PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES”
We recall how clearly the Americans at Philadelphia, in 1787, knew
that any grant of _national_ power to interfere with the freedom of
individuals _was_ the constitution of government. We recall the bitter
conflict of opinion, threatening the destruction of the assembly, over
the manner of choosing the members of the legislature to exercise
whatever powers _of that kind_ the citizens of America might grant. We
recall the great opposition to the proposal of a grant of _any_ power
_of that kind_ and to the particular proposal of each of the enumerated
powers _of that kind_, all embodied in the First Article.
We have thus come to know with certainty that the minds of the
Americans at Philadelphia, during those strenuous four months, were
concentrated mainly upon a proposal to grant some _national_ power to
interfere with the human freedom of all Americans. In other words, we
have _their_ knowledge that their proposed First Article, by reason
of its grants of _such_ power, would constitute a new nation and
government of men, if those grants were validly made by those competent
to make _such_ grants.
Under which circumstances, we realize that it became necessary for
them to make a great legal decision, in the construction of basic
American law, and, _before_ making that decision, which was compelled
to be the result of judgment and not of will, accurately to ascertain
one important legal fact. Indeed, their decision was to be the actual
conclusion reached in the effort to ascertain that legal fact. This
was the single question to which they must find the right answer:
“Under our basic American law, can legislatures ever give to government
any power to interfere with the human freedom of men, or must every
government in America obtain its only valid powers _of that kind_ by
direct grant from its own citizens?”
It is easy for us to state that they should have known that the answer
to that question was expressly and authoritatively given in the
Statute of ’76. It was there plainly enacted that every just power of
any government must be derived from the direct grant of those to be
governed by its exercise. Yet our own leaders for the last five years
have not even asked the question, much less known the right answer.
At Philadelphia, in 1787, they _did_ know it. They had no doubt
whatever about it. We shall see that quickly in our brief review of
the record they made at Philadelphia in ascertaining and deciding,
as a legal necessity, to whom their First Article and its enumerated
grants of _national_ power must be sent and, when we boast of how
quickly we knew the answer, we should admit that we did not know it
until _after_ we had lived again with them through their experience of
the preceding ten or twelve years which had educated them, as it has
just educated us, to that knowledge. Furthermore, many of us average
Americans will be unable to explain, until later herein, why, during
the last five years, our own leaders have not known the right answer.
The Statute of ’76 has not been wholly unknown to them. The record of
the Philadelphia Convention and the ratifying conventions has not been
entirely a closed book to them. The important and authentic statements
of Webster and other leaders of past generations have been read by
many of them. If they did not understand and know the correct answer,
as we now realize they have _not_ known, let us not withhold from the
Americans at Philadelphia our just tribute of gratitude that they _did_
accurately know, when it was amazingly important to us that they should
know.
When _those_ Americans came to answer that question, there were
facts which might have misled them as other similar facts of lesser
importance have undoubtedly misled our leaders.
In 1776, from that same Philadelphia had gone a suggestion that a
constitution of government, with Articles granting power to government,
be made in each former colony. In 1787, there had gone from that same
Philadelphia a proposal that a constitution of a general government for
America be made, with Articles granting power to that government. The
proposal of 1776 had suggested that the proposed Articles be made by
the people themselves, assembled in conventions. The proposal of 1777
had suggested that the proposed Articles be made by the legislative
governments of the states. Both proposals, even as to the makers
of the respective Articles, had been acted upon. All the Articles,
although some had been made by the people themselves and others by
legislatures, had been generally recognized as valid law. Some of the
men at Philadelphia in 1787 had been members of the proposing Second
Continental Congress, when the respective proposals of 1776 and 1777
had gone from Philadelphia. When, in 1787, they were called upon to
find and state, as their legal decision, the correct answer to their
important question, it was necessary for them to ascertain, as between
state “legislatures” and the people themselves, in “conventions,”
_which_ could validly make the Articles which had been worded and were
about to be proposed. It would not, therefore, have been beyond the
pale of our own experience if the earlier proposals had misled them and
they had made the wrong answer to the question which confronted them.
