ABILITY OF LEGISLATURES REMEMBERED
Living through the days of that Convention, we have now seen three
months and ten days of its sincere and able effort to word a
Constitution which would “_secure_ the Blessings of Liberty” to the
individual American. We have seen them spend most of their time in the
patriotic endeavor to adjust and settle how much, if any, _national_
power to interfere with individual freedom that Constitution shall give
to its only donee, the new and general government. In other words,
we have seen the mind and thought and will of that Convention almost
entirely concentrated, for those three months and ten days, upon the
Article which _is_ the constitution of government, the First Article,
with its enumerated grants of general power to interfere with the human
rights of the American citizen.
Keeping in mind the object of that intense concentration, the
First Article grants of power _of that kind_, we average Americans
note, _with determined intent never to forget_, the effect of that
concentration upon the wording of our Fifth Article up to that tenth
day of September. We note, _with determined intent never to forget_,
that, from May 30 to September 10, the _only_ maker of future changes
mentioned was the “people” of America, the most important reservee of
the Tenth Amendment, the “conventions” of the American people named in
both the Seventh and the Fifth Articles.
As this fact _and its tremendous meaning_ have never been known or
mentioned in the sorry tale of the five years from 1917 to 1922, we
average Americans are determined to dwell upon it briefly so that we
cannot escape an accurate appreciation of the short remaining story of
the one week at Philadelphia, in 1787, in relation to our Fifth Article.
Only a week earlier, _because_ the First Article did grant enumerated
powers to interfere with individual rights, the Convention had known
that the seven articles must go to the people directly to say _their_
“Yes” or “No” to those grants of the First Article. For that reason the
Convention (considering limited legislative ability to make _federal_
Articles and omnipotent ability of the “people” to make all Articles)
had decided that it MUST propose the mode of ratification by the
“people,” the “conventions” of the Seventh and the Fifth Articles. As
Marshall later authoritatively stated in the Supreme Court, the _legal_
necessity of deriving national powers from the people themselves, the
“conventions,” was _then_ known and acknowledged by all.
It was natural, therefore, up to that September 10, that a convention,
concentrated entirely upon grants _of that kind_, when wording its
Article with a mode of procedure for making future changes, should have
forgotten any changes except _of the kind_ on which its own mind was
concentrated and should have mentioned in its amending Article, up to
September 10, no maker of future changes except the people themselves,
“conventions” of the Seventh and the Fifth Articles.
And, at this point, we average Americans note, _again with intent never
to forget_, that if the one competent maker of such Articles, the
“conventions,” had remained the only maker of Articles _mentioned_
in the Fifth Article, even the great “constitutional” lawyers of 1920
would never have made the monumental error of assuming that the Fifth
Article was a grant of power (to those who made it and all the original
Constitution) to make future Articles. Even _they_ would have noticed
and _applied_ to their reading of the Fifth Article the well known
legal fact that grantors never can and never do grant to themselves
what they already have or a part of it.
Therefore, noting and remembering these significant facts, we turn
with interest to the short story of how those able Americans at
Philadelphia, their minds no longer exclusively concentrated on their
own enumerated grants, remembered that there was another maker of
Articles with _existing_ but limited ability to make _federal_ or
declaratory Articles. And, with interest, we shall learn how this last
week thought caused the Convention to change the Fifth Article by
adding a mention of that existing limited ability and prescribing the
mode of its future _constitutional_ exercise.
That we average Americans may never be misled by inaccurate statements
of the short story of how the mention of that limited ability was
added to the mention of the unlimited ability of the “people” or
“conventions” of the Fifth Article, it is fitting that the full record
of the story be given verbatim. It adds not a little to our amusement
that the story is copied from the brief of the leading “constitutional”
lawyer of 1920 who championed the validity of the Eighteenth Amendment
on the remarkable assumption and error, common to all his associates
and his opponents, that the new mention changed the Fifth Article into
a _grant_ of ability to those legislatures instead of what its author,
Madison, knew and stated that Article to be, a “mode of procedure” for
the future _constitutional_ exercise either of that existing limited
ability or the other existing unlimited ability of the “people” or
“conventions” of the Seventh and Fifth Articles. This is the record of
that September 10, as copied from that brief, beginning immediately
after Hamilton had voiced his opinion that there could be no danger in
letting Congress _propose_ an Amendment “as the _people_ would finally
decide in the case.”
“Mr. Madison remarked on the vagueness of the terms, ‘call a Convention
for the purpose’ as sufficient reason for reconsidering the Article.
How was a Convention to be formed? by what rule decide? what the force
of its acts?
“On the motion of Mr. Gerry to reconsider
“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay.
N. C. ay. S. C. ay. Geo. ay. (Ayes--9; noes--1; divided--1.)
“Mr. Sherman moved to add to the article ‘or the Legislature may
propose amendments to the several States for their approbation, but no
amendments shall be binding until consented to by the several States.’
