Article V

The Development of Article V, U.S. Constitution, at the Federal Convention of 1787

By Publius Huldah

Hyperlinks to Madison’s Journal of the Federal Convention of 1787 are provided.  Use them!  See for yourself what went on at the Convention!

After July 4, 1776, we operated under our first Constitution, The Articles of Confederation.  Article XIII required approval of amendments by the Continental Congress and by every State.

Summary of the Dispute at the Convention of 1787

The dispute at the convention of 1787 was whether Congress (under the second Constitution then being drafted by the Delegates) should have any power over amendments:

• Mr. Randolph & George Mason wanted The People to be able to make amendments without the assent of Congress (May 29, June 11) and in a manner which did not depend on Congress (Sep 15, 1787).
• Several questioned the propriety of making Congress’ assent to amendments unnecessary (June 11, 1787).
• Gov. Morris, Hamilton, & Madison thought Congress ought to be able to propose amendments (Aug 30, Sep 10, 1787).

Some delegates spoke of a “convention” in connection with amendments:

• With Congress calling the convention (Aug 6) whenever Congress pleased (Aug 30, 1787).
• Mr. Gerry worried about States obtaining a convention and binding the Union to innovations which subverted State Constitutions (Sep 10, 1787).
• Mr. Hamilton said Congress should have power to call a convention to propose amendments to correct defects which would probably appear in the Constitution (Sep 10, 1787).
• Mr. Madison remarked on the vagueness of the terms, “call a Convention for the purpose”: “How was a Convention to be formed? – by what rule decide? – what the force of its acts?” (Sep 10); and “difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided” (Sep 15, 1787).

The final version of Article V provides two methods of proposing amendments to the Constitution:  Congress either:

• Proposes the amendments; or
• “Calls” a convention when the Legislatures of 2/3 of the States apply for it.  Since Art. I, §8, last clause, delegates to Congress the power to make the laws to carry out its power to “call” the convention, Congress has power to organize and set up the convention and determine how delegates will be chosen and even who they are.
  

So the dispute was won by those who thought Congress should be involved in the amendment process.

   From James Madison’s Journal (Farrand’s edition) at the Library of Congress

May 29, 1787 (p 20, vol. 1): The work of the Convention begins.  Mr. Randolph presented 15 resolutions to “open the great subject of their mission”.  Randolph’s 13^th resolution was:

“Resolved, that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto” (p 22).

 

June 5, 1787 (p 121, vol. 1): Randolph’s 13^th resolution is taken up:

• Mr. Pinckney “doubted the propriety or necessity of it.” (p 121)

• Mr. Gerry favored it, pointing out that the “novelty and difficulty” of what they were doing required periodical revision; that the prospect of such a revision would give intermediate stability to the government; etc. (p 122)

The matter was postponed for further consideration. (p 122)

 

June 11, 1787 (p 202, vol. 1): Randolph’s 13^th resolution for amending the national Constitution, hereafter, without consent of the national Legislature, was considered:

• Several members did not see the necessity of the Resolution, nor the propriety of making the consent of the National Legislature unnecessary. (p 202)
  

• Geo. Mason said the Constitution now being formed “will certainly be defective”, as the Articles of Confederation have been found to be.  “Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.  It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.”  Mr. Randolph agreed. (p 202-203)

The words, “without requiring the consent of the National Legislature,” were postponed.  The other provision in the clause passed unanimously. (p 203)

 

June 13, 1787  (p 231, vol.1): The Committee of the Whole presented a revised set of resolutions.  Randolph’s 13^th resolution was renumbered as the 17^th resolution, and now read:

“Resolved that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary.”

 

July 23, 1787 (p 87, vol. 2):  The 17^th resolution was agreed to unanimously.

 

August 6, 1787 (p 188, vol. 2): The Report of the Committee of Detail presented a draft Constitution.  Article 19 read:

“On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose”.