Furthermore, as we have already noted, although we can little realize
the influence of such a fact upon men seeking the correct legal answer
to an important question, their whole proposal was a new adventure
for men on an uncharted sea of self-government. Under all of which
circumstances, let us again pay them their deserved tribute that they
went unerringly to the only correct answer.
We know that the essence of that answer is expressed in the Seventh
Article proposed from Philadelphia. Only one answer was possible to
Americans of that generation. They had been “subjects” and had become
“citizens.” They knew the vital distinctions between the two relations
to government.
The Convention which framed the Constitution was, indeed, elected by
the state legislatures. But the instrument, when it came from their
hands, was a mere proposal, without obligation, or pretensions to it.
It was reported to the then existing Congress of the United States,
with the request that it might “be submitted to a convention of
delegates, chosen _in_ each state by the _people_ thereof, under the
recommendation of its legislature, for their assent and ratification.”
This mode of proceeding was adopted; and by the Convention, by
Congress, and by the state legislatures, the instrument was submitted
to the people. They acted upon it in the only manner in which they
can act safely, _effectively_, and wisely, on such a subject, by
assembling in convention. It is true, they assembled in their several
states; and where else should they have assembled? No political
dreamer was ever wild enough to think of breaking down the lines which
separate the states, and of compounding the _American_ people into one
common mass. Of consequence, when they [the _American_ people] act,
they act _in_ their states. But the measures _they_ adopt do not, on
that account, cease to be the measures of the people themselves, or
become the measures of the state governments. From these conventions
the Constitution [_the First Article grants of power to interfere
with individual freedom_] derives its whole authority. The government
proceeds directly from the people; is “ordained and established” in
the name of the people.... It required not the affirmance, and could
not be negatived, by the state governments.... To the formation of a
league, such as was the Confederation, the state sovereignties were
certainly competent.
But, when a general government of America was to be given any national
power to interfere with the individual freedom of its citizens, as in
the First Article of 1787 and in the Eighteenth Amendment of 1917,
acting directly on the people, the necessity of referring it to the
people, and of deriving its powers directly from them, was felt and
acknowledged by all. The government of the Union, then, (whatever
may be the influence of this fact on the case,) is, emphatically,
and truly, a government of the people. In form and _in substance_ it
emanates from them. _Its powers are granted by them_, and are to be
exercised directly on them, and for their benefit. (Marshall in the
Supreme Court, M’Culloch v. Maryland, 4 _Wheat._ 316.)
Marshall was one of the Americans who had been at Valley Forge in
1778, and at other places whose sacrifices _made_ it the basic law of
America that all power over American citizens _must_ be derived by
direct grant from themselves. Later, he was prominent in the Virginia
convention where all Americans in Virginia knew and acted upon this
basic law. These facts qualified him to testify, from the Bench of the
Supreme Court, that _all_ Americans _then_ knew and acknowledged the
binding command of that basic law.
Under such circumstances, it was impossible that the Americans at
Philadelphia should not have known and obeyed that law in the drafting
of their proposed Seventh _and Fifth_ Articles. Both of these Articles,
the Seventh wholly, and the Fifth partly, deal with the _then_
future grant of national power over the people and its only _legal_
gift by direct grant from the people themselves, assembled in their
“conventions.” Both Articles name the people of America, by the one
word “conventions.”
That Philadelphia should not have strayed from the legal road clearly
marked by the Statute of ’76 was certain when we recall how large a
part Madison played at Philadelphia, and particularly how he personally
worded and introduced, in the closing hours at Philadelphia, what we
know as its Fifth Article. As to his personal knowledge of this basic
law, we recall his letter of April, 1787, where he said, “To give
the new system its proper energy, it will be desirable to have it
ratified by the authority of the people, and not merely by that of the
legislatures.” And we recall his later words, when urging Americans to
adopt the Constitution with its Fifth and Seventh Articles, he said of
the Seventh, “This Article speaks for itself. The express authority of
the people _alone_ could give due validity to the Constitution,” to its
grants of power over the people in its First Article. (_Fed._ No. 43.)