“Mr. Gerry 2ded. the motion.
“Mr. Wilson moved to insert ‘two thirds of’ before the words ‘several
States’--on which amendment to the motion of Mr. Sherman
“N. H. ay. Mas. (no). Ct. no. N. J. (no). Pa. ay. Del. ay. Md. ay. Va.
ay. N. C. no. S. C. no. Geo. no. (Ayes--5; noes--6).
“Mr. Wilson then moved to insert ‘three fourths of’ before ‘the several
Sts.’ which was agreed to nem: con:
“Mr. Madison moved to postpone the consideration of the amended
proposition in order to take up the following,
“‘The Legislature of the U.S. whenever two thirds of both Houses shall
deem necessary, or on the application of two thirds of the Legislatures
of the several States, shall propose amendments to this Constitution,
which shall be valid to all intents and purposes as parts thereof, when
the same shall have been ratified by three fourths at least of the
Legislatures of the several States, or by Conventions in three fourths
thereof, as one or the other mode of ratification may be proposed by
the Legislature of the U.S.’
“Mr. Hamilton 2ded. the motion.
“Mr. Rutlidge said he never could agree to give a power by which
the articles relating to slaves might be altered by the States not
interested in that property and prejudiced against it. In order to
obviate this objection, these words were added to the proposition:
‘provided that no amendments which may be made prior to the year 1808,
shall in any manner affect the 4 & 5 sections of the VII article.’ The
postponement being agreed to,
“On the question On the proposition of Mr. Madison & Mr. Hamilton as
amended
“N.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. ay. Del. no. Md. ay. Va. ay.
N.C. ay. S.C. ay. Geo. ay. (Ayes--9; noes--1; divided--1.)”
II _Farrand_, 558, 559.
No American citizen, now living or in the generations to come, if
he values at all the human liberty which the entire Constitution
was established to secure, can spend too much time in reading and
understanding that short record. It is the record left by Madison
himself, even though it be copied from the brief of the leading
“constitutional” lawyer of 1920 who maintained his whole argument for
the Eighteenth Amendment on the ground that we have been “subjects” of
an omnipotent government, his clients, since the day, June 21, 1788,
when that Fifth Article was enacted by the American people to secure
“the Blessings of Liberty for themselves and their posterity.”
As we shall later find herein, it is the claim of all who believe the
new Amendment to be in our Constitution, although they have hitherto
not understood their own claim, that the words of the Article, which
appear in that short record, are the words which changed the American
individuals, free men from July 4, 1776, into subjects of an omnipotent
government, composed of the legislative governments of a fractional
part of the states. Moreover, as we shall also later learn herein,
this absurd and amazing claim is based wholly on the monumental error
of assuming, without the faintest suggestion or proffer of support
for such an assumption, that the new wording of the Fifth Article, as
proposed by Madison on September 10, changed the amending Article into
a grant of ability to make every kind of Article. The monumental error
fails to see that Madison merely added to the previous mention of the
unlimited ability of the people or “conventions” a similar mention of
the existing limited ability of the state legislative governments to
make _federal_ Articles or Articles which neither exercise nor grant
power to interfere with human freedom. Moreover, as we shall also
learn later herein, the extraordinary and unfounded assumption (that
the amending Article was changed on September 10 into a _grant_ of
ability to make Articles instead of a recognition and mention of two
existing different abilities, one of which had always been mentioned
therein) has been hitherto concurred in by every one who has challenged
the validity of the Eighteenth Amendment. _They_ have only differed
from the supporters of the new Amendment in contending that the
impossible grant, absurdly imagined to have been made by the grantors
to _themselves_ as well as to state legislatures, _was_ a _grant_ of
limited ability but did not include the ability to make an amendment
such as the Eighteenth.
When we do come later herein to the briefs and arguments of the
opponents and supporters of the supposed Eighteenth Amendment, we
shall look in vain to find therein the faintest suggestion of a
claim that there is anything in the record of September 10, 1787, to
justify their extraordinary and unfounded assumption that the Fifth
Article, on that day, was changed so as to make it a grant of power
from the “conventions” of the people to the “conventions” of the whole
American people and to the state legislatures. On the contrary, we
shall find every opponent of the supposed new Amendment making easy
the way of its supporters by joining in the common assumption of all
and predicating every argument against the new Amendment on the same
extraordinary assumption that the Fifth Article _is_ a grant of power
to the grantors and to the state governments. Not once, in any brief
or argument of the most renowned lawyers in America, shall we find
even the faintest knowledge of two facts which must be so _if_ the
Fifth Article _is_ a grant of power to the two supposed grantees. That
each of the two facts is a patent absurdity will not alter the logic
that they must be facts, _if_ the Fifth Article is a grant to those
two grantees. The first patently absurd fact is that, if the Fifth
Article is a grant, the “conventions” of 1788 granted to _themselves_,
the supposed grantors, exactly the same omnipotent power to make all
Articles, which the grantors (a supposed grantee) were exercising at
the very moment when they made the Fifth Article. The second patently
absurd fact, if the Fifth Article is a grant, is that the whole people
of America, assembled in their “conventions,” after eleven years as
free men, voluntarily relinquished that status to become, as the whole
people of America, “subjects” of the same legislative governments who
are one of the supposed donees of the absurd and imaginary grant.
