THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS”
It has been the misfortune of our prominent Americans of this
generation that they read the Fifth Article with _preconceived_
notions of its meaning. To the error of that method of reading it,
we average Americans will not pay the tribute of imitation. We know
that its meaning to those who made it in the “conventions” of the
earlier century is the meaning which it must have as part of the
supreme law of the land. That we may read it as they read it and get
its clear and only possible meaning, as they got it, we shall briefly
review the story of its wording and its proposal at Philadelphia.
That Convention immediately preceded the assembling of the people in
their own “conventions.” In each of their “_conventions_,” among the
people assembled, were some who had been prominent at Philadelphia,
such as Madison and Randolph and Mason in Virginia, Hamilton in New
York, Wilson in Pennsylvania and the Pinckneys in South Carolina.
Moreover, between the Philadelphia proposal and the assembling of these
conventions, Madison and Hamilton, proposer and seconder of the Fifth
Article _at Philadelphia_, had been publishing their famous essays, now
collectively known as _The Federalist_, in the New York newspapers to
explain the Articles worded at Philadelphia and to urge their adoption.
Under which circumstances, it is clear that, if we want to read and
know the meaning of the Fifth Article as it was understood in those
conventions, the Fifth Article which named those same “conventions,”
we must complete our education by an accurate and brief review of
the story of that Article at Philadelphia. Only in that way shall
we average Americans of today be in the position in which were the
Americans who made that Article.
When we read that story of Philadelphia, in relation to the Fifth
Article, one thing stands out with amazing clarity and importance.
We already know how that Convention, until its last days, was
concentrated upon the hotly debated question of its own proposed grants
of _national_ powers in the First Article. In the light of which
continued concentration, it is not surprising to learn that, until
almost the very last days, the delegates forgot entirely to mention,
in their tentative Fifth Article, the existing and limited ability
of state legislatures to make federal or declaratory Articles, and
mentioned only “conventions” of the people, who alone could or can make
_national_ Articles.
The first suggestion of what we now know as the Fifth Article was on
the second day, May 29, when the Randolph Resolution 13 read “that
provision ought to be made for the amendment of the Articles of union
whensoever it shall seem necessary.” This wording was the exact
language of Resolution 17 of the report of the Committee of the Whole.
It was adopted by the Convention on July 23. Three days later, with
the other Resolutions, it was referred to the Committee of Detail “to
prepare and report the Constitution.” On August 6, this Committee, in
the first draft of our Constitution, reported the following: “Art. XIX.
On the Application of the legislatures of two-thirds of the states in
the Union, for an amendment of this Constitution, the legislature of
the United States shall call a _convention_ for that purpose.”
We see clearly why the delegates, their minds concentrated on their
own proposed grants of _national_ powers, mentioned only the people
themselves, the “conventions” of the “Seventh” and “Fifth” Articles,
who alone can make _national_ Articles, and forgot to mention
legislatures, because the latter never can make national Articles.
_That_ kind of Article was the only thing they were _then_ thinking
about. Naturally, it then escaped their attention that, if they
proposed a wise and proper distribution of _national_ power between the
new American government and the respective existing state governments,
almost every future Article, if not every one, would be of the
_federal_ kind, which legislatures or governments could validly make,
as they had made all the Articles of the existing federation. Clearly
_for that reason_ this Article XIX never even mentioned the existing
and limited ability of legislatures.
Between this report of August 6 and August 30, the Convention was again
entirely occupied with the grants of _national_ power and the election
of the legislators to exercise it or, in other words, with what is now
the First Article. On August 30, Article XIX was adopted without any
debate.
We are now aware that the Convention was within two weeks of its end
and no one had mentioned, in what is now the Fifth Article, the state
governments or legislatures as possible makers of _federal_ Articles,
if and when _such_ Articles were to be made in the future.
It was not until September 10, Monday of the last Convention week, that
Article XIX again came up for action, when Gerry of Massachusetts
moved to reconsider it. His purpose, as he himself stated it, was to
object because it made it possible that, if the people in two-thirds
of the states called a convention, a majority of the American people
assembled in that convention “can bind the Union with innovations that
may subordinate the state constitutions altogether.” Hamilton stated
that he could see “no greater evil, in subjecting the people in America
to the major voice than the people of any particular state.” He went on
to say that he did think the Article should be changed so as to provide
a more desirable “mode for _introducing_ amendments,” namely, drafting
and proposing them to those who could make them. In this respect he
said: “The mode proposed was not adequate. The state legislatures
will not apply for alterations, but with a view to increase their own
powers. The national legislature will be the first to perceive, and
will be most sensible to, the necessity of amendments; and ought also
to be empowered, whenever two-thirds of each branch should concur, to
call a convention. There could be no danger in giving this power, as
the _people_ would finally _decide_ in the case.” (5 _Ell. Deb._ 531.)
Roger Sherman of Connecticut then tried to have the Article provide
that the national government might also propose amendments to the
several states, as such; such amendment to be binding if consented to
by the several states, namely, all the states. For reasons that will
appear in a moment, this clear attempt to enable the states, mere
political entities, and their legislatures, always governments, to
do what they might wish with the individual freedom of the American
citizen--thus making him their subject--was never voted upon. It was,
however, seconded by Gerry of Massachusetts. Its probable appeal to
Sherman, always a strong opponent of the _national_ government of
individuals instead of the _federal_ government of states, was that it
would make it difficult to take away any power from Connecticut, unless
Connecticut wished to give it up. Its appeal to Gerry, consistently a
Tory in his mental attitude to the relation of government and human
being, was undoubtedly the fact that it would permit government or
governments to do what they might wish with individual freedom. It does
not escape the attention of the average American that _our_ governments
and leaders, during the last five years, have not only displayed the
mental attitude of Gerry but have also acted as if the proposal, which
he urged, _had_ been put into what is our Fifth Article. Only on that
theory can we average Americans, with _our_ education, understand
why governments in America have undertaken to exercise and to vest
in our government a _national_ power over us, which power neither is
enumerated in the First Article nor was ever granted by the citizens
of America to their _only_ government; nor can we understand why our
leaders have assumed that governments _in_ America, which are not even
the government of the American citizens, can do either or both of
these things. We know, if governments and leaders do not, that neither
thing can ever be possible in a land where men are “citizens” and not
“subjects.”