That we may fix firmly in our own minds the knowledge which all
Americans _then_ had, which _our_ leaders never acquired or have
entirely forgotten, let us briefly review what the earlier Americans
did at Philadelphia in obedience to that knowledge of basic American
law.
On May 28, Randolph of Virginia “opened the main business” of the
Convention. He proposed fifteen resolutions embodying the suggestion of
what should be in the different Articles. Resolution Number 15 was that
such Articles should be submitted to “_conventions_,” “to be expressly
chosen by the people, to consider and decide thereon.” (5 _Ell. Deb._
128.)
The first short debate on this Resolution took place on June 5. In
it Madison stated that he “thought this provision _essential_. The
Articles of Confederation themselves were defective in this respect,
resting, in many of the states, on the _legislative_ sanction only.”
The resolution was then postponed for further consideration. On June
12, “The question was taken on the 15th Resolution, to wit, referring
the new system to the people of the United States for ratification. It
passed in the affirmative.” (5 _Ell. Deb._ 183.) This was all in the
Committee of the Whole.
On June 13, that Committee made their full report, in which the
Randolph Resolution Number 15 was embodied in words as Resolution
Number 19 of the report. On June 16, while the Convention was again
sitting as a Committee of the Whole, the great struggle was on between
the conflicting opinions as to how and in what proportion should be
elected the future legislators who were to exercise the granted powers
over Americans. On that day, the discussion centered on the relative
merits of the Randolph _national_ proposals and a set of _federal_
Articles amending the existing Federal Constitution. In supporting
Randolph, Wilson of Pennsylvania stated that “he did not fear that the
people would not follow us into a _national_ government; and it will
be a further recommendation of Mr. Randolph’s plan that it is to be
submitted to _them_, and not to the _legislatures_, for ratification.”
(5 _Ell. Deb._ 196.)
On July 23, Resolution Number 19 came up for action. Remembering how
insistent many of the delegates were that the _general_ government
should be kept a purely _federal_ one, it is not surprising to find
Oliver Ellsworth of Connecticut opening the short debate with a motion
that the Constitution “be referred to the legislatures of the states
for ratification.” But it will also be remembered that the powers
to be granted in the new Articles had not yet been settled. The
_nationalists_ in the Convention, intent on having some _national_
Articles, knew that the proposed ratification must be by the people
themselves, “felt and acknowledged by all” to be the only competent
grantors of _national_ powers.
Colonel Mason of Virginia “considered a reference of the plan to the
authority of the people as one of the most important and essential
of the resolutions. _The legislatures have no power to ratify it._
They are the mere creatures of the state constitutions, and cannot
be greater than their creators.... Whither, then, must we resort? To
the people, with whom all power remains that has not been given up in
the constitutions derived from them. It was of great moment that this
doctrine should be cherished, as the basis of free government.” (5
_Ell. Deb._ 352.)
Rufus King of Massachusetts, influenced undoubtedly by the error
of thinking that the Convention meant to act within the Articles
of Confederation, was inclined to agree with Ellsworth “that the
legislatures had a competent authority, the acquiescence of the
people of America in the Confederation being equivalent to a formal
ratification by the people.... At the same time, he preferred a
reference to the authority of the people, expressly delegated to
conventions, as the most certain means of obviating all disputes and
doubts concerning the legitimacy of the new Constitution.” (5 _Ell.
Deb._ 355.)
Madison “thought it clear that the legislatures were incompetent to the
proposed changes. These changes would make essential inroads on the
state constitutions; and it would be a novel and dangerous doctrine,
that a legislature could change the constitution under which it held
its existence.” (5 _Ell. Deb._ 355.)
Ellsworth’s motion to send to the state legislative governments, and
not to the people themselves, assembled in “conventions,” was lost by
a vote of seven to three. Resolution Number 19, that the new Articles
must be sent to the people themselves was adopted by a vote of nine to
one, Ellsworth and King both voting for it. (5 _Ell. Deb._ 356.)
