A Final Vindication of the Principle of State Sovereignty in Article V
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September 10, 2014
The standard account of the Virginia Ratification Convention has James Madison carrying the water for the Federalists, who succeeded in winning adoption of the U.S. Constitution by a vote of 88-78. John Marshall, it’s said, stood shoulder-to-shoulder with him.
Yet, that’s not right. It seems that the Accepted Version owes more to Madison’s and Marshall’s later eminence than to the actual record. Although Madison certainly did play an important role, his poor health caused him to miss several days of that conclave. His limitations as a speaker further circumscribed his role. As at Philadelphia the summer before, Governor Edmund Randolph did much of the work that Madison’s frail frame wasn’t up to. George Nicholas of Albemarle County took the third “starring role,” while Marshall contributed only one major speech.
It’s unsurprising, then, that the best evidence for the original understanding of the Article V amendment process provided by the transcript of the Richmond Convention takes the form of a speech by Nicholas. Scion of a very prominent Virginia political dynasty (his father was the last colonial treasurer, while his brother—another Richmond Convention delegate—would be governor, U.S. senator, and president of the Richmond branch of the Bank of the United States), George Nicholas first burst onto the Virginia political scene with a motion to impeach Governor Thomas Jefferson in 1781. A few years later, he persuaded Madison to write “Memorial and Remonstrance: On Religious Assessments” in support of the pair’s successful effort to defeat Patrick Henry’s General Assessment. He would end his days as Kentucky’s first attorney general.
Apparently Nicholas was very corpulent. One eye-witness tells of Madison’s inability to restrain his laughter on seeing a caricature of the gigantic Nicholas as “a plum pudding with legs to it.” Still, Madison trusted Nicholas’s political advice, in the run-up to Richmond no less than in the contest with Henry. Nicholas’s contributions to the debates of the Richmond Convention took the form of very insightful, legally learned disquisitions on all manner of subjects, notably the significance of ratification and the Article V process.
Thus, on June 6, 1788, nearly a week into the convention, Nicholas rejected the Antifederalist assertion that “amendments can never be obtained, because so great a number is required to concur. Had it been rested solely with Congress,” he explained, “there might have been danger.” Not to worry, however: “there is another mode provided, besides that which originates with Congress. On the application of the Legislatures of two-thirds of the several states, a Convention is to be called to propose amendments, which shall be part of the Constitution, when ratified by the legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof: It is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.”
Nicholas went on immediately to explain why he was so confident that the states would ratify the convention’s product: the convention would only do what the states had told it to do. As he put it, “The Convention which shall be so called, will have their deliberations confined to a few points;--no local interests to divert their attention;--nothing but the necessary alterations.” Besides that, Nicholas added, the new convention would not have to divide over the preliminary issues that had beset the Philadelphia Convention. “No experiments to devise,” he said, “the general and fundamental regulations being already laid down.” In other words, procedural questions such as how the states should vote would already have been decided before the convention began.
As the attentive reader will have noted, the Compact for America program-that of securing a formal agreement among the states to the proposal and ratification of a desired amendment-is perfectly consistent with leading Virginia Federalist George Nicholas’s explanation of the way the Article V amendment process would work.
More information on the Compact for America Initiative can be found at http://www.CompactforAmerica.org