Month: April 2018

I’ve gone through both volumes of “The Debate on the Constitution; Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification”, compiled by the eminent historian Bernard Bailyn.

There is no reference from this record to any understanding of the Amendment Power which is other than an equal division of it between the Congress and the states.  The ratification generation understood the two modes to be equivalent.

It was a misunderstanding, and a failure to appreciate the practical significance of the 2/3 quorum required for the states to meet to consider an amendment.

It was a fatal flaw.  The unchecked abuse of power by Congress is the consequence.  The remedy is clear.  A technical amendment only, agreed upon in advance by 2/3 of the states, is required.

Are we, as state legislators, capable of this?  Or are we so fearful of each other that we can never assemble to consider any amendment?  If we are too timid to protect our liberties, perhaps we don’t deserve them.

That is the question.  We’ll soon find the answer.

He was a lawyer, a drafter of the Constitution, United States Senator from Connecticut, and the third Chief Justice of the United States.  From the Connecticut Courant (Hartford) December 3, 1787

“I am sensible that speculation is always liable to error.  If there be any capital defects in this constitution, it is most probable that experience alone will discover them.  Provision is made for an alteration if on trial it be found necessary.”

Experience has discovered a capital defect in the Constitution, in that the power of the states to originate amendments has never been capable of exercise.  This part of the Constitution has been on trial for 231 years, it has been found wanting, and it is necessary to alter it.

“We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”

That reliance was misplaced.  The encroachments of the national authority are legion, and the state legislators are incapable of erecting the needed barriers.  That incapacity is a result of a technical error in Article V, requiring 2/3 for a quorum.  Correct the error, and the erection of the barriers can begin.

Coxe was a Pennsylvania merchant, delegate to the Annapolis Convention of 1786, and the co-author, with Alexander Hamilton, of the Report on Manufactures (1791).  He wrote an address to the members of the Virginia ratification Convention, in the Pennsylvania Gazette of May 21, 1788, closing as follows:

“They will remember the provision to obtain amendments, and will recollect that the power will continue with the people at large in all time to come.” (Italics in original.)

 

Published in the Pennsylvania Mercury and General Advertiser, April 29, 1788, under the pseudonym Fabius:

“Such untired industry to serve their country, did the delegates to the federal convention exert, that they not only laboured to form the best plan they could, but, provided for making at any time amendments on the authority of the people, without shaking the stability of the government.”