A Forgotten Founder on Amending the Constitution

Lee Cary


James Wilson (1742-1798) of Pennsylvania was one of six persons who signed both theDeclaration of Independence and theConstitution. He's also the only Justice of the Supreme Court to be jailed for indebtedness.  Although a failure at land speculation, he was a brilliant legal scholar.

During the debate in the Pennsylvania Convention considering ratification of the Constitution of the United States, Wilson saidthis:

 There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question writers on different governments will give different answers. Sir William Blackstone will tell you, that in Britain the power is lodged in the British Parliament; that the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle. The British constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII., the act transferring could not, in the strict acceptation of the term, be called unconstitutional.

To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states.

Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess over our constitutions control in act, as well as right.

The consequence is, that the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.

These days talk of amending the U.S. Constitution to require a balanced federal budget is often heard.  Many of us are skeptical that it can happen. Amending the Constitution has been triedoften. And nearly just as often, failed. Consequently, talk of a constitutional amend to balance the budget rings hollow to many of us as just another political gambit to gain some temporary partisan advantage.

But once upon a time, one of the more brilliant Founders traced the power to control the conduct of the national legislature to its ultimate source - we the people.  For we, he said, alone, hold the power to amend our Constitution.  Do we still?