Mr. Lee moved that the House should resolve itself into a committee of the whole on the state of the Union, to take into consideration the report of the committee on amendments to the Constitution.
The immediate adoption of this motion was advocated by Mr. MADISON, Mr. PAGE, and Mr. HARTLEY—and opposed by Mr. SEDGWICK, Mr. SMITH (S. C.), Mr. GERRY, Mr. LAURANCE, and Mr. SHERMAN—The latter gentleman generally observed, That there was a great variety of business before the house, which it is of the greatest importance should precede the consideration of all other—that it appears absurd to make alteration in a form of government, before it has an operative existence—that it is of the first consequence to compleat the judiciary bill—that without this and several other bills now pending in the house, we cannot carry one of the revenue laws into execution—not a breach of the laws of the United States can be punished—not a vessel can be seized—The discussion of the subject at this moment will obstruct the wheels of government, and throw every thing into confusion—mean time the United States are without law, and have no authority to punish a single crime. It was further said, that few, if any of the State assemblies are in session, and therefore it will unnecessarily consume the present time, which is so precious—that the people reposing full confidence in the justice, and wisdom of the House that this subject would have seasonable and due attention paid to it, are as anxious and solicitous to see the government in operation, as they are about amendments.
The Speakers against the motion severally expressed themselves in favor of taking up the subject as soon as the judicial, executive, and revenue departments were so far completed that it could with propriety be said that we had a government.
In support of the motion it was observed, That since the subject had first been introduced, so much time has elapsed, that if it is not now taken up, the people will be led to suppose, that it is the intention of Congress never to do any thing in the business—that the people are extremely anxious upon the subject—and nothing short of a conviction that those rights, which they conceive to be in danger as the Constitution now stands, will be placed in a state of greater security will quiet their apprehensions—that the number of those in favor amendments consisted of a large and respectable proportion of the citizens of the States—that the peace and tranquility of the Union depend upon a proper attention to their just expectations—that if those who are anxious for amendments, had been added to those who openly opposed the Constitution, it would have probably met a quite different fate—that except these amendments are made, the government will want the confidence of the people, and that energy which is necessary to its existence—that the same reasons for a postponement have repeatedly been assigned, and there is no prospect that a more convenient opportunity will offer. The question being put on the motion of Mr. LEE, it passed in the affirmative. The House accordingly formed into a committee of the whole.
Mr. BOUDINOT in the chair.
The report of the committee was then read—the first article of which is in these words, 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."
I am opposed to this mode of making amendments to the Constitution—and for striking out from the report of the committee the first article entirely I conceive that we cannot incorporate these amendments in the body of the Constitution. It would be mixing brass, iron, and clay—it would be as absurd as to incorporate an act in addition to an act, in the body of the act proposed to be amended or explained thereby—which I believe was never heard of before. I conceive that we have no right to do this, as the Constitution is an act of the people, and ought to remain entire—whereas the amendments will be the act of the several legislatures.3
Mr. Sherman then read a proposition which he moved should be substituted in place of the article in the report.
This being seconded, brought on an interesting debate—Whether the amendments should be incorporated in the body of the Constitution, or be made a distinct supplementary act.
Mr. MADISON supported the former, and said, that he did not coincide with the gentleman from Connecticut: I conceive, said he, that there is a propriety in incorporating the amendments in the Constitution itself in the several places to which they belong—the system will in that case be uniform and entire—nor is this an uncommon thing to be done—It is true that acts are generally amended by additional acts; but this I believe may be imputed rather to indolence—this however is not always the case, for where there is a taste for political and legislative propriety it is otherwise—
If these amendments are added to the Constitution by way of supplement, it will embarrass the people—It will be difficult for them to determine to what parts of the system they particularly refer—and any rate will create unfavorable comparisons between the two parts of the instrument. If these amendments are adopted agreeably to the plan proposed, they will stand upon as good a foundation as the other parts of the Constitution—and be sanctioned by equally as good authority. I am not however very solicitous about the mode, so long as the business is fully attended to.4
Mr. SMITH, (S. C.)agreed with Mr. Madison—and read that clause in the Constitution which provides that alterations and amendments when agreed to, shall become part of the Constitution—from whence he inferred, that it was evidently the design of the framers of the system, that they should be incorporated—nor is the house at liberty to adopt any other mode. Mr. Smith cited the instance of South-Carolina, who instead of making acts in addition to acts, which had been found extremely perplexing, repealed their laws generally in order to form a more simple and unembarrassing code.
Mr. LIVERMORE supported the motion of Mr. Sherman—He adverted to the custom and usage of the British legislature, and of the several State Assemblies, in forming laws and additional acts. We have no right, he observed, to make any alterations or interlopations in the instrument—it will be attended with difficulties in some future day.
Mr. VINING observed, that he thought the mode was not essential—he therefore adverted to the expediency of the motion—adding amendments, said he, will be attended with a variety of inconveniencies—it will distort the system—it will appear like a letter, which, carelessly wrote in haste, requires a postscript much longer than the original composition—This motion is founded upon the custom of amending acts by additional acts, to explain and amend preceding acts, a custom, which involves endless perplexities, and has nothing in reason to recommend it. I hope Sir, the motion will not obtain.
Mr. CLYMER advocated the motion: I wish Sir that the Constitution may forever remain in its original form, as a monument of the wisdom and patriotism of those who framed it.
Mr. STONE was in favor of Mr. Sherman's motion.
