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The amended Constitution

By David J. Bodenhamer

Veneration of the Constitution—and of the Founders who drafted it—began early in the nation’s history. Thomas Jefferson, who in 1787 expressed reservations about the Philadelphia convention, hailed the document two years later as “unquestionably the wisest ever yet presented to men.” James Madison, reflecting on the Constitution two decades after he had helped to shape it, called it the “cement of the union.” Some disagreed—abolitionist William Lloyd Garrison called the Constitution a pact with the devil—but by the end of the nineteenth century most citizens commonly endorsed the sentiment of British Prime Minister William Gladstone, who concluded that “the American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.”

What is ironic, of course, is that Americans have proposed more than 10,000 amendments to this perfect instrument since 1788, with the first calls coming almost before the ink dried on the parchment signed in Independence Hall. It suggests that we in fact do not view the Constitution to be as sacred as our rhetoric suggests.

The Bill of Rights, 1791
The Bill of Rights, the first ten amendments to the United States Constitution. Note that the First Amendment is actually “Article the third” on the document, Second Amendment is “Article the fourth”, and so on, 1791. From First United States Congress, National Archives and Records Administration. Public domain via Wikimedia Commons.

The 25th of September marks the 225th anniversary of the first twelve amendments submitted by Congress for approval by specially elected state conventions. They were something of a political afterthought. During the ratification debates of 1788, great skepticism had greeted claims that individual rights required no special protection because the proposed constitution did not grant the central government any power to abridge liberties. The claim did not fly. So supporters of the constitution (Federalists) promised to submit amendments to the First Congress that would limit national power to interfere with individual liberties. James Madison was the intellectual shepherd of this effort, much as he had been in Philadelphia. Ten of the twelve amendments, commonly called the Bill of Rights, were ratified in 1791, with the proposed first amendment (Congressional apportionment) failing to win the required votes and the second proposal (Congressional pay increases) finally adopted in 1992 as the 27th Amendment.

Several interesting lessons emerge from this early history. Even though we celebrate the work of the Philadelphia Convention, the original Constitution was an incomplete expression of the popular will. The Federalists’ concession during the ratification debates reflected a pragmatic political judgment that a large number of the American electorate, perhaps a majority, were not satisfied with a frame of government that granted power without sufficient protections for individual liberty. It also was an acknowledgement that an amended Constitution was a more certain reflection of radical republicanism, the animating force of the Revolution, which in its  popular expression always hinged on a fear of power, especially when exercised by a distant central government.

What this history also reveals is that popular sovereignty, the fiction that made possible the Constitution’s unique federal structure, was more real than its intellectual fathers might have imagined. “We the people” was no empty phrase. Its words conveyed a popular understanding than the American experience was different. Here, the people did more than give their consent to government; they were, as John Jay noted, rulers even though they also were the ruled. An insistence that individual liberties required special protection reflected this new understanding.

Finally, the recognition that government was no longer something that happened to people but was something that people created set up a dynamic that continued to drive the American experience. The original Constitution guarded against the easy acceptance of majority will; the amended Constitution signaled that majorities can reshape the very framework of government itself. When normal politics could not (or did not) accommodate the nation’s democratic impulse, pressure mounted for a change to fundamental law. Most of our constitutional revisions since 1791 in fact have expanded the meaning of “we, the people” or provided ways for the people to govern themselves more directly—inclusion of African Americans (13th, 14th, and 15th Amendments), direct election of U.S. senators (17th Amendment), woman suffrage (19th Amendment), granting electors to the District of Columbia (23rd Amendment), prohibition of poll taxes (24th Amendment), and age of voting lowered to 18 years (25th Amendment).

The amended Constitution has continually embraced who we are as a people. This result was not foreordained in 1787. Even though the framers at Philadelphia provided the means for change through an amendment process, they deliberately (and perhaps wisely) made it difficult to modify the government they proposed. But the ratification debates of 1788 made it clear that change was necessary to further the vision of a nation committed to liberty and equality. The amendments that completed the original Constitution, as well as the expansive amendments that followed, serve as a reminder that the work of this democracy is never finished.

So, venerate the Constitution?  Of course. It is a remarkable document that has served us well. Let’s just remember that the amended Constitution, not the original framework alone, is the living expression of who we the people are.

David J. Bodenhamer is Founder and Executive Director of The Polis Center, Professor of History, and Adjunct Professor of Informatics at Indiana University-Purdue University, Indianapolis. He is the author or editor of several books on American legal and constitutional history, including Fair Trial: Rights of the Accused in American History, and is co-editor of the International Journal of Humanities and Arts Computing. The Revolutionary Constitution will be out in paperback later this year.

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