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THE CONSENT OF THE GOVERNED: CONSTITUTIONAL
AMENDMENT OUTSIDE ARTICLE V
Akhil Reed Amar*
We hold these truths to be self-evident, that all men are cre- ated equal, that they are endowed by their Creator with certain unalienable Rights.... That...^ Governments...^ deriv[e]^ their just powers from the consent of^ the^ governed.^ That^ whenever any Form of Government becomes destructive^ of^ [its]^ ends,^ it^ is the right of the People to alter or abolish it, and to^ institute new Government, laying its foundations on such principles and or- ganizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness.^1 Ringing words-but words that ring hollow today. Mark Twain once defined a literary "classic" as a work "which people praise and don't read." 2 Jefferson's majestic proclamation of self-evident truths has reached an even more exalted status: words which people praise and do read, but don't understand. For if understood, these words, and their evolving meaning between 1776 and 1789, call for a fundamental rethink- ing of conventional understandings of the U.S. Constitution. Concretely, the U.S. Constitution is a far more majoritarian and populist document than we have generally thought; and We the People of the United States have a legal right to alter our Government-to change our Constitu- tion-via a majoritarian and populist mechanism akin to a national refer- endum, even though that mechanism is not explicitly specified in Article V. Or so I have argued elsewhere. I first presented my musings on the topic in the shadow ofJefferson's beloved Monticello, at^ the^ University^ of Virginia that he founded. My conclusion troubled me-I suspected my audience might well wonder if someone had been messing with the drinking water in New Haven-so I invited my audience to show me where I had gone wrong. Many posed thoughtful questions,^ but^ none that went to the heart of the thing. When I sketched my preliminary
- Southmayd Professor, Yale Law School. This essay derives from the Southmayd Inaugural Lecture, delivered^ at^ Yale^ Law School on November 30, 1993. Generous research support was furnished by Columbia Law School, where I served as Samuel Rubin Visiting Professor of Law during the summer and fall of 1993. For comments on early drafts, I am grateful to Bruce Ackerman, Vik Amar, John Harrison, Matt Herrington, Neal Katyal,^ Mike^ Klarman,^ Sandy^ Levinson,^ Henry Monaghan, Gerry Neuman, Vinita Parkash, Mike Paulsen, Rick Pildes, Larry Sager, Ron Wright, and the members of the Columbia Faculty Workshop and the NYU Constitutional Theory Colloquium. This essay is dedicated to my mother.
- The Declaration of Independence para. 2 (U.S. 1776).
- 1 Mark Twain, Following the Equator:^ A^ Journey^ Around the^ World^241 (New York, Harper & Row 1897).
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analysis in print-in the Fall 1988 University^ of^ Chicago^ Law^ Review-I^ be- gan by acknowledging that^ my^ conclusions^ "may^ at^ first^ seem^ fanciful" and that I would probably need more than the "brief space" of that article to persuade the legal community "beyond all doubt."^3 Near the end, I noted that my analysis of Article V "may well scare [the reader.] To be honest, it scares me a little too."^4 Once^ again,^ I^ welcomed^ and^ waited^ for refutation. In the years since then, I have read more widely on the topic and had countless conversations with students, colleagues, and critics. And today, I must say, I am more confident about my Article V conjecture than I was in 1988. Of course it remains quite possible that I have simply not done my sums straight. And so I now propose to revisit and revise the basic "proof' of my "conjecture"-with apologies to Fermat, let's call it my "First Theorem"-and to ask once again: what's wrong with this picture? In Part I of what follows, I describe two plausible interpretations of Article V. The conventional reading of Article V sees it as the exclusive mechanism of lawful constitutional amendment, whereas^ a^ popular^ sover- eignty reading insists that Article V establishes only the exclusive mecha- nism of lawful amendment by ordinary Government officials (Congress and state legislatures). To adjudicate between these two plausible interpreta- tions, we must examine the rest of the Constitution. That examination occurs in Part II. I argue that unlike Jefferson's Declaration of 1776, the Constitution was lawful, not revolutionary. Between the Revolution and the Constitution, popular sovereignty principles in America evolved be- yond the Lockean core of the Declaration and established the legal right of the polity to alter or abolish their government at any time and for any reason, by a peaceful and simple majoritarian process. Although various pre-1787 state constitutions featured clauses analogous to Article V that at first seemed to specify the exclusive mode of lawful constitutional change, these Article V analogues were not in fact exclusive; a popular majority retained a legal right to alter or abolish outside these Article V analogues. I argue that Article V itself is likewise nonexclusive, and that majoritarian popular sovereignty principles are clearly a part of the U.S. Constitution in both word and deed, whether one focuses on the very act of ordain- ment and establishment or on the texts of the Preamble and the First, Ninth, and Tenth Amendments. In Part III, I acknowledge and try to refute important objections to this claim.