This impressive discussion, now continued for over a month of 1787,
with its display of accurate knowledge of the distinction between
sending Articles to legislatures and “_referring_” them to the people,
makes quite amusing what we shall hear later in 1917. It will come
from the counsel of the political organization which dictated that
governments should make the supposed Eighteenth Amendment. After he
kindly tells us that history has proven that these Americans of 1787
“builded more wisely than they knew,” meaning “than he knew,” he
shall later impart to us the remarkable information that “the framers
in the Constitutional Convention knew very little, if anything, about
referendums.”
The Resolutions, which had now become twenty-three in number,
on July 26, were referred to the Committee of Detail to prepare
Articles in conformity therewith. On August 6, that Committee made
its report of twenty-three worded Articles. In Article XXII was
embodied the requirement that the Constitution should be submitted
“to a _convention_ chosen in each state, under the recommendation
of its legislature, in order to receive the ratification of such
_convention_.” This provision, the Philadelphia answer and always the
only legal answer to the question as to who can validly grant power
to interfere with individual freedom, was later seen not properly to
belong in the Constitution itself. For which reason, it was taken out
of the Constitution and embodied in a separate Resolution which went
with the Constitution from Philadelphia.
In Article XXI, the first draft of our Article VII, it was provided:
“The ratification of the _conventions_ of ---- states shall be
sufficient for organizing this Constitution.” (5 _Ell. Deb._ 381.)
The month of August was passed in the great debates on the proposed
grants of national power and the other proposed Articles. When the
Convention was drawing to a close on August 30, Articles XXI and XXII
were reached.
Gouverneur Morris of Pennsylvania “moved to strike out of Article
XXI the words, ‘_conventions_ of the,’ after ‘ratification,’ leaving
the states to pursue their own modes of ratification.” Rufus King
“thought that striking out ‘_conventions_,’ as the requisite mode,
was equivalent to giving up the business altogether.” Madison pointed
out that, “The people were, in fact, the fountain of all power.” The
motion of Morris was beaten. An attempt was made to fill the blank in
Article XXI with the word “thirteen.” “All the states were ‘No’ except
Maryland.” The blank was then filled by the word “nine” the vote being
eight to three. The two articles were then passed, the vote thereon
being ten to one. (5 _Ell. Deb._ 499-502.)
On September 10, the beginning of the last business week of the
Convention, Gerry of Massachusetts moved to reconsider these two
Articles. The short discussion was not in connection with any matter
in which we are now interested. His motion was lost. The entire set of
worded Articles was then referred to a committee for revising the style
and arrangement of the Articles agreed upon. (5 _Ell. Deb._ 535.)
On Wednesday, September 12, that Committee reported our Constitution,
with its seven Articles, as we know them except for some slight
changes made during the discussions of the last three or four days of
the Convention. In these seven Articles, the language of the earlier
Article XXII did not appear. As it really was the statement of the
correct legal conclusion of the Convention that its proposed Articles,
_because_ they would grant power to interfere with individual freedom,
_must_ necessarily be made by the people themselves, its proper place
was outside the Constitution itself and in a special Resolution of the
same nature as every Congress resolution proposing an amendment to that
Constitution. That was the view of the Committee and, on Thursday,
September 13, the Committee reported such special Resolutions, in the
very words of the former Article XXII. “The proceedings on these
Resolutions are not given by Mr. Madison, nor in the Journal of the
Federal Convention. In the Journal of Congress, September 28, 1787,
Volume 4, p. 781, they are stated to have been presented to that body,
as having passed in the Convention on September 17 immediately after
the signing of the Constitution.” (5 _Ell. Deb._ 602.)
This is the Resolution:
“RESOLVED, That the preceding Constitution be laid before the United
States in Congress assembled; and that it is the opinion of this
Convention, that it should afterwards be submitted to a convention
of delegates chosen in each state by the people thereof, under the
recommendation of its legislature, for their assent and ratification;
and that each convention, assenting to and ratifying the same, should
give notice thereof to the United States in Congress assembled.
“RESOLVED, That it is the opinion of this Convention, that, as soon as
the conventions of nine states shall have ratified this Constitution,
the United States in Congress assembled should fix a day, etc.” (5
_Ell. Deb._ 541.)
