Hidden History
#2
Article v of the Constitution
the amendment process

Gary Hunt
Outpost of Freedom
January 1998

 

The definitive historical facts showing the intentions of the Founding Fathers pertaining to Article V (the Amending Process)

 

Article V of the Constitution was/is a very important provision within the Constitution. Rather than allowing the Judiciary, the Executive and itís bureaucracy, or the Legislative branches of government change the foundations of government, it required participation by a large majority (3/4) of the states to effect any change. The Founders, recognizing that they were creating a new form of government unlike any other known to the world, realized that they were fallible. To perceive any and every eventuality, and address its solution in the original document was beyond their wildest dreams. The need for a means with which to allow changes to the sacred document warranted the insertion of this Article:

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid, to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;Ö".

In order to understand what was intended by the Founding Fathers, at least with regard to Article V of the Constitution, we must look both at the words, as written, and, where lack of specificity exists therein, to look at the actions of those who penned these words. Only in this manner can the true intent be determined. To suggest that anyone, today, is able to interpret certain aspects of this Article better than the historical record is to demean not only the Founders, but the Constitution and the people, as well.

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"shall propose Amendments"

There is no existing record in the debates of the Constitutional Convention which could shed light on the intention of the Founders with regard to their design in this matter. We can, however, isolate each portion of the Article and determine if it stands without need for interpretation, or if ambiguity might lead to misinterpretation. And, if so, what the intention proves to be by the actions of the Founders.

To do this, we must first understand that there are two parts to the methodology designed to allow Amendment to the Constitution. The first part is whether, or not, an Amendment might be considered for adoption/ratification. There is little doubt that any suggestion for change might be heard. Perhaps, however, the federal government might have doubts about an Amendment, or the States, themselves, might have serious concern. To give fair hearing to either alternative, the method of recognition of whether a Amendment would be submitted to the States for ratification could be initiated by either the Congress (both Houses) or the States, in convention. Although the second method has yet to be exercised, there is significant record of the former existing to fully comprehend what was intended by the first. Since the record stands mute on the second method, it will be left for others, should the need arise, to determine the methodology to be therein exercised.

"shall be valid to all Intents and Purposes, . . ."

With regard to the first method of submission for consideration and ratification, there is little that can be said. The record makes very clear that both Houses, by the majority of two-thirds, must approve any Amendment prior to its being submitted to the States for ratification. In every circumstance, only those states that have become members of the Union may participate in the recommendation to be submitted to the states for ratification. There is but one exception to this rule in our entire history. That exception, however, is easily understood and justified. There is no historical record that indicates that, after receiving the requisite two-thirds vote in both houses, other states, through their representatives or senators were allowed to sway that vote, once approved.

To understand what the intentions of the Founders was rather than what subsequent interpretations might suggest that they were, we must evaluate those changes to the Constitution submitted during the tenure and lives of the Founders. The Amendment Process had been utilized just four times during this period of our history. The first was the Bill of Rights, in which twelve amendments were proposed and submitted to the States for ratification. Subsequent to the Bill of Rights, just three Amendments have successfully ascended to the proposed amendment status. Not until 1865 would another amendment be proposed. By this time, the Founders were in their graves, and the perpetuation of the Constitutional Republic was left in the hands of their posterity.

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"as Part of this Constitution,
when ratified by three fourths of the several States"

As in the first part of the process, we are looking at two methods which may be utilized in the ratification, or second part of the Amendment Process. The requisite for three-fourths, and the methodology for either the legislatures or convention to attain this majority, stands without question. The question which exists, however, is which States are intended to be participants in this process, as the "several States."

What is clear about the first phase of the process is that only those States who were members of the Union could participate in the "proposal" process. Obviously, an entity which had not attained statehood could not participate in the actions of the Congress, and , therefore, could not be players in this first part of the process.

The question of whether a State, entering the Union after an Amendment was submitted for ratification, might participate in this second part of the process seems to provide fuel for controversy. The answer to this question is the purpose of this paper.

It might also be noted here that there is no provision in the Constitution that invites, in any way, shape or form, participation in the process by the Executive (Article II) or the Judicial (Article III) branches of government. The entire process is left to the representatives of the People at both State and federal level, as well as to the People, themselves.

