A "Uniform and Entire" Constitution; or, What If Madison Had Won?
Hartnett, Edward, Constitutional Commentary
James Madison is widely regarded as the father of both the Constitution and the Bill of Rights.(1) Yet the constitution-plus-bill-of-rights that we know today differs in significant ways from what Madison proposed to the First Congress in June of 1789. For example, he proposed an explicit recognition of popular sovereignty,(2) a protection of the rights of conscience, freedom of the press, and criminal jury trial against state infringement,(3) a requirement of "unanimity for conviction" and "the right of challenge" in federal criminal jury trials,(4) and an express statement of separation of powers.(5) In all of these areas, Madison lost. While our constitutional history might have been quite different if Madison had won on these issues, this Article does not seek to revisit Madison's substantive losses. Instead, it explores what our Constitution might look like if Madison had won on another issue he lost in that first Congress: Madison argued that amendments should be interlineated into the body of the Constitution, but the House of Representatives decided instead to attach amendments as supplements to the Constitution.
This Article proceeds in three steps. First, it recounts the debate in the first Congress over the form that amendments to the Constitution would take and Madison's loss on that issue. Second, it analyzes each of the twenty-seven amendments to the Constitution to determine the form they would take in the Constitution if Madison had prevailed on the issue in the first Congress. Finally, it presents a complete text of what our Constitution would look like if Madison had prevailed.
I. THE DEBATE IN THE FIRST CONGRESS
When Madison proposed his amendments to the Constitution, he sought to integrate them into the body of the Constitution so as to preserve what he considered the "uniform and entire" system of the Constitution.(6) He proposed that the recognition,"(7) of popular sovereignty be "prefixed to the constitution, and that a bar on changes in Congressional compensation from taking effect before an intervening election be "added to the end of the first sentence" in Article I, section 6, clause 1.(8) Similarly, he proposed that the bulk of what we now call the Bill of Rights "be inserted" in Article I, section 9, "between clauses 3 and 4,"(9) and that his suggested additional restrictions on the states "be inserted" in Article I, section 10, "between clauses 1 and 2."(10) In addition, he proposed "the third clause" in Article III, section 2 "be struck out, and in its place be inserted" a new provision governing jury trials in criminal cases, grand jury indictments, and jury trials in civil cases."(11)
Madison's proposal was referred to a select committee consisting of one representative from each of the eleven states that had, at that point, ratified the Constitution.(12) Although the select committee report differed in some respects from Madison's original proposal, it followed his lead in proposing that the amendments be incorporated into the body of the Constitution.(13) On August 13, 1789, the House of Representatives, sitting as a committee of the whole, began to debate the report of the select committee. Roger Sherman, a "consistent opponent of a Bill of Rights,"(14) immediately objected that "this is not the proper mode of amending the constitution."(15) He argued:
We ought not to interweave our propositions into the work itself,
because it will be destructive of the whole fabric. We
might as well endeavor to mix brass, iron and clay, as to incorporate
such heterogeneous articles; the one contradictory
to the other.(16)
Sherman contended that the "absurdity" of amending Madison's way was demonstrated by comparing it to statutory amendments, asking whether "any Legislature [would] endeavor to introduce into a former act, a subsequent amendment, and let them stand so connected."(17) Sherman questioned the legitimacy of Madison's approach, arguing that the constitution is the "act of the people" while the amendments "will be the act of the state governments," and suggesting that Madison's approach would be the equivalent of "destroy[ing] the whole and establish[ing] a new constitution," thereby "remov[ing] the basis on which we mean to build. …