I. WHAT ARTICLE V DOES NOT SAY AND CANNOT^ Do
My proposition is that We the People of the United States-more specifically, a majority of voters-retain an unenumerated, constitutional right to alter our Government and^ revise^ our^ Constitution^ in^ a^ way^ not
3. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1044 (1988).
- Id. at 1096.
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"the People" to re-Constitute their Government and so do various provi- sions of the U.S. Constitution-the Preamble and the First, Ninth, and Tenth Amendments-that support the alternative reading of Article V. (We shall return to these provisions later.) The conventional view of Article V sees it as implementingJefferson's formulation rather than supplementing it. But this makes hash of Jefferson's language and logic. First, Article V is Government-driven: if exclusive, it gives ordinary Government officials-Congress (^) and state leg- islatures-a monopoly on initiating the process of constitutional change. By contrast, Jefferson's self-evident truth, and the popular sovereignty ideology that emerged from the American Revolution, are People-driven. Popular sovereignty cannot be satisfied by a Government monopoly on amendment, for the Government might simply block any constitutional change that limits Government's power, even if strongly desired by the People. (Elections for Government officials do not solve this problem; in the 1780s, not all members of the polity were even eligible (^) to vote for, say, state senators-who in turn helped elect U.S. Senators; but all members of the polity-"freemen," in 1787-were by definition part of "the Peo- ple" eligible to participate in People-driven constitutional change.) 8 Sec- ond, and related, Article V is minoritarian. Precisely because ordinary Government is distrusted, it may not amend the Constitution without amassing an extraordinary bloc of Government officials. 9 A mere minor- ity of officials may often stymie constitutional change. But, as we shall see below, Jefferson's self-evident truth and the spirit of popular (^) sovereignty it unleashed were universally understood in 1787 as majoritarian. A sim- ple majority of the People themselves-members of the polity-had a legal right to alter Government and change Constitutions. If exclusive, Article V betrays this right, for it is child's play to conjure up cases where the obstacle course of Article V would block the amendment path, even if a bona fide majority of American voters enthusiastically supported amendment. It appears, then, that there are two plausible interpretations of the implied exclusivity of Article V: (1) the conventional reading that it enu-
8. For discussions of the special franchise rules in effect when "the People" ratified constitutions, see Samuel B. Harding, Party Struggles Over the First Pennsylvania Constitution, Annual Report of the American Historical Association for the Year 1894, at 371, 371-75 (1895); Wood, supra note 6, at 289; James G. Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 338 & n.235 (1990). For a similar analysis of Reconstruction era conventions, see Michael Les Benedict, A Compromise of Principle 108 (1974). To take a more modern example: even if today's electorate strongly desires legislative term limits, ordinary legislators may simply block any constitutional amendment to that effect. And the electoral check against this kind of self-dealing is quite weak; any district whose voters punish the incumbent by throwing the rascal out will lose legislative seniority and clout vis- i-vis other districts, in a kind of prisoners' dilemma. See Akhil Reed Amar & Vik Amar, President Quayle?, 78 Va. L. Rev. 913, 928-29 (1992). 9. See 2 The Works of James Wilson 509 (Robert G. McCloskey ed., 1967); Amar, supra note 3, at 1093-94 & n.180.
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merates the only mode(s) by which the Constitution^ may^ be^ amended, and (2) an alternative reading that it^ enumerates^ the^ only^ mode(s)^ by which ordinary Government may amend the Constitution. How shall we decide which is the better^ reading?^ By^ widening^ our^ focus^ beyond^ the narrow text of Article V^ to^ consider^ other^ parts^ of^ the^ original Constitution, various glossing provisions of the federal Bill^ of^ Rights,^ and various Article V analogues in state constitutions.