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the historical record

As indicated above, the Founders have provided us with an answer to the question, "which States might participate in the ratification process?" It is incumbent upon us, if our desire is to carry out the wishes and intent of the Founders, to review whatever evidence exists, and to exclude none of the record, in determining the proper answer. The courts have continued to rule that this is a political issue and have, as such, refused to make a determination in the matter.

The subject can be addressed in terms of those amendments proposed, and ratified, during the interval in our history.

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the Bill of Rights

With the exception of the Constitution, the Bill of Rights was the first effort at amending the government since the adoption of the Articles of Confederation. The Constitution was submitted by the twelve signatory States thereof for ratification on "the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth."

The Bill of Rights was proposed by the Congress on September 25, 1789, and ratified on December 15, 1791, by nine states of then thirteen original members of the Union. At the time the twelve amendments were proposed, the Constitution had been ratified by only eleven states. Two states subsequently ratified the Constitution. North Carolina (November 21, 1789) and Rhode Island (May 29, 1790) ratified the Constitution only after the Bill of Rights had been submitted to the states.

Some have argued that North Carolina and Rhode Island having been allowed to ratify the Bill of Rights, although they had not ratified the Constitution at the time of submittal, is proof that Article V means that any state which joins the Union after submittal (the first part of the process) is welcome to participate in the ratification process. This argument is without merit, as will be made clear.

Let"s look a little closer at what really happened. North Carolina and Rhode Island were members of the Union from their date of acceptance of the Articles of Confederation. The Union had existed, as was pointed out in Article VII of the Constitution, "and of the Independence of the United States of America the Twelfth", since 1775. The Constitution did not dissolve the Union, rather it modified the structure. North Carolina and Rhode Island were reluctant participants, until they were satisfied that the anti-federalist inspired Bill of Rights would become reality. North Carolina"s ratification, for example, came just a month (December 22, 1789) after her ratification of the Constitution, and Rhode Island"s just nine days after her ratification of the Constitution (June 7, 1790). Both, however, members of the Union since its formation in 1775.

Statehood for Vermont, self-declared "republic", a major participant in the War of Independence and the scene of one of the first major battles of that War, was contested by New York and New Hampshire -- both of whom claimed lands that subsequently were recognized as the fourteenth state. Not until March 4, 1791, was the discord resolved and Vermont allowed admission to the Union. It appears obvious that she was considered the fourteenth original state of the Union, although years after the fact.

Vermont is recorded as having ratified the Bill of Rights on November 3, 1791. There is no record that indicates the necessity of the vote for ratification, and it is clear that the final vote came from Virginia, on December 15, 1791 which is the recognized date of ratification of the Bill of Rights. What is also distinctly clear is that, with the exception of those States who had been members of the Union prior to submittal of the Bill of Rights, ONLY Vermont has ever had her vote recorded in ratification of the Bill of Rights. Likewise, Vermont is the ONLY state beyond the first thirteen that has on record a ratification of the Constitution for the United States of America. Not an anomaly, as some might suggest, rather a return to the family of a member who had been subject to resolution of land grant matters with her fellow states prior to complete acknowledgement of her part in this Union.

In a follow up to these events of the period, the only other states to ever ratify the Bill of Rights are as follows: Massachusetts, March 2, 1939; Georgia, March 18, 1939; and Connecticut, April 19, 1939. All members of the Union prior to submittal of the Bill of Rights.

No other states have ever ratified the Bill of Rights [Encyclopaedia Britannica, Inc. - 1996]. Proof that recognition of the right to ratify is only granted to those states thuswise qualified (members of the Union for the first part of the process) to participate.

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the Eleventh Amendment

The Eleventh Amendment to the Constitution was proposed by both Houses of Congress in March 4, 1794. By this time, Kentucky had entered the Union (1792), making fifteen states. Congress, through the Executive, directed the Secretary of State to notify these fifteen states of the proposed amendment. This amendment was ratified on February 7, 1795 and declared by the President to the Congress on January 8, 1798.

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the Twelfth Amendment

The Twelfth Amendment to the Constitution was proposed by both Houses of Congress in December 9, 1803. There were Seventeen states in the Union when it was proposed, and there were seventeen states in the Union when it was ratified in June 15, 1804. This can provide no help, except by itís simplicity.

