July 6, 2010 – Federalist No. 49 & Federalist No. 50 – Cathy Gillespie
Tuesday, July 6th, 2010
Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges! It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”
These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49. Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.
Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution. In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.
It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason. Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’ final result: Article V of the Constitution.
The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:
“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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.
To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.
The beauty of the amendment process, as Madison described in Federalist 43 is:
“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”
In practice, what is our country’s history of amending the Constitution? Has it worked out as well as Madison intended and predicted?
I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:
5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.
Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.
The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.
Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.
Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!
The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”
The amendments to our United States Constitution read like a history of our country. Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.” Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!
Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!
Your Fellow Patriot,