A "uniform and entire" Constitution; or, what if Madison had won?

• Author: Hartnett, Edward
• Position: James Madison

James Madison is widely regarded as the father of both the Constitution and the Bill of Rights.(1) Yet the constitution-plus-bill-of-rights that we know today differs in significant ways from what Madison proposed to the First Congress in June of 1789. For example, he proposed an explicit recognition of popular sovereignty,(2) a protection of the rights of conscience, freedom of the press, and criminal jury trial against state infringement,(3) a requirement of "unanimity for conviction" and "the right of challenge" in federal criminal jury trials,(4) and an express statement of separation of powers.(5) In all of these areas, Madison lost. While our constitutional history might have been quite different if Madison had won on these issues, this Article does not seek to revisit Madison's substantive losses. Instead, it explores what our Constitution might look like if Madison had won on another issue he lost in that first Congress: Madison argued that amendments should be interlineated into the body of the Constitution, but the House of Representatives decided instead to attach amendments as supplements to the Constitution.

This Article proceeds in three steps. First, it recounts the debate in the first Congress over the form that amendments to the Constitution would take and Madison's loss on that issue. Second, it analyzes each of the twenty-seven amendments to the Constitution to determine the form they would take in the Constitution if Madison had prevailed on the issue in the first Congress. Finally, it presents a complete text of what our Constitution would look like if Madison had prevailed.

1. THE DEBATE IN THE FIRST CONGRESS

   When Madison proposed his amendments to the Constitution, he sought to integrate them into the body of the Constitution so as to preserve what he considered the "uniform and entire" system of the Constitution.(6) He proposed that the recognition,"(7) of popular sovereignty be "prefixed to the constitution, and that a bar on changes in Congressional compensation from taking effect before an intervening election be "added to the end of the first sentence" in Article I, section 6, clause 1.(8) Similarly, he proposed that the bulk of what we now call the Bill of Rights "be inserted" in Article I, section 9, "between clauses 3 and 4,"(9) and that his suggested additional restrictions on the states "be inserted" in Article I, section 10, "between clauses 1 and 2."(10) In addition, he proposed "the third clause" in Article III, section 2 "be struck out, and in its place be inserted" a new provision governing jury trials in criminal cases, grand jury indictments, and jury trials in civil cases."(11)

   Madison's proposal was referred to a select committee consisting of one representative from each of the eleven states that had, at that point, ratified the Constitution.(12) Although the select committee report differed in some respects from Madison's original proposal, it followed his lead in proposing that the amendments be incorporated into the body of the Constitution.(13) On August 13, 1789, the House of Representatives, sitting as a committee of the whole, began to debate the report of the select committee. Roger Sherman, a "consistent opponent of a Bill of Rights,"(14) immediately objected that "this is not the proper mode of amending the constitution."(15) He argued:

   We ought not to interweave our propositions into the work itself,

   because it will be destructive of the whole fabric. We

   might as well endeavor to mix brass, iron and clay, as to incorporate

   such heterogeneous articles; the one contradictory

   to the other.(16)

   Sherman contended that the "absurdity" of amending Madison's way was demonstrated by comparing it to statutory amendments, asking whether "any Legislature [would] endeavor to introduce into a former act, a subsequent amendment, and let them stand so connected."(17) Sherman questioned the legitimacy of Madison's approach, arguing that the constitution is the "act of the people" while the amendments "will be the act of the state governments," and suggesting that Madison's approach would be the equivalent of "destroy[ing] the whole and establish[ing] a new constitution," thereby "remov[ing] the basis on which we mean to build."(18) He therefore moved that amendments be added as supplements to the Constitution.(19)

   Supporters of Sherman's motion expressed fear that submitting amendments to the states in the way proposed by Madison would be an attempt to repeal the Constitution, risking "the destruction of the whole,"(20) and argued that Sherman's supplemental approach would permit "the world [to] discover the perfection of the original, and the superfluity of the amendments."(21) Moving from weak arguments to fanciful ones, they even argued that "[i]f the amendments are incorporated in the body of the work, it will appear, unless we refer to the archives of congress, that George Washington, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation."(22)