Widening our frame will also help cure an underlying^ anxiety^ that,^ I think, may wrongly tilt^ lawyers^ towards^ the^ conventional^ reading^ of Article V exclusivity. The^ Constitution^ is^ supreme^ law,^ and^ the^ legal^ rules it establishes for its own amendment^ are^ of^ unsurpassed^ importance,^ for these rules define the conditions under^ which^ all^ other^ constitutional norms may be legally displaced. It is comforting to believe that^ Article^ V lays down these all-important legal rules^ with^ precision.^ If^ we^ stick^ close to Article V, we^ are^ safe:^ if^ we^ go^ beyond^ it,^ we^ are^ at^ sea. But this picture is an optical illusion. Article^ V^ is^ far^ less^ precise^ than we might^ expect. What^ voting^ rule^ must an^ Article^ V^ proposing^ conven- tion follow?^ What^ apportionment^ ratio?^ Can^ an^ amendment^ modify^ the rules of amendment themselves? If^ so,^ couldn't^ the^ "equal^ suffrage"^ rules of Article V be easily evaded by two successive^ "ordinary"^ amendments, the first of which repealed the equal suffrage rules themselves,^ and^ the second of which^ reapportioned^ the^ Senate?^ Could^ a^ legitimate^ amend- ment generally purport^ to^ make^ itself^ (or^ any^ other^ random^ provision^ of the Constitution) immune from further amendment?^ If^ so,^ wouldn't that clearly violate the legal right of future generations to^ alter^ their^ Govern- ment? Wouldn't the same be true of an amendment that effectively^ en- trenched itself from further revision^ by,^ say,^ outlawing^ criticism^ of existing law? But if that would^ be unconstitutional,^ haven't^ we^ in^ effect made the narrow and hard core^ of^ our^ First^ Amendment^ itself unamendable? If determinate answers to these and^ other^ questions^ exist,^ they^ lie outside Article V, narrowly construed-in^ other^ provisions^ of^ the Constitution, in the overall structure and^ popular^ sovereignty^ spirit^ of^ the document, in the history of its creation and^ amendment,^ and^ in the^ his- tory of the creation^ and amendment^ of^ analogous^ legal^ documents,^ such as state constitutions. And once we consult^ these^ sources,^ we^ will^ find that we are in fact not at^ sea.^10 The^ very^ sources^ that^ render^ Article^ V rules determinate also^ clarify^ the^ equally^ determinate^ rules^ for^ People- driven, majoritarian constitutional change^ outside^ Article^ V.^ By^ 1787,^ at least, the legal rules underlying Jefferson's right of the People to^ alter^ or abolish were no^ murkier^ or^ more^ mysterious^ than^ those^ encoded^ in^ Arti- cle V.
- For^ a^ brief^ discussion^ of^ how^ these^ intra-Article^ V^ questions^ should^ be^ resolved^ in light of the theory and evidence presented here, see infra note 154.
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alter or abolish.' 4 Under this "illegal" argument, the Constitution was a second American revolution, different only from (^) the first and its 1776 Declaration in that the second was bloodless.
1. Legality and the Declaration. - While I applaud any effort to place the Constitution and Declaration side by side, this "illegal" (^) argument misses important differences between the two documents-and (^) indeed between the meaning ofJefferson's words in 1776 and their meaning in
- When written in 1776, Jefferson's words in large part appealed to a Lockean right of violent revolution, triggered when Government had breached its pact with^ the^ citizenry^ by^ violating^ fundamental^ rights.^ 15
This Lockean right required no vote of the People themselves. And if a legal vote were to be taken in 1776, it was far from clear that the voters should include only Englishmen in America but not Englishmen in Britain, since it was doubtful that prior to 1776 Americans (^) and Britons were in law distinct sovereign peoples. (Jefferson thought they were dis- tinct and said so in early drafts of the Declaration, but the Continental Congress edited these passages out.^16 If Americans were (^) indeed distinct from the time of their crossing the ocean, by what right had Parliament ever legislated for them?) Precisely because the right of revolution re- quired force-bullets, not ballots-it could be invoked only if a convinc- ing case could be made of Government oppression. Thus (^) the main purpose of the Declaration was to make this Lockean/revolutionary (^) case by submitting "Facts... to a candid world," piling up example upon example of one act of oppression after another, amounting to "a long train of abuses and usurpations" evincing a "design to reduce [Americans] under absolute Despotism."^ 17
But once the Revolution succeeded, Americans re-Constituted their colonial governments on purely democratic rather than monarchical foundations. As we shall soon see, over the next decade the previously revolutionary right to alter and abolish became domesticated and legalized in each of (^) the thirteen former colonies. Ballots would replace bullets, and the People could exercise this right not simply (as Jefferson's initial phrase could be read to imply) "whenever any Form of Government be- comes destructive (^) of [its] ends" by violating unalienable rights, but at any time and (^) for any reason that the People (by majority vote) deemed suffi-
- Professor Ackerman, who insists that the Constitution was "plainly illegal" yet furnishes a sturdy precedent for future legal amendments, openly flirts with paradox, if not contradiction. If James Madison's and James Wilson's Constitution violated pre-existing legal rules, how was it any different from Jefferson Davis's Confederate Constitution, except that Madison and Wilson succeeded, ex post, and (^) Davis did not? Ackerman's "laws" of amendment seem more laws of political science-empirical regularities, like the "laws" of supply and demand-than formal, legal, procedural laws that specify an ex ante rule of recognition. 15. See John Locke, The Second Treatise of Government §§ 221, 243 (C.B. Macpherson ed., 1980). 16. See Gary Wills, Inventing America 76-90 (^) (1978). 17. The Declaration of Independence para. 2 (U.S. 1776).
