The Amendment and Ratification Process

The “Fifth Page” of the Constitution

Article VII of the Constitution—which is a very terse statement about what would be necessary to ratify the Constitution—does not contain the Convention’s final verdict about the entire ratification process. Instead, these resolutions were drawn up in what is sometimes called the “fifth page” of the Constitution—a document that was transmitted along with the rest of the constitutional text and which is not normally reproduced as part of the Constitution or displayed at the National Archives. This resolution, which was given its final form by the Committee of Style on September 13, describes how the Constitution should be “laid before the United States in Congress assembled.” It then humbly describes the process whereby—in “the opinion of this Convention”—the Constitution should be submitted to the state legislatures and ultimately to ratifying conventions within each state. It concludes with instructions on how the first government was to be assembled in the event of ratification. The Framers’ final word on the ratification process was intended to incorporate the existing organs of government in the United States—the federal and state legislatures—in the formalities of ratification. Yet at the same time it was intended to vest all authority for accepting or rejecting the plan in the representatives of the people, those delegates to the ratifying conventions who were explicitly chosen for the purpose of expressing the people’s will on this question. 

Lingering Objections from Mason, Gerry, and Randolph

Most of the delegates seemed satisfied with this solution to ratification. But a few members had lingering misgivings, and some of those dissenters were ardent in their dissent. It was during the debates on August 31 that the three non-signers of the Constitution at the Convention—Gerry, Mason, and Randolph—tried to radically alter the mode of ratification. Mason declared “that he would sooner chop off his right hand than put it to the Constitution as it now stands.” He hoped that they might yet change some of the most objectionable parts of the plan before they adjourned, but if that was not possible, then he wished instead that the plan of government be submitted to “another General Convention.” Edmund Randolph had been from the first a steadfast advocate for a popular ratification, and he had also thought that is was proper that only nine states were sufficient to ratify. Nonetheless, now that the Constitution contained so many disagreeable features, he was reverting to a version of the position that he had stated to Madison weeks before the Convention had begun its work. He wished “that the state conventions should be at liberty to propose amendments, to be submitted to another General Convention, which may reject or incorporate them, as may be judged proper.” The rest of the delegates resisted this new assault which would (as they saw it) doom their months-long efforts to certain defeat. They were unwilling to risk a nationwide debate over accepting each individual provision independent of the whole. If the Constitution had any hope of adoption, it could only be through an all-or-nothing approach.

Randolph Proposes another Convention

On September 10, Randolph again complained about the unacceptable parts of the Constitution. He thought that the Virginia Plan that he had read to the Convention in its opening days had been a model of republican freedom, but the ensuing debates had deformed its essential features. What choice did the Convention leave him? “Was he to promote the establishment of a plan which he verily believed would end in tyranny?” He accordingly made the formal motion to change the ratifying provision so that the state conventions would have the “power to adopt, reject, or amend; the process to close with another General Convention, with full power to adopt or reject the alterations proposed by the state conventions, and to establish finally the government.” Benjamin Franklin, who was actively promoting harmony and even unanimity in the Convention, seconded Randolph’s motion. Mason then urged his colleagues to allow Randolph’s motion to “lie on the table for a day or two” before deciding on the question. 

Nothing further was done with this motion at all, and on September 15 Randolph made one final attempt to refer the final ratification process to another general convention after first allowing the states to offer amendments. “Should this proposition be disregarded, it would, he said, be impossible for him to put his name to the instrument. Whether he should oppose it afterwards, he would not then decide; but he would not deprive himself of the freedom to do so in his own state, if that course should be prescribed by his final judgment.” Mason seconded Randolph’s motion and urged its adoption. He insisted: “It was improper to say to the people, take this or nothing.” Mason and Gerry added their names to Randolph’s ultimatum: they could not sign the Constitution unless it held out the promise that final ratification would be by another general convention with the authority to alter the plan according to the wishes of the states.

Ratification: All or Nothing

The other delegates could not be tempted to accept this final opportunity of reclaiming the support of the wayward members. Charles Pinckney admitted that “these declarations, from members so respectable, at the close of this important scene, give a peculiar solemnity to the present moment.” Nonetheless, what they were asking was too high a price for the privilege of bringing them back into the fold. If they agreed to allow a new Convention to revisit these questions, and only after the people had been drawn into the deliberations, he predicted that: “Nothing but confusion and contrariety will spring from the experiment. The states will never agree in their plans, and the deputies to a second Convention, coming together under the discordant impressions of their constituents, will never agree. Conventions are serious things, and ought not to be repeated.” Madison reported that when the delegates voted on Randolph’s motion to change their mode of ratification, “all the states answered, no. On the question to agree to the Constitution, as amended [by the Convention], all the states, ay.” 

The Framers thus presented the American people with an ultimatum: they must accept all or nothing. Critics of the Constitution—both in Congress and in the ratifying conventions—blasted this choice. But the Framers knew better than anyone that the proposed Constitution, for all of its flaws, had been the product of numerous interrelated compromises, concessions, and bargains between the different states. Pulling out even one loose thread might end by unravelling the whole. During the ratifying period, many of the Federalists remained convinced that no unity would have been possible if the entire country had been invited to become embroiled in the same controversies that had divided the delegates to the Constitutional Convention in the summer of 1787.