amendments to the Constitution, The Bill of Rights, Quill Project at Pembroke College (Oxford, 2019), Session 567 (high resolution photograph from the Library of Congress, available at https://www.loc.gov/resource/rbpe.21101200)). Thus, the draft proposals were not intended to stand alone, either grammatically or conceptually, but only within the context of the text into which the amendment was to be inserted. Furthermore, incorporation of the amendments into the text affected the position within the Constitution where each discrete provision would be found. For example, the Committee of Eleven’s proposed amendment that read, ‘No religion shall be established by law, nor shall the equal rights of conscience be infringed’, was the first of eight clauses (all of which eventually would be adopted in substance, with modifications, in the final Bill of Rights) intended to be inserted into the Constitution’s original text at Article I, section 9, between paragraphs 2 and 3 (ibid.).

As should be evident already to one with even the most casual knowledge of the U.S. Constitution, ultimately Sherman’s method of adding amendments supplementary to the original text—each standing alone—would be adopted. Yet, Sherman’s motion was defeated in the Committee of the Whole after the extensive debate on 13 August, as it, apparently, also had been defeated in the Committee of Eleven (Annals, 740 (See statement of Egbert Benson.)) The proposition that amendments would be appended to the end of the original text was adopted only on 19 August upon the House’s taking up consideration of the Committee of the Whole’s report, when ‘Mr. SHERMAN renewed his motion for adding the amendments to the constitution by way of supplement’ (ibid., 795). Even then, however, ‘ensued a debate similar to what took place in the Committee of the whole’, which, regrettably, the sources do not record (ibid.). Interestingly, the proposition was defeated only a week before it found the approval of two-thirds of the House on 19 August. Perhaps, the extended debates and contentions during the Committee of the Whole’s consideration of amendments swayed some members’ opinions.

The character of the debate, not to mention the repeated introduction of the motion, indicate that the opponents of incorporating amendments believed that the manner by which amendments would be made to the Constitution’s original text went to more than mere form. As noted above, Sherman in introducing the motion contended that incorporating amendments into the body of the text would ‘be destructive of the whole fabric’ of the Constitution (Annals, 734). Although Sherman first states that he fears incorporating ‘heterogeneous articles’ which would contradict one another, he soon moved to a position that touches the source of the Constitution’s authority itself (ibid., 734-35). Sherman questions whether Congress has authority to modify the original text in the manner proposed because ‘The constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments.’ (ibid., 735). He continues, highlighting a fundamental concern: ‘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’ (ibid., 735).

In the course of the debate, Sherman would elaborate his position. Sherman explained that far from being merely formal concerns, he believed that ‘the amendments made in the way proposed by the committee are void’ (Annals, 742). Sherman contended that '[n]o gentleman ever knew an addition and alteration introduced into an existing law, and that any power 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' (ibid., 742). ‘[C]onsider the authorities upon which the two constitutions are to stand’, he urges (ibid.). He reasons, ‘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?’ (ibid.). Sherman asserts, ‘for by the present constitution, we, nor all the Legislatures in the Union together, do not possess the power of repealing it’ (ibid.). Although, some argued that for ease of understanding, the amendments should be incorporated into the body, Sherman contended that the amendments proposed by the Committee of Eleven were but a declaration of rights—‘the people are secure in them, whether we declare them or not’ and the governmental structure established in the original text already protected against one branch from encroaching upon the powers of the others. Thus, the proposed amendments ‘would not lessen the force of any article in the constitution’ (ibid.). Therefore, contrary to the arguments of proponents of incorporating the amendments into the text, there would be no difficulty in comprehending the amendments if they were set out in supplement (ibid., 743). Thus, he argues that the benefit of incorporating the amendments into the text is slight, but, on the other hand, may serve to undermine the authority of the whole Constitution: ‘The gentlemen who oppose the motion say we contend for matter of form; they think nothing more. Now we say we contend for substance, and therefore cannot agree to amendments in this way’ (ibid., 744).

Similar sentiments were repeatedly expressed by others who joined the debate opposing the Committee’s method of incorporating the amendments. Samuel Livermore of New Hampshire asserts that Congress had ‘no right…to alter a clause, any otherwise than by a new proposition…. [I]t 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…' (Annals, 737). Livermore pointed out the logical loop one would enter were Congress to attempt to repeal the very source of its power to act at all (ibid.). Indeed, Livermore saw the potential delegitimization of all Congressional acts taken under the original Constitution, assuming that the original Constitution would be suspended from the time of the amended text’s adoption by Congress until the time it would be ratified by the states (ibid., 736-37). John Laurance of New York would echo these grave concerns (ibid., 740).