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cient. By 1787, the accent had shifted to Jefferson's more expansive clause stressing the People's power to institute new Governments as "to them-not anyone else, not a king, not the world-"shall seem most likely to effect their Safety and Happiness."' 8 This evolution and legalization was a truly transcendent American achievement, played out on the high political stage of each of the thir- teen states in the thirteen fateful years (^) between 1776 and 1789. For as we shall soon see in greater detail, individual states echoed the Declaration of 1776 and extended it, giving the people's right to alter or abolish a precise, regular, peaceful, and legal form that it lacked before 1776. Sov- ereignty was not merely derived from the People-to be momentarily re- claimed by them only in awful spasms of revolutionary violence-but inalienably vested in and retained by the People, and could be exercised peacefully by simple majorities at the polls and (^) in special popular assem- blies/conventions. By 1787, the transition was complete. The Constitu- tion needed no long train of abuses by state governments to justify itself, and recited none. In contrast to the Declaration, it submitted itself to a peaceful popular vote in each state, under principles of majority rule. Unlike American Loyalists in 1776 who took up arms against the Declara- tion, the loyal opposition to the Constitution in 1787 fought the good fight in conventions and not on battlefields. And when outvoted-often by simple majorities-Anti-Federalists in every single state ultimately ac- cepted the outcome because deep down, they too understood (^) the Feder- alists' claim that the Constitution had been legally ratified. 19 But not before trying to brand the proposed Constitution "illegal" early in the game. The (^) "illegal" gambit took two forms. Both gambits were plausible, but in the end both gambits properly failed.
2. Legality and the Confederation. - The first gambit focused on the inconsistency between Article VII of the proposed Constitution and Arti- cle XIII of the Articles of Confederation. 20 Begin with Article VII, the last section of the Constitution, that explains its first, the Preamble. The Pre- amble says that 'We the People do ordain and establish this Constitution" and Article VII says how we do this:
- For clear, self-conscious discussions of this shift, see 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 432-33 (J.B. Lippincott & Co. 1881) (1836) [hereinafter Elliot's Debates] (remarks of James Wilson in Pennsylvania ratifying debates); 4 id. at 229-30 (remarks ofJames Iredell in North Carolina ratifying convention); 1 The Works of James Wilson, supra note 9, at 77-79; Wood, supra note 6, at 343 (quoting Thomas Tudor Tucker of South Carolina). These sources are analyzed infra text accompanying notes 58-65.
- The "illegal" argument cannot account for any of this.
- I begin with this gambit because it is the best known among citizens and scholars and the exclusive subject of most legal analysis of the Constitution's legality. What's more, the ultimate failure of this gambit will lead us directly to the Anti-Federalists' second and more important (^) gambit focusing on state law and state constitutions. See infra text accompanying notes 37-61.
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that it was a league, a treaty. The word "perpetual" said what kind of league it would be: the strongest, the firmest of leagues-as leagues go- but a league nonetheless. And the rule Blackstone invoked applied to all leagues, weak or strong, firm or^ mushy.^ In^ the^ words^ of^ the^ Swiss^ jurist Emmerich de Vattel, whose Law of Nations was widely read and cited in America, "several sovereign and^ independent^ states^ may^ unite^ themselves together by a perpetual confederacy without each in particular ceasing to be a perfect^ state."
2 6
Here then, is a powerful rejoinder to the first "illegal" gambit: the Constitution did^ not^ "illegally"^ depart^ from^ Article^ XIII^ because^ that^ Arti-. cle and the other Articles of Confederation were by 1787 no longer le- gally binding for any state that chose to exercise its legal right to rescind the compact. This powerful rejoinder is no mere twentieth century fabrication. On the contrary, when pressed, leading law-trained friends of the Constitution repeatedly resorted to this rejoinder in 1787-1788. Having clearly set out the breached treaty argument in the months before the Philadelphia Convention in his now-famous^ Vices^ of^ the^ Political System, 2 7^ James Madison wielded the argument as a cudgel in Philadelphia, early and often-tentatively at first, but with increasing firmness as the weeks passed. Here is Madison on June 5: [A]s far as the articles^ of^ Union^ were^ to^ be^ considered^ as^ a^ Treaty only of a particular sort, among^ the^ Governments^ of^ Independ- ent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. 2 8
And two weeks later: Clearly, according to the Expositors of the law of Nations,... a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole [compact] as dis- solved.... [T]he violations of the federal articles had been nu- merous & notorious .... He did not wish to draw any rigid inferences from^ these^ observations.
2 9
On June 30, and more tartly.
- Emmerich de Vattel, The Law of Nations bk. 1 ch. 1 § 10 (LondonJ. Coote 1760). The leading modem historian of the era, Gordon S. Wood, agrees with my assessment of the Articles here. See Wood, supra note 6, at 355.