 

August 30, 1787 (p 467, vol. 2):  Article 19 was taken up.  Mr. Gov. Morris suggested that “the Legislature should be left at liberty to call a Convention whenever they pleased”.  The Article was agreed to unanimously.

 

September 10, 1787 (p 557, vol. 2):  Mr. Gerry moved to reconsider Art.19.

• Mr. Gerry said the Constitution they were writing would be paramount to the State Constitutions.  It follows from Art.19 that two-thirds of the States “may obtain a convention, a majority of which can bind the Union to innovations that may subvert the State Constitutions altogether”.

• Mr. Hamilton seconded the motion for reconsideration, but for a different reason than Mr. Gerry.  An easy mode should be established for supplying defects which will probably appear in the new system.  The mode proposed was not adequate.  State Legislatures will apply for amendments to increase their own powers.  The National Legislature will be the first to perceive, and will be most sensible to, the necessity of amendments; and ought also to be empowered, whenever two-thirds of each branch [of the Congress] should concur, to call a Convention.  There is no danger in giving this power, as the people would finally decide. (p 558)

• Mr. Madison remarked on the vagueness of the terms, “call a Convention for the purpose”, as sufficient reason for reconsidering the article.  “How was a Convention to be formed? – by what rule decide? – what the force of its acts?” (p 558)
  

On the motion of Mr. Gerry to reconsider:  9 States “Yes”; 1 State “No”; and 1 State divided.

Mr. Sherman moved to add the following to Article 19:

“or the Legislature [Congress] may propose amendments to the several States for their approbation; but no amendments shall be binding until consented to by the several States.”

Mr. Wilson moved to insert: “three-fourths of” before “the several States”; this was agreed to unanimously.

Mr. Madison then moved  (p 559) to postpone consideration of the above amended proposition, in order to take up the following proposed revision:

“The Legislature of the United States, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three-fourths, at least, of the Legislatures of the several States, or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the United States.”

Mr. Hamilton seconded Mr. Madison’s motion.

Mr. Rutledge could not agree to give a power by which the articles relating to slaves might be altered by non-slave States.  So this was added to Mr. Madison’s proposal:

“provided that no amendments, which may be made prior to the year 1808 shall in any manner affect the fourth and fifth sections of the seventh article.”

On Madison’s proposed revision, as amended by Rutledge: 9 States “Yes”; 1 State “No”; and 1 State divided.

 

September 12, 1787  (p 602, vol. 2): The Committee of Revision presented a new draft of the Constitution.  Article 19 was renumbered as Article V:

  “The Congress, whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution; which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of the Legislatures of the several States, or by conventions in three-fourths thereof, as the one of the other mode of ratification may be proposed by the Congress:  Provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the __ and __ sections of the ___ article”

 

September 15, 1787 (p 629, vol. 2):  Article V was taken up.

• Mr. Sherman expressed fears that three-fourths of the States might be brought to do things fatal to other States; and wanted more protection for slave States (p 629).

• Geo. Mason said the plan of amending the Constitution was “exceptionable and dangerous”.  As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind, would ever be obtained by the people, if the government should become oppressive.

Mr. Gov. Morris and Mr. Gerry moved to amend the Article so as to require a Convention on application of two-thirds of the States.

• Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States, as to call a Convention on the like application.  He saw no objection, however, against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided.

The motion of Gov. Morris and Mr. Gerry was agreed to unanimously (p 630).

On the question to agree to the Constitution, as amended, all the States voted “yes”.  The Constitution was ordered to be engrossed, and the house adjourned (p 633).

 

September 17, 1787 (p 648, vol. 2):  The Constitution was signed, as finally amended.  Article V reads:

   “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 1808, 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.”

 (p 648-649).
All members of the Convention signed except for Mr. Randolph, Mr.  George Mason, and Mr. Gerry

Revised Dec. 2013; Dec. 2014; April 2015; April 2016.