The Founders were students of politics, and history. They read Plutarch, and learned of all the different forms of government which were adopted by the various city-states of ancient Greece. They learned what worked, what didn’t, and why.
In the year of our Revolution, 1776, Edward Gibbon published the first volume of his masterpiece, The Decline and Fall of the Roman Empire. The sixth and final volume was completed in 1788. Men like Mason, Jefferson and Madison would have have been avid readers.
They knew from their knowledge of Roman history that the Twelve Tables, the Constitution of the Roman Republic, remained for 900 years the basic law of Rome.
And they knew what led to the downfall of the Republic, and its replacement by a dictatorship. The Twelve Tables, under the Roman Emperors, were nothing but a fig leaf to their absolute power. The end of constitutional law in Rome, and the end of the Republic, was caused by the Agrarian Revolt, which began in 145 B. C. and ended in 78 B. C.
One of its first leaders, Tiberius Gracchus, frustrated by his inability to make the reforms Rome so desperately needed, violated the Twelve Tables in his pursuit of power. While he was eventually executed, he had set a precedent which was soon followed— to violate the Constitution in your quest for power was now acceptable It eventually became commonplace, and the rule of law, and the Roman Constitution, were doomed. Caesar was just the last act.
And because they were scholars and statesmen, the Founders knew the flaw in the Twelve Tables which led to its downfall. It couldn’t be amended. If Tiberius Gracchus would have been able to amend the Roman Constitution, the Republic could have been reformed, and saved.
The last day of writing the Constitution was when debate on Article V took place. The stakes were high and the argument was contentious. The federalists, led by Hamilton, wanted only the Congress to have the power of amendment. The states rights faction, led by Madison and Mason, wanted only the states to have the power. A compromise was struck. The Congress and the states would have equal power to amend. There were still a few more matters to attend before they could adjourn, so I doubt anyone gave too much thought to the actual legislative language which resulted from their floor amendments.
When the gavel finally came down at the end of a long and exhausting day, the delegates’ work was, at long last, done. They’d return two days later for the engrossment and the vote, but it was over. As they read the engrossed Constitution, a quick review of Article V seemed to show that the amendment power had been equally divided between the Congress and the States.
For want of a nail, the kingdom was lost. For want of proper legislative drafting, the hammer of federalism — Article V —-was lost.
But the American Constitution, unlike the Roman, can be amended. So the hammer can be restored, and the revival of federalism, and the Constitution, can begin.
I like to think of Mason and Madison looking down on us with approval.