- See Vices, supra note 24, at 61. GeneralJedediah Huntington^ likewise^ appealed to the breached treaty argument in May 1787, urging the Connecticut legislature to send a delegation to Philadelphia: "[T]he^ compact^ between^ the^ several^ states^ has^ not^ any^ penalty annexed to it for the breach of its conditions.... [Whenever therefore any state refuses a compliance with a requisition made agreeably to the confederation, all obligation on the part of the other states is dissolved." Connecticut Courant, May 21, 1787, at 2, reprinted in 13 The Documentary History of the Ratification of the Constitution 106 (John P. Kaminski et al. eds., 1981).
- 1 The Records of the Federal Convention of 1787, at 122-23 (Max Fan-and ed.,
- [hereinafter Farrand] (angle brackets deleted).
- Id. at 315.
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In reply to the appeal of Mr. E. to the faith plighted in the ex- isting federal compact, he remarked that the party claiming from others an adherence to a common engagement ought at least to^ be^ guiltless^ itself^ of^ a^ violation.
3 0
And later still, on July 23, when Madison may well have had his copy of Blackstone in hand as he sharply distinguished, as had Blackstone, "be- tween a league or treaty, and (^) a Constitution": The doctrine laid down by the law of Nations, in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood (^) to exclude such an interpretation. 31 Six months later, as a member of the pseudonymous trio Publius, Madison penned the Federalist Number 43 for public consumption: [A question] of a very delicate nature present[s itself] on this oc- casion: ... On what principle the Confederation, which stands in the solemn form of a compact among the States, can be su- perseded without the unanimous consent of the parties to it? ... Perhaps also, an answer may be found without searching beyond the principles of the compact itself... A compact be- tween independent sovereigns, founded on ordinary acts of leg- islative authority, can pretend no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties that all the articles are mutually condi- tions of each other; that a breach of any one article (^) is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, (^) and authorizes them, if they please, to pronounce (^) the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining par- ties find it a difficult task to answer the (^) multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. 3 2
The Federalist Papers, of course, enjoyed widespread currency, but other leading Federalists also developed the breached treaty rejoinder. A week before the publication of the Federalist Number 43 in New York, Charleston's Charles Cotesworth Pinckney-who in his youth had studied law at Oxford under Sir William Blackstone himself-lectured the South Carolina Convention as follows: The honorable gentleman says, compacts should be binding, and that the Confederation was a compact. It was so; but it was a compact that had been repeatedly broken by every state in the
30. Id. at 485. "Mr. E" here is Oliver Ellsworth.
- 2 id. at 93.
- The Federalist No. 43, at 279-80 (Clinton Rossiter ed., 1961).
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Federalists caved; when pressed to put up or shut up, they shut up.3 6 Their first "illegal" gambit failed, and rightly so.
3. Legality and State Constitutions. - But the very failure of the first "illegal" gambit leads to the second, far more interesting one. If indeed, the Articles of Confederation were a mere treaty among otherwise in- dependent nations,3 7^ we must carefully consider the laws of these na- tions-the thirteen states-and their relation to the Constitution. Undeniably, the U.S. Constitution, when adopted, would effect^ important changes in the internal governance of each state-for example by strip- ping the state legislature of the power to emit bills of credit, or impair the obligation of contracts, even if the pre-1787 state constitution authorized these actions.3 8^ The key question thus became, by what legal right would Article VII ratification of the Constitution in, say, the Maryland Conven- tion alter the existing Maryland Constitution? The Maryland Constitu-
reservations about the theory of extended republics Madison floated in Philadelphia and featured in The Federalist Number 10. See id. at 147. But perhaps Hamilton-who supervised publication of The Federalist Papers in New York-was responsible for the italicized perhaps in Number 43. Oliver Ellsworth also resisted Madison's breached treaty argument at Philadelphia, labelling it "highly dangerous," id. at 335. And "dangerous" it was, as Madison was the first to admit. But "dangerous" is not "incorrect," and Ellsworth failed to identify any legal flaw in the argument.
36. As states' rightists, most Anti-Federalists were hardly in a position to rebut the states' rights gloss placed on the Articles of Confederation by the breached treaty rejoinder and by the Constitution's own Article VII, see infra note 37.
- The legally independent status of the states prior to adoption of the Constitution is supported by all the major legal documents of the era, and by broad historical evidence. For 150 years prior to independence, the individual colonies had of course been separate, having been founded at different times and with different, unique charters and forms of government. The Declaration of Independence proclaimed itself in the name of "free and independent states"-independent even of each other, save as they chose to concert their action. Given the predominance of Montesquieu's vision that a single republic could not extend over a vast geographic, cultural,^ and^ climatic^ range,^ it^ is^ somewhat fanciful^ to^ think that, legally, a continental nation was formed in 1776 with virtually no discussion, and with the patriots' continental assembly pointedly calling itself a 'congress." The words of individual state constitutions, and^ the^ centrality^ accorded^ these^ documents^ by revolutionary Americans, further attest to the independence and sovereignty of states prior to 1788; and the "sovereignty" of states was, of course, the explicit hallmark of the Articles of Confederation. So^ too,^ the^ Treaty^ of^ Peace^ with^ Britain^ recognized^ the^ legal independence of individual states. Finally-and revealingly-so did Article VII of the Constitution itself, which made clear that prior to joining the Constitution's "more perfect union" each state spoke for itself and only itself, and was legally free to go its own way. Further supporting documentation and analysis appears in Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1444-62 (1987); and in the definitive historical account of this period, see Wood, supra note 6, at 354-59.
