Here is an interesting article about a neglected topic--the form constitutional amendments should take: Edward Hartnett, " "A 'Uniform and Entire' Constitution; or, What if Madison had Won?"
http://conservancy.umn.edu/bitstream/handle/11299/167697/15_02_Hartnett.pdf
Nowadays we take it for granted that amendments are supplements to the original Constitution--Amendment 1, Amendment 2, and so on all the way to Amendment 27. That isn't the way Madison wanted it, though he reluctantly went along with it to get the Bill of Rights passed speedily. He thought amendments should be incorporated into the original Constitution, changing (as well as adding to) its text if necessary. Roger Sherman, an opponent of the Bill of Rights objected "this is not the proper mode of amending the constitution" because "We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron and clay, as to incorporate such heterogeneous articles; the one contradictory to the other." This was a minority view, but it ended up prevailing. Madison acquiesced in it, saying "It became an unavoidable sacrifice to a *few* who knew their concurrence to be necessary, to the despatch if not the success of the business, to give up the form by which the amendts. when ratified would have fallen into the body of the Constitution, in favor of the project of adding them by way of appendix to it." But he was not happy with this concession, noting that "it is already apparent ... that some ambiguities will be produced by this change, as the question will often arise and sometimes be not easily solved, how far the original text is or is not necessarily superceded, by the supplemental act."
Hartnett asks, "But suppose Madison had not found it necessary to make this sacrifice to 'a few' in the overheated environment of August 1789. What would our Constitution look like?" He then goes through what each of the twenty-seven amendments woudl look like if incorporated into the original text. This is easiest for the Bill of Rights, since Madison himself did most of the work there, before bring compelled to modify his approach in favor of the "appendix" approach.
"Madison's approach would have eliminated ambiguities in the relationship between Article III, the Fifth Amendment, and the Sixth Amendment. For example, Article III requires a jury trial for all crimes, except in cases of impeachment; the Sixth Amendment, by contrast, repeats the requirement of a jury trial in all criminal prosecutions, but has no impeachment exception. Article III requires that trial take place in the state where the crime was committed, unless the crime was not committed in any state, in which case Congress can direct the place of trial; the Sixth Amendment requires a jury of the state and district where the crime was committed, but makes no provision for crimes that do not occur in any state. The Fifth Amendment's grand jury requirement has an exception for military cases; the Sixth Amendment's jury trial requirement does not. Under our Shermanesque constitution, the courts have been left to puzzle out these problems. 53 If Madison's approach ad prevailed, these problems would likely have been avoided by clear textual statements in Article III."
Hartnett notes that "The received wisdom is that 'Americans owe to Sherman, who was actually an opponent of amending the Constitution, the existence of a separate group of Amendments known as the Bill of Rights.'...Bernard Schwartz has argued that the change from Madison's approach to Sherman's approach 'was of the greatest consequence, for it may be doubted that the Bill of Rights itself could have attained its position as the vital center of our constitutional law if its provisions were diluted throughout the Constitution,' and that '[p]aradoxically, it is to Sherman (himself a consistent opponent of a Bill of Rights) that we owe the fact that we have a separate Bill of Rights.' Hartnett rejects this: "Madison's proposal, however, would not have produced less significant 'scattered protections of individual rights.' 57 It would have, instead, produced a better bill of rights.
"Consider, first, that the bulk of what we now consider the bill of rights would have appeared immediately after the protection of the Great Writ of habeas corpus and immediately before the prohibition on bills of attainder and ex post facto laws.58 These constitutional provisions surely belong on a bill of rights and would have been a part of a Madisonian bill of rights--but are not on our Shermanesque bill of rights...
"In addition, the Tenth Amendment would not have been in the Madisonian bill of rights in Article I, section 9, but instead would have stood on its own as a separate article. With the Ninth Amendment in the bill of rights and the Tenth Amendment as a separate article of the constitution, it would have been harder to forget that there are unenumerated rights and much harder to 'treat the ninth amendment as a colossally bad first draft of the tenth.'..