This remarkable fact follows as the logical conclusion of the concept
that the “conventions” granted to the “conventions” and to the state
governments, with Congress to determine which shall exercise it,
the very omnipotent power which the people themselves (the supposed
grantors) were then exercising in their “conventions” and which eleven
years before they had denied to the British Parliament. When we later
realize that none of our modern leaders saw either absurd fact to
be the certain result of the concept that the Fifth Article _is_ a
grant, we average Americans ought certainly to be convinced that, if
we wish to keep our individual rights in any matter, it is going to be
necessary for us to understand _for ourselves_ how our Constitution
secures those rights to us.
Forewarned of such necessity, we return with renewed interest to the
examination of the record of the day on which it is assumed that
Madison suggested that the Fifth Article should be changed into a
“grant” and then proposed to the American people, so that they might
voluntarily relinquish their status as free men and become “subjects”
of a government with omnipotent ability to legislate in restraint of
their individual freedom “in all matters whatsoever.” It ought not
to detract from our amusement that this remarkable proposal of such
a “grant” (as our modern leaders see it) was to go to the American
people in each state and there be approved by that people with the
knowledge that the people in that particular state, on the occasion of
a future proposal, might not elect a single member of the legislative
governments who would exercise that omnipotent power over their every
individual right.
Our amusement is not lessened when we find that the supposed “grant”
was suggested by Madison and seconded by Hamilton. The Philadelphia
Convention was being held in the America which had just emerged from
an eight year Revolution to establish the doctrine that no government
could be omnipotent in its ability to interfere with individual
freedom. The Convention itself had devoted three months and ten days,
before the day in question, to bitter dispute about giving even
enumerated powers _of that kind_ to the American government mentioned
in the First Article. It is therefore, with great amusement _but with
serious intent never to forget_, that we note that not a single voice
was raised in the Convention either to uphold or to protest this
supposed and absurd “grant” of omnipotence to an entirely different
government. On the contrary, as we note with intent never to forget,
the newly worded Article was treated by the Convention as if every
_important_ matter in it had been settled before the state governments
were even mentioned in it as makers of the kind of Articles which they
already had the power to make, _federal_ Articles. As soon as the
newly worded Article had been suggested by Madison and Hamilton, the
Article which Madison himself describes as a _constitutional_ mode for
the exercise of existing abilities to make Articles, only one change
(utterly unimportant now) was suggested in the new wording. This was
the suggestion that the Article should not provide a _constitutional_
mode in which existing ability to interfere with slavery could be
_constitutionally_ exercised prior to the year 1808. This change
was immediately made by the Convention. Then, without the slightest
objection to any other part of the supposed absurd “grant,” the
Convention approved the newly worded Article.
From the absence of one word of protest we quite clearly realize
that no man in that Convention so misconstrued the simple statement
of Madison’s Fifth Article as to read into it an imaginary “grant”
of any ability whatever to the state legislative governments. We
realize that these men, who were accurate thinkers, knew that the
“conventions” named in this Madison Article were exactly the same
“conventions” which Philadelphia had already named in what we know
now as the Seventh Article. We realize that they knew at once, when
Madison proposed his Article, that the “conventions” named in it, like
the same “conventions” named in the Seventh, were “We, the people” of
America, named in the Preamble. And, from a moment’s reflection, we are
aware that the delegates at Philadelphia immediately knew that Madison
was not making the absurd suggestion that the American people, the
“conventions” of the Seventh and Madison’s new Article, should _grant_,
in the very “conventions” of the Seventh, to _themselves_, anything
whatever of power, either all or part of the power which they would be
then exercising in those “conventions.” From which it follows, as the
night the day, that the delegates also knew that if Madison’s Article
was not a grant by the “conventions” to the “conventions,” it was not a
grant to the “legislatures.” For which reason we will not dwell at all
upon the obvious fact that there is not the slightest suggestion of a
word of grant in the Fifth Article.