- See Letter from James Madison to George Washington (April 16, 1787), in 9 The Papers of James Madison 385 (Robert A. Rutland ed., 1975); 1 Farrand, supra^ note^ 28,^ at 317 (remarks^ of^ James^ Madison);^2 id.^88 (remarks^ of^ George Mason);^2 id.^ 92- (remarks of James Madison); 3 id. 229 ("Genuine Information" of Luther Martin before Maryland legislature); The Federalist No. 44, at 286 (James Madison) (Clinton Rossiter ed., 1961).
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tion of 1776 had its own explicit amendment clause, and it, too, looked rather different from the federal Constitution's Article VII:
That this Form of Government, and the Declaration of Rights, and no part thereof, shall be altered, changed, or abolished, un- less a bill so to alter, change or abolish the same shall pass the General Assembly, and be published at least three months before a new election, and shall be confirmed by the General Assembly, after a new election of Delegates, in the first session after such new^ election.^ 3 9
Note the obvious differences between this Maryland Constitution clause and the U.S. Constitution's Article VII. The Maryland clause re- quires two votes; Article VII, one. The Maryland clause looks to the ordi- nary Government; Article VII envisions a special convention of the People of Maryland. Here, then, was the Anti-Federalists' second "illegal" gambit: (1) the Maryland Constitution clause specified the exclusive mode by which the Maryland Constitution could be lawfully altered or abolished; (2) ratifica- tion of the federal Constitution in Maryland would indeed alter impor- tant aspects of the state constitution; but (3) the Article VII ratification mechanism did not satisfy the Maryland exclusive clause. Thus, ratifica- tion via Article VII would be illegal under pre-existing and binding Mary- land law. But once again, the Federalists had a compelling rejoinder. And this rejoinder has enormous implications for my "First Theorem." As we shall see, the Federalists argued that the Maryland Constitution clause was best read as nonexclusive-and the logic (^) underlying this rejoinder strongly implies that Article V of the federal Constitution is likewise best read as nonexclusive. a. PopularSovereignty. - In the Philadelphia Convention, Maryland's Daniel Carroll "mentioned the mode of altering the Constitution of Maryland pointed out therein, and that no other mode could be pursued in that State." 40 But listen carefully to Madison's bold yet lawyerly reply: The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitu- tion .... The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bills of rights, that first principles might^ be^ resorted^ to.^ 41
Whereas Carroll read the Maryland amendment clause as the exclu- sive mode of lawful constitutional change -"no other mode could be pur- sued"-Madison read it more narrowly; it specified only the way ordinary Government could amend the Constitution (by two ordinary votes of two ordinary legislatures) but did not exclude the People themselves-"the
39. Md. Const. of 1776, art. LIX.
- 2 Farrand, supra note 28, at 475.
- Id. at 476.
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During the ratification period, the Carroll-Madison exchange was in effect reenacted in several states-this time in the public spotlight. Point- ing to state constitutions, various leading Anti-Federalists played the "state illegality" card. As had Carroll in Philadelphia, Luther Martin of Maryland read his state constitution's amendment clause as exclusive, as emphasized by his own italics:
As our constitution had pointed out a mode by which, and by which only, alterations, were to be made therein, a convention (^) of the people could not be called to agree (^) to and ratify the said form of government, without a direct violation of our constitution 46
In Massachusetts, the state constitution contained a clause calling for a canvassing of voter sentiment in 1795; if "two-thirds of the qualified voters ... who shall assemble and vote ... are in favor of [a constitutional] revision," the legislature would be obliged to (^) convene a constitutional convention. 47 According to a Massachusetts Anti-Federalist pamphlet, the date 1795 was not exclusive, but the rest of its rules were: Should it be a question, whether an alteration in the Constitu- tion can be made before the year 1795, there is nothing in the clause recited, that I can conceive to prevent it: because although in the year 1795, precepts must issue for the purposes mentioned, there is no provision to prevent their issuing, if nec- essary, before that period. But surely, if any alteration should be made in the Constitution, it must be in a mode provided by the Constitution itself, for otherwise the clause recited must become a nullity. 48
Likewise, the Pennsylvania Constitution of 1776 contained a clause pro- viding that in 1783 and "in every seventh year thereafter" a "council of censors" was to meet, with the power to call a convention for amending the constitution if "two-thirds of the whole number [of censors] shall agree." 49 Dissenting from the Pennsylvania Convention's ratification of the U.S. Constitution, leading Pennsylvania Anti-Federalists claimed that the Pennsylvania clause was indeed exclusive, and that ratification was thus illegal under Pennsylvania law: [The Pennsylvania Constitution] cannot legally be altered but by a recommendation (^) of a council of censors, who alone are au- thorized to^ propose^ alterations^ and^ amendments.^
50
- 3 id. at 229.