If Sir, said he, the amendments are incorporated in the instrument, it will assert that which is not true—for this Constitution has been signed by the delegates from the several States as a true instrument—and therefore in this case we must go further, and say that a constitution made at such a time was defective, and GEORGE WASHINGTON, and those other worthy characters who signed this instrument, cannot be said to have signed the Constitution.6
According to the observation of the gentleman from South-Carolina, respecting repealing laws to make a complete act, we must repeal the Constitution in order to make a new one—but will any gentleman say that this legislature has authority to do this? To incorporate these amendments, the Constitution must however be repealed in part, at least—The moment we prepare ourselves to do this, there is an end of the Constitution, and to the authority under which we act. Mr. Stone then replied particularly to the inference drawn by Mr. Smith from the passage which he had quoted from the Constitution, and observed, that the words could not imply any thing more than this, that such amendments, when adopted, agreeably to the mode pointed out, would be equally binding with the other parts of the system to which they do not specially refer.
Mr. GERRY enquired whether the mode could make any possible difference in the validity of the system, provided the sanction is the same—he conceived it could not.
The constitution in my opinion, said he, has provided that amendments should be incorporated—the words are express, that they shall become "part of this constitution." The gentleman, (Mr. Stone) says we shall lose the names of the worthy gentlemen who subscribed the constitution—but I would ask, whether the names would be of any consequence, except the constitution had been ratified by the several States? or will the system be of no effect since it is ratified, if the names were now erased? If we adopt the mode proposed, we shall in all probability go on to make supplements to supplements, and thus involve the system in a maze of doubts and perplexities. It appears to me, that in order that the citizens of the United States may know what the constitution is, it is necessary that it be comprized in one uniform, entire system. If the amendments are incorporated, the people will have one constitution; but if they are added by way of supplement, they will have more than one: And if in the original system there should any clauses be found, which are inconsistent with the added amendments, the government will be compounded opposite principles, both in force at the same time.7
Upon the idea of gentlemen as to the sacredness of the original system, amendments are made upon their plan, they will be considered in a point of light inferior to the original; in this view amendments are of no consequence, and had better be omitted. This would tend to defeat the salutary purposes amendments altogether, by derogating from their dignity and authority.
Mr. LAURANCE was in favor of the motion made by Mr. Sherman—he said, it appeared to him impossible to incorporate the amendments in the constitution without involving very great absurdities in the supposition if they should be engrafted in the body of the constitution, it will make it speak a language different from what it originally did— What will become of the laws enacted under the instrument as it originally stood? Will they not be vitiated thereby?8
The ratifications of the several States had respect to the original system. It is true that a majority of them have proposed amendments, but this does not imply a necessity of altering the original, so as to make it a different system from that which was ratified.9
The mode proposed by the motion is agreeable to custom—it is the least liable to objection, and appears to me safe and proper.
Mr. BENSON observed, that this question was agitated in the select committee, and the result is contained in the report now under consideration—It should be remembered, that the ratifications of several of the States enjoin the alterations and amendments in this way; they propose that some words should be struck out, and the sentences altered—I do not conceive that incorporating the amendments can affect the validity of the original constitution that will remain where it is, in the archives of Congress unaltered with all the names ofthe original subscribers. The amendments are provided for in that instrument, and the compleating those amendments is compleating the original system the records of the legislature will inform how this was done; and for my part, I can see no difficulty in proceeding agreeable to the report of the committee.
Mr. PAGE said that he supposed that the committee of the whole is now acting upon the constitution as upon a bill—and they have a right, said he, to take up the subject paragraph by paragraph.
I am opposed to the amendment of the preamble of the constitution as proposed by the committee, as well as to the motion of the gentleman from Connecticut—I could wish therefore that we may not consume time in settling the meer form conducting the business—but proceed, after rejecting the first amendment, to consider those that are subsequent in the report.
Mr. LIVERMORE replied to Mr. Page—he said, that with respect to the constitution, the committee stood upon quite different grounds from what they did when discussing bill, and he contended that it is not in the power either of the legislature of the United States, or of all the legislatures upon the continent to alter the constitution, unless they were specially empowered by the people to do it.
Mr. JACKSON advocated the motion of Mr. Sherman—he said,
if we repeal this constitution we shall perhaps the next year have to make another—and in that way the people will never be able to know whether they have a permanent constitution or not. The constitution in my opinion ought to remain sacred and inviolate—10
I will refer to the constitution of England—Magna Charta has remained as it was received from King John to the present day and the Bill of Rights the same; and although the rights of the people in several respects have been more clearly ascertained and defined, those charters remain entire: A constitutional privilege has lately been established in the independency of the Judges, but no alteration in the constitution itself was thought proper. All the amendments are supplementary—the sacred deposit of English liberty remains untouched—their great charter remains unaltered, though defects have been supplied and additions made. The constitution of the United States has been made by the people; it is their own act, and they have a right to it. I hope we shall not do any thing to violate or mutilate it.
I therefore heartily join in the motion for striking out the words and adopting the mode proposed by the gentleman from Connecticut.
Several of the gentlemen spoke repeatedly upon the subject, but time will not admit of our enlarging further. The question on Mr. Sherman's motion being taken, it passed in the negative.
A doubt was then raised, whether it was necessary that the article in the constitution which requires that two thirds of the legislature should recommend amendments, should be attended to by the committee—this occasioned debate—an appeal was made to the chairman, who determined that the business while before the committee, should be transacted in the usual manner by a majority—an appeal was made from this judgment to the house, and on the question, being put, whether the chairman's decision was in order, it passed in the affirmative.