"There is, concededly, one embarrassing drawback to a Madisonian bill of rights in Article I, section 9: Immediately prior to that bill of rights--or perhaps (sadly) the first such right--is the protection of the slave trade until 1808.65 But as we shall see shortly, even this drawback can be turned to advantage. Madison's approach to constitutional amendment has the redeeming virtue of permitting the elimination of such noxious provisions.." (Specificlly, Hartnett argues that a Madisonian Thirteenth Amendment would explicitly strike out the slave-trade and fugitive-slave clauses.)
After the Bill of Rights, of course, one has to speculate (without guidance from Madison) where the amendments would be placed in the text and what modifications of the original text would be made. Still, Hartnett suggests that for the Eleventh Amendment "However one interprets the Eleventh Amendment, it seems unlikely that Madison's approach to constitutional amendment would have resulted in simply adding the words of what now appears in the Eleventh Amendment to the end of Article III, section 2. That is, a Madisonian would be unlikely to draft an amendment describing how Article Ill, section 2, should be construed.75 Instead, under Madison's approach it would have been more likely that Congress would have focused explicitly on whether it was constitutionalizing state sovereign immunity or modifying the party-based heads of federal jurisdiction. Such an explicit focus would narrow the opportunities for mischievous judicial interpretation of constitutional language..."
And so on and so on--I do not have the time and space to go into his analysis of what a "Madisonian" Fourteenth Amendment would look like. Hartnett concludes with a text of a "Madisonian" consitution incorporating all twenty-seven amendments into its body. He concedes that "It is true that such a uniform and entire Constitution lacks the 'archeological feel,' caused by 'different historical layers of text. ' 115 As a result, the scars of history are less immediately visible. But a constitution is not written for historians or archeologists. It is written as a frame of government for the people of today..." and he argues that this "Madisonian" consitution would be a lot more understandable to people who are not lawyers or legal historians. (This is of course apart from the question of whether being forced to think specifically about which provisions of the Constitution would be altered by amendments might lead the drafters of the amendments to make *substantive* changes in them. For example, Hartnett argues that if the drafters of the Thirteenth Amendment had been forced to think through the consequence of the abolition of slavery eliminating the three-fifths clause--and thereby increasing southern influence in Congress--some of the problems of Reconstruction might have been avoided. But of course a counter-argument is that trying to do something about that problem would simply make the Amendment more difficult to pass...)
Hartnett's proposal reminds me of a controversy in 2011. The Republicans, having won control of the House, decided to have the entire text of the Constitution read aloud by members of both parties (as a gesture to the tea party movement which had argued that Congress was passing laws exceeding its constitutional authority). Or *almost* the entire constitution--they skipped slavery-related things like the three-fifths compromise and the fugitive slave clause (as well as other obsolete provisions not related--at least not directly--to slavery, like the original method of choosing senators, the original method of electing the president, etc.)
http://www.washingtonpost.com/wp-dy...1/06/ST2011010603624.html?sid=ST2011010603624 There was some protest of this by African Americans and others who argued that the Republicans were trying to (so to speak) whitewash the Framers. Republicans argued that they were simply reading the Constitution as it operates today. (Note that this debate would not have been possible if the Madisonian approach to amendments had been followed.) I can see the merit of Hartnett's argument that the Constitution is not for historians. But surely, it can be argued, even non-lawyers and non-historians should be aware of the Constitution's past as well as its present. (Cue the Faulkner quote on the past...
http://en.wikipedia.org/wiki/Requiem_for_a_Nun) Reading the entire Constitution, including the "obsolete" parts, helps us do this. (Although the references to slavery in the original Constitution are so euphemistic that a lay reader might not get them anyway.)
Anyway, as Hartnett notes, his "Madisonian" constitution does at least have one attractive feature: "There is, finally, an elegant symmetry to such a Madisonian constitution: It begins with a statement that it is made by 'we the people,' and ends with a recognition of the reserved powers of 'the people.'"