Article 5

Document 2

Records of the Federal Convention

[1:22; Madison, 29 May]

13. Resd. 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.

[1:121; Madison, 5 June]

propos: 13. "that provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the Natl. Legislature." being taken up.

Mr. Pinkney doubted the propriety or necessity of it.

Mr. Gerry favored it. The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Govt. Nothing had yet happened in the States where this provision existed to proves its impropriety.--The Proposition was postponed for further consideration: the votes being. Mas: Con. N. Y. Pa. Del. Ma. N. C.--ay

Virga. S. C. Geo: no

[1:202; Madison, 11 June]

Resolution 13. for amending the national Constitution hereafter without consent of Natl. Legislature being considered, several members did not see the necessity of the Resolution at all, nor the propriety of making the consent of the Natl. Legisl. unnecessary.

Col. Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial 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. The opportunity for such an abuse, may be the fault of the Constitution calling for amendmt.

Mr. Randolph enforced these arguments.

The words, "without requiring the consent of the Natl. Legislature" were postponed. The other provision in the clause passed nem. con.

[2:159; Committee of Detail, VIII]

This Constitution ought to be amended whenever such Amendment shall become necessary; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose.

[2:188; Madison, 6 Aug.]

XIX

On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, [Volume 4, Page 577] the Legislature of the United States shall call a Convention for that purpose.

[2:461; Journal, 30 Aug.]

On the question to agree to the 19 article as reported

it passed in the affirmative

[2:461; Madison, 30 Aug.]

Mr. Govr. Morris suggested that the Legislature should be left at liberty to call a Convention, whenever they please.

The art: was agreed to nem: con:

[2:557; Madison, 10 Sept.]

Mr Gerry moved to reconsider art XIX. viz, "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 U. S. shall call a Convention for that purpose." (see Aug. 6)

This Constitution he said is to be paramount to the State Constitutions. It follows, hence, from this article 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. He asked whether this was a situation proper to be run into--

Mr. Hamilton 2ded. the motion, but he said with a different view from Mr. Gerry--He did not object to the consequences stated by Mr. Gerry--There was no greater evil in subjecting the people of the U. S. to the major voice than the people of a particular State--It had been wished by many and was much to have been desired that an easier mode for introducing amendments had been provided by the articles of Confederation. It was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new System. The mode proposed was not adequate. The State Legislatures will not apply for alterations but with a view 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 should concur to call a Convention--There could be no danger in giving this power, as the people would finally decide in the case.

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?

On the motion of Mr. Gerry to reconsider

N. H. divd. Mas. ay--Ct. ay. N. J.--no. Pa ay. Del. ay. Md. ay. Va. ay. N--C. ay. S. C. ay. Geo. ay. [Ayes--9; noes--1; divided--1.]

Mr. Sherman moved to add to the article "or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States"

Mr. Gerry 2ded. the motion

Mr. Wilson moved to insert "two thirds of" before the words "several States"--on which amendment to the motion of Mr. Sherman

N. H. ay. Mas. no Ct. no. N. J. no Pa. ay--Del--ay Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes--5; noes--6.]

Mr. Wilson then moved to insert "three fourths of" before "the several Sts" which was agreed to nem: con:

Mr. Madison moved to postpone the consideration of the amended proposition in order to take up the following,

"The Legislature of the U--S--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 U. S:"

Mr. Hamilton 2ded. the motion.

Mr. Rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition: "provided that no amendments which may be made prior to the year 1808. shall in any manner affect the 4 & 5 sections of the VII article"--The postponement being agreed to,

On the question On the proposition of Mr. Madison & Mr. Hamilton as amended

N. H. divd. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va ay. N. C. ay S. C. ay. Geo. ay. [Ayes--9; noes--1; divided--1.]

[2:629; Madison, 15 Sept.]

Art--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 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 1 & 4 clauses in the 9. section of article I."

Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.

Col: Mason thought the plan of amending the Constitution exceptionable & 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, as he verily believed would be the case.

Mr. Govr. Morris & Mr. Gerry moved to amend the article [Volume 4, Page 578] so as to require a Convention on application of 2/3 of the Sts

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 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 Mr. Govr Morris and Mr. Gerry was agreed to nem: con (see: the first part of the article as finally past)

Mr Sherman moved to strike out of art. V. after "legislatures" the words "of three fourths" and so after the word "Conventions" leaving future Conventions to act in this matter, like the present Conventions according to circumstances.

On this motion

N--H--divd. Mas--ay--Ct ay. N--J. ay--Pa no. Del--no. Md no. Va no. N. C. no. S--C. no. Geo--no. [Ayes--3; noes--7; divided--1.]

Mr Gerry moved to strike out the words "or by Conventions in three fourths thereof"

On this motion

N--H--no. Mas. no--Ct. ay. N--J. no. Pa no--Del--no. Md no. Va. no. N--C. no S. C. no--Geo--no. [Ayes--1; noes--10.]

M--Sherman moved according to his idea above expressed to annex to the end of the article a further proviso "that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate",

Mr. Madison. Begin with these special provisos, and every State will insist on them, for their boundaries, exports &c.

On the motion of Mr. Sherman

N. H--no. Mas. no. Ct ay. N. J. ay--Pa no. Del--ay. Md. no. Va. no N. C. no. S. C. no. Geo. no. [Ayes--3; noes--8.]

Mr. Sherman then moved to strike out art V altogether

Mr Brearley 2ded. the motion, on which

N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. divd. Md. no. Va. no. N. C. no. S. C. no. Geo. no [Ayes--2; noes--8; divided--1.]

Mr. Govr Morris moved to annex a further proviso--"that no State, without its consent shall be deprived of its equal suffrage in the Senate"

This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.

The Founders' Constitution
Volume 4, Article 5, Document 2
http://press-pubs.uchicago.edu/founders/documents/a5s2.html
The University of Chicago Press

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.