- Mass. Const. of 1780, ch. VI, art. X.
- A Republican Federalist (III), in 4 The Complete Anti-Federalist 169, 172 (Herbert J. Storing ed., 1981) [hereinafter Storing] (emphasis in original). Professor Storing identifies the likely author as James Warren, Speaker of the Massachusetts House of Representatives and husband of Mercy Otis Warren.
- Pa. Const. of 1776, § 47.
- The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania To Their Constituents (Dec. 18, 1787), in 3 Storing, supra note 48, at 145,
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As had Madison at Philadelphia, the Federalists responded vigor- ously to this Anti-Federalist gambit, playing their popular sovereignty trump card with flourish. In his first discussion of the Constitution's Arti- cle VII, Publius trumpeted (^) popular sovereignty with capital letters: "The fabric of American empire ought to rest on the solid basis of THE CON- SENT OF THE PEOPLE.... that pure, original fountain (^) of all legitimate authority."5 1^ Though (^) echoing Madison in Philadelphia with its descrip- tion of the people as the "fountain" of all lawful power, Number 22 was in fact authored by Alexander Hamilton.
But Number 22 appeared before Luther Martin and the Pennsylvanians had published their accusations of illegality; and so Publius returned to the gambit in later, more pointed, essays. In Number 39, Madison reminded his readers (^) that the "Constitution is to be founded on the assent and ratification of the people of America... (^) [and] derived from the supreme authority in each State-the authority of the people themselves." 52 In the next number, and more pointedly, Madison wrote: [I]n all great changes of established (^) governments forms ought to give way to substance; ... a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right (^) of the people to "abolish or alter their gov- ernments (^) as to them shall seem most likely to effect their safety and happiness,"* .... [The proposed Constitution is] to be sub- mitted to thepeople themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out ante- cedent errors and irregularities. *Declaration of Independence. 5 3
Hamilton returned to this theme in his own Federalist Number 78, where he, too, appealed to the Declaration of Independence's self-evident pop- ulist truth: I trust the friends of the proposed Constitution will never con- cur with its enemies* in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with^ their^ happiness^ ....^^54 Lest his audience miss the point that he was directly rebutting the "ille- gal" gambit, Hamilton dropped a blunt footnote: "*Vde Protest of the Mi- nority of the Convention of Pennsylvania, Martin's speech, etc." 5 As with his development of the breached treaty rejoinder to the Anti- Federalists' first "illegal" gambit, Publius did not stand alone in develop- ing the popular sovereignty rejoinder. Most important were the argu- ments of James Wilson during the Pennsylvania ratifying convention.
- The Federalist No. 22, at 152 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
- Id. No. 39, at 243 (James Madison).
- Id. No. (^) 40, at 252-53 (James Madison) (footnote in original).
- Id. No. 78, at 469 (Alexander Hamilton).
- Id.
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These important truths, sir, are far from being merely^ spec- ulative. We, at this moment, speak and deliberate^ under^ their immediate and benign influence. To^ the operation^ of^ these truths we are to ascribe the scene, hitherto unparalleled,^ which America now exhibits to the world-a gentle,^ a^ peaceful,^ a^ vol- untary, and a deliberate transition from one constitution of^ gov- ernment to another. In other^ parts^ of^ the^ world,^ the idea^ of revolutions in government is,^ by^ a^ mournful^ and^ indissoluble association, connected with^ idea^ of^ wars,^ and^ all^ the^ calamities attendant on wars. But happy experience^ teaches^ us^ to^ view such revolutions in a very different light-to^ consider^ them^ only as progressive steps in improving^ the^ knowledge^ of^ government, and increasing the^ happiness^ of^ society.^59 Wilson's elaboration of^ the^ popular^ sovereignty^ rejoinder^ was^ not some newly minted, half baked, ad hoc apology^ for^ Article^ VII.^ Rather,^ as his immediate audience well understood, Wilson's speech^ built^ on^ argu- ments he^ and^ his^ allies^ had^ been^ crafting^ in^ Pennsylvania^ for^ almost^ a decade. As^ early^ as^ 1777,^ they^ had^ articulated-and^ acted^ upon-the theory that^ the^ Pennsylvania^ amendment^ clause^ was^ not^ exclusive,^ and that popular sovereignty first^ principles^ required^ that^ the^ people^ them- selves, acting in special conventions, retain the right^ to^ change^ their^ Con- stitution at any time and^ for^ any^ reason.