upon the doctrine, that the people are the source of all political power, and each of them is the exercise of an ultimate right. But this right is exercised, in the process of amendment, in a prescribed form, which preserves the continuity of the existing gov ernment, and changes only such of its fundamental rules as require revision, without the destruction of any public or private rights that may have become vested under the former rule. Revolution, on the contrary, proceeds without form, is the violent disruption of the obligations resting on the authority of the former government, and terminates its existence often, without saving any of the rights which may have grown up under it. The question, therefore, whether the Constitution should be made capable of amendment, was identical with the question whether some mode of amending it should be prescribed in the instrument itself, since, without an ascertained and limited method of proceeding, all change becomes, in effect, revolution; and this was accordingly, in substance, the same as the question whether revolution should be the only method by which the American people could ever modify their system of government, when in the progress of time changes might become indispensable.

It was originally proposed in the Convention, that provision should be made for amending the Constitution, without requiring the assent of the national legislature. But this was justly regarded as a very important question, and the Convention came to no

1 Elliot, V. 157.

other decision, when the committee of detail were instructed, than to declare that provision ought to be made for amending the Constitution whenever it should seem necessary. The mode selected by the committee, and embraced in the first draft of the instrument, was to have a convention called by the Congress, when applied for by the legislatures of two thirds of the States; but they did not declare whether the legislatures were to propose amendments and the convention was to adopt them, or whether the convention was both to propose and adopt them, or only to propose them for adoption by some other body or bodies not specified. There lay, therefore, at the basis of this whole subject, the very grave question whether there should ever be another national convention, to act in any manner upon or in reference to the national Constitution, after its adoption, and if so, what its functions and authority were to be. There would follow, also, the further question, whether this should be the sole method in which the Constitution should be made capable of amendment. Several reasons concurred to render it highly inexpedient to make a resort to a convention the sole method of reaching amendments, and we can now see that the decision that was made on this subject was a wise one. It was a rare combination of circumstances that gave to the first national Convention its success. The war of the Revolution, and the exigencies which it caused, had produced a class of men, possessing an influence,

1 Elliot, V. 376.

as well as qualifications for the duty assigned to them, that would not be likely to be again witnessed. Of these men, Washington was the head; and no second Washington could be looked for. The peculiar crisis, too, occasioned by the total failure of the Confederation, notwithstanding the apparent fitness and actual necessity of that government at the time of its formation, could never occur again. There were, moreover, but thirteen States in the confederacy, nearly all of which dated their settlement and their existence as political communities from about the same period, and all had passed through the same revolutionary history. But the number of the States was evidently destined to be greatly increased, and the new members of the Union would also be likely to be very different in character from the old States. It was not probable, therefore, that the time would ever arrive when the people of the United States would feel that another national convention, for the purpose of acting on the national Constitution, would be safe or practicable. Still, it would not have been proper to have excluded the possibility of a resort to this method of amendment; since the national legislature might itself be interested to perpetuate abuses springing from defects in the Constitution, and to incur the hazards attending a convention might become a far less evil than the continuance of such abuses, or the failure to make the necessary reforms.

But it was indispensable that the precise functions and authority of such a convention should be defined,

The

lest its action might result in revolution.

method of amendment proposed by the committee of detail did not enable the Congress to call a convention on their own motion, and did not prescribe the action of such a body, or provide any mode in which the amendments proposed by it should be adopted. Hamilton and Madison both opposed this plan; -the former, because it was inadequate, and because he considered it desirable that a much easier method should be devised for remedying the defects that would become apparent in the new system; the latter, on account of the vagueness of the plan itself. Accordingly, Mr. Madison brought forward, as a substitute, a method of proceeding, which, with some modifications, became what is now the fifth article of the Constitution; namely, that the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments; or, on the application of the legislatures of two thirds of the States, shall call a convention for proposing amendments. In either case, the amendments proposed are to become valid as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths of the States, as the one or the other mode of ratification may be proposed by the Congress.1

But when this provision had been agreed upon, the grave question arose, whether the power of amendment was to be subjected to any limitations. There were two objects, in respect to which, as we

1 Elliot, V. 530–532.

2

have more than once had occasion to see, different classes of the States felt great jealousy. One of them had been covered by the stipulations that the States should not be prohibited before the year 1808 from admitting further importations of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the States, in which three fifths only of the slaves were included.1 The other was the equality of representation in the Senate, so long and at length so successfully contended for by the smaller States. At the instance of Mr. Rutledge of South Carolina, a proviso was added, which forbade any amendment before the year 1808 affecting in any manner the clauses relating to the slave-trade and the capitation or other direct taxes. This proviso having now become inoperative, those clauses are, like others, subject to amendment. At the instance of Mr. Sherman of Connecticut, a restriction that is of perpetual force was placed upon the power of amendment, which prevents each State from being deprived of its equality of representation in the Senate, without its consent.1

The oath or affirmation to support the Constitution was provided for by the committee of detail, in accordance with the resolution directing that it should be taken by the members of both houses of Congress and of the State legislatures, and by all

1 Constitution, Art. I. § 9. 2 Ibid. Art. I. § 3.

4 Ibid. 551, 552. Constitution, Art. I § 3.

3 Elliot, V. 532.