How the U.S. Constitution became Mutable

A government that could not govern

With the signing of the Declaration of Independence in July 1776, America needed to form a government, and fast. In the throes of war, delegates met at the first Constitutional Convention to build one. What emerged was the Articles of Confederation — an exceedingly weak “league of friendship” that left too much power in the hands of the several states and too little in a central government.

Ratified in 1781, its problems emerged almost instantly. Congress had no power to tax nor to regulate trade or commerce. America fell into a deep recession — prices collapsing, interest rates soaring, hard money all but vanishing. By the end of the war in 1783, debts had amassed. Congress’s only real revenue was annual requisitions from the states — but the states had their own debts, and routinely skipped their federal tithing. There was no mechanism to make them pay.

To settle their own books, states raised taxes until rebellion fomented; one effective uprising in 1786 was led by Revolutionary War veteran Daniel Shays. Disputes flared between states which the federal government had no authority to settle. The Articles suffered from two fatal flaws: a single (unicameral), malapportioned legislature — one state, one vote — and a requirement of unanimity to change any of it.

Representative Rufus King of Massachusetts wrote that the federal treasury stood “without money or the prospect of it.” The states, he complained, “care so little about the Union.” Workers went unpaid, the troops in the West were “mutinous,” commerce was “almost ruined.” The people, he warned, “do not know their dangerous situation.” The Articles of Confederation were an irredeemable failure. Calls for a convention mounted.

Philadelphia, 1787

In 1787 the calls were answered, and delegates gathered in Philadelphia for the stated purpose of revising the federal constitution. Virginia set the tone by sending its most distinguished citizens — chief among them George Washington, whose name alone lent the gathering instant credibility and drew other states to send their best. Washington would be elected President of the Convention.

Some delegates arrived certain the Articles had to be scrapped entirely and a new constitution built from the ground up; many others were persuaded after little debate. Those four summer months might serve as a master class in compromise — those who felt most deeply about holding the union together gave in to fateful demands to keep the convention from collapsing. The first two months were dominated by apportionment: the Senate emerged from the Great Compromise, while the enslaved would be counted as three-fifths of a person.

Rejecting Immutability

When attention turned to amendment, the framers gave the ideal method surprisingly little thought. The idea was neither controversial nor groundbreaking — most state charters already allowed for amendment, though none so onerous as the Articles. Perhaps the framers assumed the lesson of an unamendable charter, like the Articles of Confederation, would carry forward for generations.

On June 11th an amendment resolution was broached, and the proposal was one that bypassed the national legislature entirely. George Mason of Virginia rose in support, with a warning that still reads as prophecy.

To require the legislature’s consent, Mason added, “would be improper… because they may abuse their power, and refuse their consent on that very account.” A first draft, presented August 6th, made a state-called convention the sole means of proposing and ratifying amendments. But doubts crept in. Elbridge Gerry of Massachusetts (who would later lend his name to partisan, distorted district maps) warned that a convention majority could “bind the Union to innovation that may subvert the states constitutions altogether.” Madison fretted over the vagueness of conventions: “How was a Convention to be formed? by what rule decide? what the force of its acts?”

Roger Sherman of Connecticut, James Wilson of Pennsylvania and others, refined the design more into what we know today: conventions or Congress as proposing bodies, plus a separate ratification step — two-thirds to propose, three-fourths to ratify.

But before it was finalized came unfortunate compromises. John Rutledge of South Carolina declared he would never “agree to give a power by which the articles relating to slaves might be altered,” and won language shielding the slave trade until 1808. Sherman, fearing three-fourths of the states “might be brought to do things fatal to particular States… depriving them of their equality in the Senate,” maneuvered until the convention agreed to make equal suffrage in the Senate permanently unamendable.

By the people

Early on, the convention decided the new charter would be ratified not by state legislatures but by state conventions with delegates chosen directly by the people. Mason argued the authority of the people was essential: legislatures “are the mere creatures of the State Constitutions, and cannot be greater than their creators.” Madison agreed that a legislature changing the constitution under which it existed would be “a novel & dangerous doctrine.”

On September 17th, with the writing concluded, Washington sent the document to Congress, recommending it be submitted to “a Convention of Delegates, chosen in each State by the People.” Many had believed the Philidelphia convention would merely amend the Articles; instead came an entirely new constitution with a stipulation requiring only nine states needed to ratify. Madison defended it in Federalist No. 40 by mocking the “absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth” — another dig at the Articles of Confederation.

In the states, debate “raged in newspapers, taverns, coffeehouses, and over dinner tables,” the historian Pauline Maier writes. The country split into two camps: Federalists, who wanted the Constitution ratified as written, and those who didn’t — dubbed Anti-Federalists, though they were the ones who favored a looser confederation of states. Patrick Henry, hero of the Revolution and staunch Anti-Federalist, used his fiery temper to attack the convention’s very legitimacy.

Anti-Federalists were especially aggrieved by the lack of a bill of rights, and many demanded amendments before they would ratify. Hamilton answered that chasing perfection first would “expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan.” Perfection was a mythical beast; ratify now, amend later went the Federalist cry.

A promise kept

In February 1788, Massachusetts, in debating ratification, brokered a compromise that would carry forward: rather than demand amendments before ratification, it would submit them after. Nearly every state followed. In June, New Hampshire became the ninth to ratify, meeting the document’s terms. Calls for a second convention came almost instantly — but the First Congress, meeting in 1789, answered the demand itself.

James Madison, though an ardent Federalist, led the charge, arguing it would prove that Federalists were “as sincerely devoted to liberty and a republican government” as anyone. He authored the Bill of Rights — twelve amendments, ten of which were ratified by December 1791. An early, rare victory for Article V. Ratify now, amend later — a promise kept.

The sleeping giant

Over the next two centuries, amendments came in spurts, often clustered around upheaval. The historian Jill Lepore calls Article V a “sleeping giant” — dormant for long stretches, then, all at once, thunderous.

Between the spurts, constitutional change never stopped — it simply shifted from popular will to judicial interpretation. Reaction to Court decisions has driven amendment after amendment: the Eleventh in defense of state sovereignty; the Reconstruction amendments after Dred Scott; the Sixteenth after the Court struck down the income tax; the long fight for women’s suffrage after an 1875 ruling shut the door. In his 1861 Inaugural Address, Lincoln warned that if vital questions were “irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers.”

Since 1789, Congress has sent thirty-three amendments to the states; twenty-seven were ratified. Yet there has never been an Article V convention to propose one, and only once — the repeal of Prohibition — were amendments ratified by state conventions rather than legislatures. The U.S. Constitution has one of the lowest amendment rates in the world — though not, as Lepore notes, for lack of trying: something on the order of twelve thousand amendments have been formally introduced in Congress over its history.