Paradox of Self-Amendment by Peter Suber Section 18: Amendment by "Inalienable Right to Alter or Abolish Government" A. Amending v. altering or abolishing The third sentence of the Declaration of Independence reads: That to secure these rights [to life, liberty, and the pursuit of happiness], governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. This paragraph continues, counseling against use of this right "for light and transient causes". However, a "long train of abuses and usurpations", especially one "evincing a design to reduce [the people] under absolute despotism" suffices to trigger not only the right, but also the duty, "to throw off such government and to provide new guards for their future security". No comparable language is to be found in the federal constitution; the only right to alter or abolish government found expressed there is the AC. We almost had such language in the constitution, however. James Madison proposed to insert the following language,[Note 1] strongly asserting That the people have an indubitable, inalienable, and indefeasible right to reform or change their Government, whenever it may be found adverse or inadequate to the purposes of its institution. Note that in Federalist #39 Madison wrote that "a majority of every national society" is "competent at all times....to alter or abolish its established government." Alexander Hamilton repeated the principle in Federalist #78, referring to that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness. Hamilton, like Jefferson, says the right should not be exercised under a mere "momentary inclination". But he departs from both Madison and Jefferson, apparently, by linking the right closely to an AC, and denying that the right authorizes an act "incompatible with the provisions in the existing Constitution" or could make any act "justifiable in a violation of those provisions". In this way Madison and Hamilton reflect the basic divisions on the right to alter or abolish government that we will find in the state constitutions. Madison finds it a real power stated in plain language, while Hamilton finds it a grandiloquent statement of principle that legally adds nothing to an express AC. However, comparable language obviously derived from the Declaration of Independence may be found in many state constitutions side by side with the ACs. What is the relation between an express AC and an express right to alter or abolish government? Is the latter surplusage, a mere rhetorical flourish? That is unlikely in view of the fact that most state constitutions put the right to alter or abolish government, not in a grand preamble, but in an otherwise enforceable Bill of Rights along with rights to free expression, freedom from unreasonable searches, and so on. No litigant that I know of has contended in court that the Declaration of Independence provides a right to amend the federal constitution independently of the federal AC. However, a "peace convention" called by Virginia after the Civil War proposed several amendments to the constitution, one of which would have recognized the reserved power of the people in three-fourths of the states to call a national convention to alter, amend, or abolish this constitution.... The proposal also specified that such power shall be independent of Article V, and shall "never be questioned."[Note 2] The proposed amendment was submitted to Congress for consideration under Article V, but was not officially proposed by Congress to the states. It is unclear whether the "peace convention" believed that there was already a right to alter and abolish government independently of Article V, which it intended to solidify through textual recognition, or whether it believed there was no such right, which it intended to add by amendment. One commentator believes the Declaration of Independence already provides a right to alter the federal constitution independently of Article V. William MacDonald proposes wholesale revision of the federal constitution in his book, A New Constitution for a New America.[Note 3] He believes Article V does not suffice for such broad change, and finds an adequate power in the Declaration. But he offers no legal reason to suppose either that Article V does not suffice or that amendment through the Declaration of Independence would be anything other than revolution sanctioned by the same moral principles that sanctioned our first revolution. The question of the relation of an AC to a right to alter or abolish government is raised most pointedly for state constitutions, which often contain both rights in equally explicit language in equally enforceable sections of the constitution. One difference should be noted at the outset. In the absence of entrenchment clauses, the power to amend through an AC is limited only by procedures —such as supermajority votes, limits on the number of amendments that may be submitted at one time, minimum time intervals between amendments, and so on. Clauses containing a right to alter and abolish government, on the other hand, are usually silent or extremely vague on procedure, but do not hesitate to outline substantive conditions that would justify exercising the right. 124