While Livermore allowed that the proposed method may be proper for drafting a new instrument, he would not allow that such a method was appropriate for a law already passed (Annals, 738). Yet, later in the debate he placed the Constitution on a separate, higher plane, unlike regular legislation, arguing ‘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’ (ibid., 741).

Michael Jenifer Stone of Maryland argued that any steps in altering the Constitution should proceed with transparency unless those that signed the original be made out to have ‘signed an instrument which they never had in contemplation’ (Annals, 737). He urged that incorporating the proposed amendments into the body of the text would be to say that the Constitution adopted in Philadelphia ‘was defective’ (ibid., 738). The method proposed was, in effect, ‘to repeal the old and substitute a new one in its place’ (ibid.). Due to the precedential nature of the circumstances, Congress should proceed with caution, leaving the original text intact: ‘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’ (ibid.). Furthermore, ‘we have no authority to repeal the whole constitution’ as the Constitution only permitted Congress to propose amendments (ibid.). As he stated later in the debate, ‘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’ (ibid., 739).

Similarly, James Jackson of Georgia urged that the original Constitution should ‘remain inviolate, and not be patched up, from time to time…’ (Annals, 741). Although he, like those discussed, believed that incorporating the amendments into the text would operate as a repeal of the original, he does not seem to hold that that fact alone would intrinsically abrogate the Constitution’s authority. But Jackson urged against incorporating amendments no less strongly. If the original Constitution were repealed and substituted with another, ‘we may go on from year to year, making new ones…we shall render the superstructure the most fluctuating thing imaginable, and the people will never know what the constitution is’ (ibid.).

Jackson rejected the contention that it is necessary for the people to have the amendments situated within the body of the Constitution to understand the system. He drew an illustration from British constitutional history to support his point. The British constitution was not contained in a single document. Magna Charta still stood in its original form, although other rights and liberties had been acquired over time and were embodied in other statutes (Annals, 741-42). Despite the fact that the British constitution was not in a single document, ‘an Englishman would be ashamed to own that, on this account, he could not ascertain his own privileges or the authority of the Government’ (ibid., 742). ‘The constitution of the Union,’ he concludes, ‘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’ (ibid.).

The concerns that these speakers expressed that incorporating the amendments’ text into the Constitution would destroy its authority were founded upon the concept of implied repeal. Implied repeal is a fundamental concept in common-law statutory interpretation that states that when two statutes contradict one another, the later enactment controls and earlier enactments are held to be repealed by implication in so far as they are inconsistent with the later enactment. The U.S. Constitution, it was argued, drew its authority from its enactment by the people themselves in the various state ratifying conventions. The people as source of the authority of the Constitution loomed large in the minds of the Constitution’s proponents, even at the Philadelphia Convention that drafted the Constitution, where significant discussions about the proper mode of ratification occurred (see M. Farrand (ed.), The Records of the Federal Convention of 1787 (New Haven, London, & Oxford, 1911), vol. II, p. 88-94, available at https://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-2). Although the people ratified the original Constitution in the popular conventions, Article V’s mode of amendment provided that Congress could propose amendments that would become part of the Constitution upon ratification by three-fourths of the state legislatures. Therefore, incorporating amendments into the text of the Constitution could be seen as submitting an essentially new Constitutional text. Ratification of the amended text could operate to repeal by implication the Constitution drafted at Philadelphia and supplant it with another. When viewed this way, it follows that this process would vest authority in the states as corporate entities rather than in the body of the people of the United States.

Thus, Sherman’s declaration that those of his view ‘cannot agree to amendments in this way,’ and the arguments rejecting any notion that Congress could repeal the Constitution reflect the fundamental importance that this question of ‘form’ had to those advocating amending the Constitution by supplement (Annals, 745). Incorporation of the amendments’ texts into the original Constitution was, or could be seen as, a profound shifting of the essential basis upon which the Constitution commanded legitimacy and authority. For those, like Sherman, who strongly advocated the system contained in the Constitution as drafted, the prospect of amendments represented a potential existential threat to that system. In this debate, one sees that they perceived this threat as coming not only from discrete proposals that would reconfigure that system in practical terms, but also from potential perceptions of that system’s authority, whether of a popular or legal nature.

Associated event

Sherman's Amendment to the First Proposition was proposed on 13 August 1789

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