Mr. LEE moved that the house should resolve itself into a committee of the whole in order to take up the report of the special committee on the subject amendments to the constitution. This motion was opposed by a number of members. It was objected that the period proposed for adjournment was approaching; that many subjects of present and pressing importance were still before the house undecided, that the government was not yet organized, particularly the judiciary had not been passed and thereby the laws which had been already enacted were without a sanction, and destitute of force; that the establishment of the judicial system as a part of the government itself and to give effect to the revenue laws ought to precede all other matters of lengthy discussion. It was a subject which would require considerable time and a very deliberate attention; it was contended that one or the other of these great objects must be sacrificed for the present. That the present session would not be lengthy enough to do justice to both, and to transact such other business as was of immediate moment, such as the establishment of a land-office, &c. The disadvantage and absurdity of postponing the judicial was dwelt upon in a particular manner and set in its full light.
Mr. MADISON, on the other hand contended warmly for taking up the subject amendments as of the first consequence. He said it had been deferred some time, tho' brought forward at an early stage; it ought to have been one of the first objects of the legislature and he was convinced that if it passed over this session the people would be disappointed and alarmed. It was an indispensable duty due to the people of the United States that something should be done early to quiet their apprehensions.
The question on the motion of Mr. LEE being put was carried in the affirmative.
The house then went into a committee.
Mr. BOUDINOT in the chair—
The clerk then read the amendments proposed by the committee; the first of which is the following, viz. 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 rose and moved that this clause be struck out, and that a declaration similar in substance which he read in his place, and preceeding the amendment to be made, be annexed to the constitution; he grounded his motion on the propriety of making the amendments supplemental to the constitution and not incorporating them in the body of the instrument; he said it was his wish not to alter by authority of Congress, the original instrument itself which was made by authority of the people; that this house had no right, and that it would be a measure full of difficulties; there was no right, because any alterations of the individual articles of the constitution was a repeal of the constitution; that the house had no possible power of repealing or if they had, the authority on which the house acted, from that moment ceased; and they had no right to make a new constitution or to do any act whatsoever The original form of the constitution ought to remain inviolate and all amendments which the Congress were authorised to make were only legislative acts which ought to be detached from the constitution and be supplementary to it.
Mr. SHERMAN was supported by Mr. STONE, Mr. LIVERMORE, Mr. LAURANCE, and Mr. JACKSON, and opposed by Mr. MADISON, Mr. SMITH (S. C.), Mr. PAGE, Mr. GERRY, and several others. A long and animated debate ensued.
For the motion it was contended, that an alteration would be a destruction of the instrument; that the original constitution ordained and signed by its framers was lodged in the archives of Congress, and was the sacred constitution of the Union, that any alterations or additions, in the body of the work, would involve an absurdity; since it would render the signature of those characters false in fact, whose names were the evidence of the instrument; they would be made to subscribe a constitution they never made. It was wrong that the amendments should wear the complexion of being derived originally from the people: They were from another power, and this ought to appear. It was said that the mode of inserting amendments in the body of a law by way of amendment was unprecedented and inconvenient; that the universal usage was, when deficiencies were to be supplied or alterations or additions made, to do it by supplementary acts; and that when a contrary mode had been adopted, it was always considered that the amendments then incorporated were a total repeal of the first act; there had been instances of several obscure laws, for the convenience of the people, being condensed into one; but in all those cases the old laws were done away and a new one formed from them. This principle was inadmissible with respect to the constitution, because it was a sacred act which could never be annulled, but by the power which gave it birth; many other arguments were suggested.
Mr. JACKSON said that we had precedents for the measure proposed in constitutions the most sacred as well as in laws: Magna Charta remained inviolate as it came from King John. The amendments which subsequent measures had produced were all supplementary; and did not touch the form of that sacred deposit of English liberty. The privileges of the people had been secured by a series of distinct charters. But the great charter had never been altered, though defects had been supplied, and additions made. The constitution of England was the same; but that constitution consisted of many independent parts, which had never been blended together.
Against the motion it was argued, that the simplicity of the constitution would be destroyed by such a supplemental act. Other additions and emendations might take place in course of years.
There might be amendments to the supplement, and the constitution would become complex and obscure and would consist of a long train of laws which might fill a volume. The people would not know where to find it.
It was observed that as for the difficulty stated respecting the names of the subscribers to the constitution in the federal convention. They were, tho' respectable in themselves, of no consequence to the validity of the instrument which derived its force from the ratifications of the several states. It was shewn that many of the states which had ratified the constitution with the desire amendments had used a language which indicated their idea of the nature of this business.2
They expressed that amendments ought to be inserted and introduced—Clearly implying that any supplementary laws were improper. Many other arguments were adduced to prove that the principles of the gentlemen went to prove that the amendments should not be considered parts of the constitution, for if the constitution was a distinct instrument not to be altered or violated, then the amendments were not parts, and would not be considered as possessing equal authority. The amendments ought to be incorporated and then the people would have one constitution, otherwise they would have more than one. If in the original instrument there were any clauses which were inconsistent with the amendments, the government would be a government of opposite principles, both in force—Or if the principle of the amendments should be considered of inferior authority as it must be upon the gentlemen's idea of the sacredness of the original, then amendments themselves were of no consequence and had better not be established. If the idea prevailed that the first constitution was of superior authority to the amendments, then certainly a clause in the amendments in alteration of one in the constitution would have no force at all. This was a direct mode therefore to defeat the salutary purpose amendments by derogating from their dignity and authority.
The reasoning on both sides was much more copious and was very ingenious and interesting. The question at length was carried in the negative.
A doubt being suggested by a member, whether, as the constitution required recommendation amendments to be made by two thirds of each house it was not also necessary that two thirds of the committee of the whole House should agree in reporting amendments.
This question of order being referred to the chair was determined in the negative, viz. that a majority of the committee was sufficient in order to report amendments to the house. An appeal was then made from the opinion of the chair to the house, and the decision was confirmed.