This Resolution is the most authoritative statement of the legal
conclusion reached by these leaders of a people _then_ “better
acquainted with the science of government than any other people in the
world.” The conclusion _itself_ was compelled by accurate knowledge
that the government of “citizens” can validly obtain only from the
citizens themselves, by their direct grant, any power to interfere with
their individual freedom. The expression of that knowledge, in the
Resolution, is, in many respects, one of the most important recorded
legal decisions ever made in America. We average Americans, educated
with those Americans at Philadelphia through their experience of the
years between 1775 and 1787, cannot misunderstand the meaning and
importance of that decision. Instructed by our review of their actions
and their reasoning at Philadelphia in reaching that conclusion and
making that legal decision, we know, with an accurate certainty, that
it was their declaration to the world and to us that no proposal from
Philadelphia suggested that Americans again resume the relation of
“subjects” to any government or governments.
Our minds impressed with this accurate knowledge that such was not
their purpose, we now prepare to complete our education as American
citizens, not subjects, by reading the Philadelphia story and language
of their Fifth Article, their only other Article which even _partly_
concerned the future grant of new government power to interfere with
individual American freedom. By reason of _our_ education, we will then
come to the reading of the language of this Article, as the Americans
read it and understood it when they made it in their “conventions” that
followed the proposing convention of Philadelphia.
Being educated “citizens” and not “subjects,” we ourselves will no
longer, as _our_ leaders have done for five years, mistake the only
correct and legal answer to the indignant outburst of Madison, who
wrote this Fifth Article at Philadelphia. “Was, then, the American
Revolution effected, was the American Confederacy formed, was the
precious blood of thousands spilt, and the hard-earned substance of
millions lavished, not that the people of America should enjoy peace,
liberty, and safety, but that the governments of the individual states,
that particular municipal establishments, might enjoy a certain extent
of power, and be arrayed with certain dignities and attributes of
sovereignty? We have heard of the impious doctrine in the Old World,
that the people were made for kings, not kings for the people. Is the
same doctrine to be revived in the New, in another shape--that the
solid happiness of the people is to be sacrificed to the views of
political institutions of a different form?” (_Fed._ No. 45.)
The American answer, from the people of America assembled in the
conventions that ratified that Fifth Article, was a clear and emphatic
“No.” The Tory answer of the last five years, from _our_ leaders and
our governments, has been an insistent “Yes.”
No one, however, with any considerable degree of truthfulness, can
assert that there has come from the American people themselves, during
the last five years, any very audible “Yes.” To whatever extent
individual opinions may differ as to the wisdom or legality of the
new constitution of government of men, made entirely by governments,
no unbiased observer has failed to note one striking fact. By a very
extensive number of Americans otherwise law-abiding, Americans in all
classes of society, the new government edict, the government command to
“subjects,” has been greeted with a respect and obedience strikingly
similar to the respect and obedience with which an earlier generation
of Americans received the Stamp Act and the other government edicts
between 1765 and 1776.
When the Americans of that earlier generation were denounced by the
government which had issued those edicts to its “subjects,” one of
the latter, five years before Americans ceased to be “subjects” of
that government, stated: “Is it a time for us to sleep when our free
government is essentially changed, and a new one is forming upon a
quite different system--a government without the least dependence upon
the people?”
It may be but a coincidence that, while our American government was
announcing its recognition of the wide-spread American disrespect
for the new government edict, it is only a few days since throughout
America there resounded many eulogies of the Samuel Adams, who made
that statement in the Boston _Gazette_ of October 7, 1771. In those
eulogies, there was paid to him the tribute that he largely helped
to bring about the amazing result of American desire for individual
freedom which culminated in the assembling of the Americans in the
“conventions” which ratified the proposed Constitution.
We have already sensed that the existence of the supposed Eighteenth
Amendment depends entirely upon an amazing modern meaning _put into_
the Fifth Article made in those conventions. Let _us_, therefore, who
are Americans now educated in the experience of the Americans who
assembled in those “conventions,” sit therein with them and there read
the story and the language of the Fifth Article as they read it when
they made it.