Timothy N. Baldwin, JD.
March 29, 2014
One of the usual weapons Article V opponents will use to oppose an amendment convention is a quote from James Madison when he opposed the Anti-Federalists’ plan for an amendment convention in 1789. Madison said, “I should tremble for the result of a Second [convention].” However, Article V opponents mistakenly rely on Madison’s statement and misapply the politics of 1789.Madison’s true position on Article V actually proves that an amendment convention is necessary today—and not only Madison’s position, but also Thomas Jefferson’s and Patrick Henry’s position prove this.
We must first understand that Madison did not oppose the States using Article V to correct federal abuses. This was substantively debated in the constitutional convention of 1787. Madison, along with the other delegates,knew the States needed an amendment process to control the federal government as experience proved necessary. Surely Madison did not oppose in 1789 what he condoned in 1787. Let’s look deeper.
Remember, during the States’ ratification debates, many Americans believed the Constitution expanded federal power and reduced States power too greatly. This was the Anti-Federalist position, and among its leaders were political big-hitters, Patrick Henry and Thomas Jefferson.
During this time, Anti-Federalists “felt the powers given to Congress so dangerous that the whole plan should be given to state conventions for amendments.”
As for Henry, he “was determined to force a second convention at all costs…[and] was convinced that Virginia could get a much more powerful and much stronger safeguards of its liberties through another convention.”
As for Jefferson, he wanted an amendment convention to limit what he thought was too much federal power. Jefferson wrote about using Article V in Notes on the State of Virginia, stating that “whenever any two of the three branches of government shall concur…that convention is necessary for altering the Constitution, or correcting breaches of it, a convention shall be called for the purpose” (Federalist Paper 49).
Madison knew that the Federalists got mostly what they wanted out of the 1787 proposed constitution; namely, a much stronger and more centralized federal government. Even monarchist, Alexander Hamilton was quite pleased with the power given to the federal government under the Constitution. It is no wonder the Anti-Federalists vehemently opposed the constitution.
Madison feared that the Federalists would lose all they had gained in the Constitution if the States called an amendment convention; because, in reality, the majority of Americans were at that time Anti-Federalists. Madison could not let their plan for a second convention go without response.So, Madison addressed this directly in Federalist Paper 49.
To start, Madison quoted Jefferson’s view of Article V, which stated, “[Article V was to] alter the Constitution, or correct breaches of it” (Federalist Paper 49). Madison did not contend with Jefferson on this point. He admitted that Article V should be used for those purposes. Specifically, Madison observed that when fundamental power struggles happen in a constitutional system, the people—through Article V—should make the final determination. Madison said,
The several departments being perfectly co-ordinate by the terms of their common commission, none of them…can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who…can alone declare its true meaning, and enforce its observance? (Federalist Paper 49)
Of course, among the power struggles anticipated and expected in the Constitution were that of State versus federal power. In fact, there was not a more expected struggle than this.
While Madison agreed with Jefferson’s statement of Article V’s purpose, he qualified his agreement. He stated that an amendment convention should be done, 1st, “for certain great and extraordinary cases,” and 2nd, only when time and experience revealed where those struggles were. Madison believed that otherwise the Constitution “would not possess the requisite stability.” For a new nation just out of Revolution and war with Great Britain, the United States needed stability perhaps more than anything. It is no wonder Madison emphasized stability over Article V in 1789.
In short, Madison believed it was premature for an amendment convention and thought that the Anti-Federalists should wait to see what time and experience would reveal about the system. He said,
frequent appeals [to Article V] would…deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. (Federalist Paper 49)
To listen to Article V opponents, however, all the States have to do to fix our problems is cite the Tenth Amendment. In fact, James Madison denounced State nullification (where States can nullify a federal law by passing a State law). He said in a letter to Edward Everett on August 28 1830 regarding the topic of State nullification:
That to have left a final decision in such cases to each of the States, then 13 & already 24, could not fail to make the Constn. & laws of the U. S. different in different States was obvious; and not less obvious, that this diversity of independent decisions, must altogether distract the Govt. of the Union & speedily put an end to the Union itself. A uniform authority of the laws, is in itself a vital principle.
To have made the decisions under the authority of the individual States, co-ordinate in all cases with decisions under the authority of the U. S. would unavoidably produce collisions incompatible with the peace of society, & with that regular & efficient administration which is the essence of free Govts. (source)
Madison then explains that if the States feel the federal government is abusing its power, they should amend the Constitution. He said,
Should the provisions of the Constitution as here reviewed be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U. S. the final resort within the purview of the Constn. lies in an amendment of the Constn. according to a process applicable by the States.
Article V opponents who reject amending the Constitution and who insist that State nullification is the answer willingly reject what Madison, Jefferson and Henry said on the subject:
• Madison believed that Article V should be used in “great and extraordinary cases.”
• Madison believed Article V should be used where experience and time revealed fundamental power struggles between (state and federal) governments.
• Jefferson believed Article V should be used to “correct breaches of the Constitution.” (Note: Jefferson advocating using Article V to correct federal abuse well before the Kentucky Resolution arrived.)
• Henry believed Article V should be used to limit federal power in favor of the States.
The States have had ample time and experience to understand the nature of our situation. Clearly today’s conditions are “great and extraordinary cases.” Clearly there is and has been a fundamental power struggle between the States and federal government regarding the Commerce Clause. Clearly the States see the need of correcting the federal government’s breaches of the Constitution. Clearly the States see the need to limit federal power in favor of the States.
The reasons Madison opposed an amendment convention are no longer relevant to opposing one today. Using Madison’s, Jefferson’s and Henry’s reasons for calling an amendment convention, every State-rights, limited-government American should be insisting their legislators apply for an amendment convention for the purpose of controlling and limiting the federal government. Time and experience insist on it.
� 2014 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com