   Madison responded:

   Form, sir, is always of less importance than the substance; but

   on this occasion, I admit that form is of some consequence

   .... Now it appears to me, that there is a neatness

   and propriety in incorporating the amendments into the constitution

   itself; in that case the system will remain uniform and

   entire; it will certainly be more simple, when the amendments

   are interwoven into those parts to which they naturally belong ...

   we shall then be able to determine its meaning without

   references or comparison; whereas, if they are supplementary,

   its meaning can only be ascertained by a comparison of

   the two instruments, which will be a very considerable embarrassment,

   it will be difficult to ascertain to what parts of the

   instrument the amendments particularly refer; they will create

   unfavorable comparisons, whereas if they are placed upon the

   footing here proposed, they will stand upon as good foundation as the

   original work.(23)

   John Vining ridiculed Sherman's proposal, noting he had once seen an "act entitled an act to amend a supplement to an act entitled an act for altering part of act entitled an act for certain purposes therein mentioned" and that if Sherman's mode were adopted, "the system would be distorted, and like a careless written letter, have more matter attached to it in a postscript than was contained in the original composition."(24) Elbridge Gerry confronted directly the suggestion that amendments ratified by state legislatures would not "have the same authority as the original instrument," and challenged Sherman: "if this is his meaning, let him avow it, and if it is well founded, we may save ourselves the trouble of proceeding in the business" of amendments at all.(25) Egbert Benson, supporting Madison's approach, correctly noted that the state conventions that ratified the Constitution "had proposed amendments in this very form."(26) Madison, who had struggled to have the House consider the subject of amendments at all, despaired that if Sherman's motion were adopted, "we shall so far unhinge the business as to occasion alterations in every article and clause of the report."(27)

   Madison certainly seems to have had the better of the argument, and Sherman's motion was defeated.(28)

   Less than a week later, on August 19, Sherman renewed his motion to add the amendments to the Constitution by way of supplement rather than by incorporating them into the body.(29) The extant record reports only that a debate occurred "similar to what took place" on August 13; no details of that debate are provided.(30) This time, however, Sherman's motion carried, with a two-thirds vote in favor.(31) What explains the change?

   During the intervening week, the House of Representatives was a rather unpleasant place to be. On August 15, the House, again sitting as a committee of the whole, discussed a proposed constitutional amendment that neither Madison nor the select committee supported, an amendment providing for instruction of representatives. During this discussion, Thomas Sumter complained of what he considered undue haste in pressing the constitutional amendments proposed by the select committee. He stated that he was "obliged to notice" this "somewhat improper" conduct.(32) In this same debate, Aedanus Burke described the amendments proposed by Madison and the select committee as "little better than whip-syllabub, frothy and full of wind, formed only to please the palate," and compared them to a "tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage,"(33) a common metaphor at the time for a diversionary tactic.(34)

   Madison "was not willing to be silent after the charges that had been brought," noting that Sumter and Burke had "insinuate[d] that we are not acting with candor."(35) He stated, "If I was inclined to make no alteration in the constitution I would bring forward such amendments as were of a dubious cast, in order to have the whole rejected,"(36) thereby insinuating that his opponents were deliberately proposing amendments that had little prospect of being enacted in order to undermine the constitution.(37)

   Writing on August 15, William Smith stated, "there has been more ill-humour & rudeness displayed today than has existed since the meeting of Congress," and "to make it worse, the weather is intensely hot."(38) Later that week, tempers grew so hot that the House saw "the first known instance of congressmen challenging each other to duels."(39)

   In the midst of this discord, Madison concluded that it was "absolutely necessary in order to effect any thing to abbreviate debate, and exclude every proposition of a doubtful & unimportant nature."(40) One of the things that Madison gave up was his favored form of amendment.(41) He explained:

   It became an unavoidable sacrifice to a few who knew their

   concurrence to be necessary, to the despatch if not the success

   of the business, to give up the form...