Article V through the years: The Founding Era

Article V through the years: The Founding Era

George Mason may have introduced the Article V convention process to the United States Constitution, but he was displeased with the Constitution itself.

“This Government will commence in a moderate Aristocracy,” he predicted in his 1787 “Objections to the Constitution of Government formed by the [Constitutional] Convention.” He said it was “impossible to foresee whether it will, in its Operation, produce a Monarchy, or a corrupt oppressive Aristocracy,” although he assumed “it will most probably vibrate some years between the two, and then terminate in the one or the other.”

He was wrong. The American Republic has never yet devolved into either form of repressive government (at least not entirely), and the U.S. Constitution has withstood the test of time as a steward of liberty and legal buttress against tyranny.

But perhaps Mason, despite his misguided opposition to the Constitution, is, in large part, responsible for its exceptional longevity. The statesman from Virginia, a perpetual critic of federal power, argued the Constitution was incomplete without a bill of rights to secure Americans’ personal liberties and pushed for the subsequent inclusion of such a document in the nation’s new governing charter. The author of the Declaration of Independence, Thomas Jefferson, attributed the American Bill of Rights to Mason, whom he praised as “one of our greatest men, and of the first order of greatness.”

However, that isn’t the only liberty-preserving mechanism Mason contributed to the document he refused to sign. As the architect of the Article V convention, he also helped create the process that, to this day, empowers the American people through their state legislators to rein in the federal government. Although we have never used this process, Article V shares a long and storied history with America’s greatest heroes, from George Washington and Abraham Lincoln to Dwight D. Eisenhower and Ronald Reagan — a history that weaves through the whole of American history until it arrives at the modern day.

The Federalist Papers

Even as the Father of Article V was making the case against the new Constitution, the Federalists, the men fighting for it, were using Article V to placate the nation’s potential fears. In Federalist 43, James Madison, the Father of the Constitution, praised the document for guarding “equally against that extreme facility, which would render the Constitution too mutable [changeable]; and that extreme difficulty, which might perpetuate its discovered faults.”

The Framers knew the Constitution was imperfect, and they wanted posterity to correct it via constitutional amendment; however, they also wanted to ensure the document wouldn’t be altered too casually or haphazardly. The inter-state convention was one such method of ensuring that amendments, arising from the people, received overwhelming democratic support. Article V, Mason wrote, “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 a future installment of the Federalist Papers, Federalist 85, Alexander Hamilton made another case for Article V, arguing the convention process invalidated “the declamation” that “persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.” In President Ronald Reagan’s more accessible language, “No government ever voluntarily reduces itself in size.” Hamilton, however, was unconcerned: with a convention for proposing amendments, the states could force the government to reduce itself in size.

“The words of this article are peremptory,” he noted. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.”

“We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority,” he added.

Fortunately, the nation heeded the advice of Madison and Hamilton and ratified the Constitution.

A new nation

In that formative new era of constitutional governance, the nation’s leaders took great pains to ensure they followed the Constitution and remained within its restrictive bounds. They understood that if they in any way wanted to expand their enumerated powers, the people, acting through their state legislatures, would have to first consent by explicitly amending the Constitution. This crucial task did not belong to the courts, congress, or president; it belonged exclusively to the people.

“If in the opinion of the people,” George Washington said during his famed Farewell Address, “the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates” [emphasis added].

This healthy sensitivity to constitutional jurisdiction resulted in a heavy Founding-era emphasis on limited government and federalism: “I believe the states can best govern our home concerns, the general government our foreign ones,” Jefferson wrote in 1823, describing, in essence, the core tenet of federalism. “I wish therefore to see maintained that wholsome [sic] distribution of powers established by the constitution for the limitation of both: & never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market.”

Taking fault with Chief Justice John Marshall’s ruling in Marbury v. Madison (1803), which established the judiciary as the nation’s ultimate constitutional authority, Jefferson countered, “the ultimate arbiter is the people of the Union, assembled by their deputies in Convention, at the call of Congress, or of two thirds of the states.”

Jefferson and Marshall may have disagreed on who had the final say on constitutional matters, but it didn’t change that the national authority was, in either case, still expected to follow the Constitution. James Monroe, the fifth and final Founding Father to serve as president, was an excellent example of this.

James Monroe and internal improvements

In 1822, President Monroe revealed to the House of Representatives he wanted to pursue a policy of “internal improvement.” However, he first wanted to know “whether the power to adopt and execute a system of internal improvement by roads and canals has been vested in the United States.” Examining the question in a letter spanning 28,948 words, Monroe refused to act unless he was certain he had the power. After exhaustively comparing the powers reserved to the federal government versus those left to the states, he determined he did not.

“Having now examined all the powers of Congress under which the right to adopt and execute a system of internal improvement is claimed and the reasons in support of it in each instance, I think that it may fairly be concluded that such a right has not been granted,” he said. To his credit, rather than proceeding with the project, he revealed he would table it until and unless the people granted him the authority: “If it is thought proper to vest this power in the United States, the only mode in which it can be done is by an amendment of the Constitution” [emphasis added].

Less stringent constitutionalists wouldn’t have batted an eye at improving roads and canals without the Constitution’s express approval. But Monroe cared too much about the people to violate their trust. Quoting Article V, in its entirety, he explained the Constitution was “incapable of change until altered by the will of the majority.”

“In the institution of the Government of the United States … a compact was formed between the whole American people which has the same force and partakes of all the qualities to the extent of its powers as a compact between the citizens of a State in the formation of their own constitution,” he reminded the legislature. “It can not be altered except by those who formed it or in the mode prescribed by the parties to the compact itself.”

(Additionally, Monroe dismissed the myth about the so-called runaway convention, noting, “The Constitution of the United States was formed by a convention of delegates from the several States, who met in Philadelphia, duly authorized for the purpose, and it was ratified by a convention in each State which was especially called to consider and decide on the same” [emphasis added].)

The men in Monroe’s day set a powerful example for following the Constitution, even when it prohibited them from doing what they wanted to do. Sadly, the nation increasingly strayed from that precedent, emboldening leaders from both parties to casually override the supreme law of the land, a now regular occurrence in Washington.

George Mason knew this day would come, which is why he gave us the Article V convention process. Without the convention method, “No amendment of the proper kind would ever be obtained by the people, if the government should become oppressive,” James Madison recorded Mason’s comments at the 1787 convention. The Anti-Federalist may have been wrong about the efficacy of the Constitution itself, but his prescience regarding the amendment process has proven invaluable. 

Follow along for more convention history when “Article V through the years” returns with “Abraham Lincoln and beyond.” In the meantime, sign the petition below to show your support for the modern movement to use Article V to end federal tyranny.