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the Thirteenth Amendment

Two-thirds of both Houses of Congress proposed an amendment to the Constitution in May 1810. Congress, through the Executive, who directed the Secretary of State, notified all seventeen states (then members of the Union) of the proposed amendment. Subsequently, Louisiana (1812), Indiana (1816), Mississippi (1817) and Illinois (1818) entered the Union as member states. In March, 1818, the Congress directed the Executive to report on the status of the amendment. James Monroe, through the Secretary of State, John Quincy Adams, submitted a circular to the governors of Virginia, South Carolina and Connecticut, asking whether they had "acted upon it [the Thirteenth Amendment]." The record clearly omits Louisiana, Indiana, Mississippi and Indiana, then members of the Union, from consideration with regard to ratification..

Others argue that the twenty-one states who were members by the end of 1818 would require 16 states to ratify. For some reason, their thinking stops at this point in time Ė about when Virginia ratified the Amendment. Never is their discussion of the inclusion of Alabama (1819), Maine (1820), Missouri (1821) in their counts. It seems that the detractors wish to recognize Virginiaís ratification as some sort of terminus to the count.

So, what happened beyond 1818? Nearly every state that entered the Union until the Civil War published the Thirteenth (Titles of Nobility) Amendment in their statutes or laws. There can be little doubt that those of the era recognized that the ratification had occurred. If it had not, then the trick worked. No other state acted on the Amendment -- because they werenít qualified so to do, or because they were duped into accepting its ratification as reality. I am inclined to the former, as every indication, as we have discussed, indicates that only the participants of the submittal process may participate in the ratification process.

Clearly, the Founders recognized that only those states who were members of the Union at the time of the proposal process would be considered with regard to the ratification process.

Conclusion...

Not until the 27th Amendment do we see a change in the nature of the ratification process. Now, youíll have to follow this very closely, as it is rather confusing Ė until the reality hits home.

The 27th Amendment was ratified on May 7, 1992. It was first proposed on September 25, 1789 Ė thatís right, as one of the original twelve amendments submitted as the Bill of Rights.

This being the case, only those states qualified to participate in the ratification of the Bill of Rights would be allowed to participate in the ratification of the 27th Amendment.

With the exception of Ohio, which records a ratification of the 27th on May 6, 1873, the only states to ratify the Amendment prior to 1978 are Maryland (1789), North Carolina (1789), Delaware (1790), Rhode Island (1789), Pennsylvania (1790), Virginia (1791) and Vermont (1791). Each of these ratification dates coincide with the ratification dates of the Bill of Rights.

Not considering Ohio as a valid ratification, we can proceed with the count of the qualified Fourteen states. New Hampshire (1985), Connecticut (1987) and Georgia (1988). That gives us ten of the qualified fourteen states ratifying the 27th Amendment as of 1988. The Bill of Rights was ratified with only eleven of the fourteen, which would mean that one more of the first fourteen states ratifying the 27th would constitute lawful ratification.

Well, the official declaration of ratification of the 27th Amendment to the Constitution is recognized as May 7, 1992. Most often it is implied that Michigan was the final vote. Ironically, New Jersey also ratified the 27th Amendment to the Constitution on May 7, 1992. So, by the method we have demonstrated, above, New Jersey would have been the final vote. So, why is it attributed by some to be Michigan?

As of May 7, 1992, 41 states had ratified the 27th Amendment. Letís run some simple mathematics. There are fifty states in the Union. Three fourths of fifty is 37.5, say 38. So, the declaration of ratification was held either until there was a surplus of three votes, or until New Jersey lawfully ratified the Amendment. I leave it to you, the people, to determine what might have caused the inability of the government to properly count the votes. I will add that the 38th vote was cast by either Alabama or Missouri on May 5, 1992. But the official date still stands as May 7.

So, what we have with the 27th Amendment is that about the time the investigation into the ratification of the Thirteenth Amendment was intruding into libraries, archives and every knook and cranny of Washington, D. C., an intensive effort was directed at dusting off an amendment that had stood dormant for over one hundred years. There was no press coverage, nor was there any convention in any state to dust off this relic. There was an effort to rewrite the means by which ratification have always been conducted, as there was an effort exerted during, and after the Civil War to remove the Thirteenth (Titles of Nobility) Amendment from the record. In fact, many law books of the time list the anti-slavery amendment as the fourteenth.

So, twice in our history, we have seen elements of Washington, D.C. come forth to revise that which was, and which is our heritage. Not by the Constitutional process, rather by the imposition of bureaucracy into the works of government, which purpose could only be to serve themselves.

 

A table of the dates of ratification of the Constitution and various amendments.

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