^60 "[Did^ not]^ the^ people^ ... reserve to themselves the power^ of^ approving^ or^ disapproving^ of^ the^ con- stitution, after it was framed?" asked^ one^ Pennsylvania^ paper^ in^ June 1777. b. Declarationsof Rights. - Here^ then,^ was^ the^ Federalists'^ emphatic popular sovereignty^ rejoinder^ to^ the^ Anti-Federalists'^ second^ "illegal" gambit. Now that we understand its^ substance,^ we^ must^ investigate^ its source: Whence did the^ Federalists^ derive^ these "first^ principles"? At one^ level,^ the^ question^ may^ be unanswerable,^ for^ at^ some^ point first principles are by definition fundamental, and^ fundamental^ by^ defini- tion. Other principles derive from them, not^ vice-versa;^ they^ stand^ as^ the basic "rule^ of^ recognition"^ underlying^ every^ legal^ order.^ But^ on^ other levels-sociological and^ epistemological^ rather^ than^ ontological-we^ can go beneath the Federalists' confident^ invocations^ of^ "first^ principles,"^ and see the facts and the texts^ on^ which^ the^ Federalists^ built,^ the^ soil^ in^ which they laid their foundation^ stone. For starters,^ there^ is^ of^ course^ the^ text^ of^1776 Declaration^ of^ Inde- pendence, which Publius quoted,^ after shearing^ off^ its^ more^ limited Lockean language requiring a^ long train^ of^ government^ abuse.^ Thus Madison in Number 43 placed the^ accent^ on^ Jefferson's^ broad^ phraseol- ogy of a right to the people to amend "as^ to^ them^ shall^ seem^ most^ likely
- 2 Eliot's^ Debates,^ supra^ note^ 18,^ at^ 432-33.
- See Geoffrey Seed, James Wilson 123-24^ (1978);^ and^ the^ eye-opening^ essay^ by Matthew Herrington, Popular^ Sovereignty^ in^ Pennsylvania^ 1776-1791,^67 Temp.^ L.^ Rev. (forthcoming Fall 1994) (on file with author). 61. Wood, supra note 6, at 444.
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to effect their safety and happiness," which Hamilton in Number (^78) para- phrased as "the right of the people to alter or abolish (^) the established Constitution whenever they find it inconsistent with their happiness." Likewise, Wilson stressed that by legalizing the right of revolution- through peaceful conventions-Americans had broadened (^) the right be- yond Locke, invocable in the new world "whenever and however [the Peo- ple] please" to "increas[e] the happiness of society." Wilson (^) elaborated on this theme at length in his 1790 Lectures on Law, cleverly choosing Black- stone-who had opposed the American Revolution-rather than the more popular Locke, or a narrow reading ofJefferson's (^1776) Declaration, as his foil and punching bag.6 2^ James Iredell's remarks in (^) the North Car- olina ratifying convention also sounded this theme: In other countries, they suppose the existence of original com- pact, and infer that if the sovereign [king] violates his part of it, the people have a right to resist. If he does (^) not, the government must remain unchanged, unless the sovereign consents to an al- teration. In America, our governments have been clearly cre- ated by the people themselves. The same authority that created can destroy; and the people may undoubtedly change the gov- ernment, not because it is ill exercised, but because they con- ceive another^ form^ will^ be^ more^ conducive to^ their^ welfare.^
63
As South Carolina's Thomas Tudor Tucker put the point in 1784, in what Gordon Wood has described as "one of the most prescient and remarka- ble pamphlets written in^ the^ Confederation^ period": 6 4
[In America] tumultuous proceedings are as unnecessary as they would be improper and ineffectual. Other means are in our hands, as much preferable as good order is to confusion .... [Whenever the people want to change (^) their constitution] it is entirely in their power to effect it without the smallest disturbance. 65
Clearly, then, the Federalists' first principles (^) pointed to the text of the Declaration, butjust as clearly, they played (^) up its popular sovereignty strains while playing down its more traditional (^) Lockean overtones. (And if we focus on the Declaration as an act-triggering (^) a violent revolution without taking a vote of "the People'-the Lockean dimension looms large.) The Federalists' interpretation was plausible, but needed addi- tional support. From where?
- See 1 The Works ofJames Wilson, supra note 9, at 77-79 ("[O]ne great principle, the vital principle ... is ... that the supreme or sovereign power of the society resides in the citizens at large; and that, therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and whatever manner, they shall deem it expedient."). See also id. at 317 (similar). For remarkably similar language from an Anti- Federalist, see Letter from Samuel Adams to John Adams (Nov. 20, 1790), in 6 Works of John Adams (Charles Francis Adams ed., Boston, Little Brown & Co. 1851).
- 4 Elliot's Debates, supra note 18, at 229-30.
- Wood, supra note 6, at 280.
- Id. at 343 (quoting Tucker's 1784 pamphlet, Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice).
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