Before emphasizing the absurdity of the thought that the Americans at
Philadelphia ever intended the plain statement of the Fifth Article
to be a “grant” of power of any kind, it seems proper that we should
grasp at once what it clearly _was_ understood by them to be. Their
understanding and knowledge of its meaning become very clear to us,
when _we_ read it, as they heard it from Madison, fresh from their
great debate as to the grant of enumerated powers in their First
Article and their proposal of a ratification by “conventions” as the
only valid mode of ratification for an Article which grants power
to interfere with human freedom. We recall now that, when Madison
suggested _his_ Fifth Article to them, on September 10, the echoes
were still ringing of the sound statements of Madison and others that
Philadelphia _must_ propose a mode of ratification by the people
or “conventions” because legislatures never could be competent, in
America, to make Articles which did constitute government by granting
power to interfere with human freedom. When _we_ read Madison’s Fifth
Article, with the same statements still fresh in _our_ minds, we
realize at once how the delegates at Philadelphia recognized, in the
Madison Article, the meaning of every reference to the duties imposed
upon, not the powers granted therein, to Congress. The delegates had
met at Philadelphia with purpose and intent to draft and _propose_
constitutional Articles in their judgment best designed to secure human
liberty to Americans, and then, after they had drafted their Articles
and knew the nature of such Articles, whether _national_ or _federal_,
to _propose_ a mode of ratification in which their proposed Articles
would be made by those competent to make them.
When September 10 had come they had finished their work of drafting
their Article, which constituted government, the First Article. For the
purpose of reaching their decision as to the valid mode of ratification
for an Article of _that kind_, they had considered and discussed the
existing unlimited ability of the “people” or “conventions” to make all
Articles, and the existing limited ability of the state legislatures
to make some. The unerring decision which they had made was that
their Articles would not be validly made, because the First Article
constituted _national_ government of men, unless they proposed a mode
of ratification by the “conventions” of the American people.
We note, with intent to remember, that they were well aware that
drafting and proposing an Article did not make it valid or part of
a Constitution and that _proposing_ a mode of ratification did not
make it a valid mode, unless the ratifiers were competent to make the
proposed Article. We recall that Wilson, who appears in the brief
record of September 10, later made clear the knowledge of those at
Philadelphia that their _proposal_ of Articles and their _proposal_ of
a mode of ratification could not make either valid, that the making of
a _proposal_ is not the exercise of any power.
In the Pennsylvania convention he said: “I come now to consider the
last set of objections that are offered against this Constitution. It
is urged that this is not such a system as was within the powers of the
Convention; they assumed the _power of proposing_.... I never heard,
before, that to make a proposal was an exercise of power.... The fact
is, they have exercised no power at all; and, in point of validity,
this Constitution, proposed by them for the government of the United
States, claims no more than a production of the same nature would
claim, flowing from a private pen.” (2 _Ell. Deb._ 469-470.)
Now, if Wilson and the other delegates at Philadelphia, on September
10, knew that to make a proposal was no exercise of power, they clearly
understood that Madison’s Fifth Article, when it stated that Congress
might _propose_ an Amendment and Congress might _propose_ a mode of
ratification, was an Article which purported to grant no power to
Congress. If we recall the truth, which Madison so often expressed,
that it is the privilege of any citizen or body of citizens to propose
that existing power be exercised, we realize that, if the Fifth Article
had not mentioned Congress as the maker of either proposal, Congress
would still have had full ability to make either or both proposals
at any time. As the delegates at Philadelphia knew this as well as
we now know it, as we have been helped to our appreciation of it by
them and their statements, it is apparent how instantly they knew
that the mention of Congress, as the _proposer_ of an Amendment and
as the _proposer_ of its mode of ratification, meant that Congress
_alone_ was to be left with--_not given_--the duty which they had
assumed themselves to perform at Philadelphia. That duty, as they knew
and we now know, was to draft a proposed Article and, after it had
been worded, to examine it and its nature and (with the validity of
their ultimate proposal absolutely determined by that nature) then to
propose the Article and a mode of ratification for it which would mean
ratification by those competent to ratify an Article of _its particular
kind_. In other words, they knew that, whenever Congress performed the
duty they had just performed themselves, after an Article had been
drafted, it would be legally necessary for Congress, as it had been for
them at Philadelphia, to consider the existing and different abilities
of the “people” or “conventions” and the state legislatures to make
Articles, and from that consideration to ascertain a competent ratifier
for the particular Article they had drafted and, the validity of the
ratification to depend entirely on the accuracy of their ascertainment
and not on their own proposal of ratification, to propose a mode of
ratification in which that Article would be made by those competent
to make it. With the meaning and effect of a “proposal” so clearly
known to them all, with their own immediate recent experience in the
performance of the very duty which Madison’s Fifth Article _left_
the duty of Congress in the future, it was a simple matter for these
delegates at Philadelphia to know exactly what was the only possible
meaning of Madison’s words, when the same “shall have been ratified by
three fourths at least of the legislatures of the several states, or
by conventions in three fourths thereof, as one or the other mode of
ratification may be proposed by the legislature of the U. S.”
How accurately Madison himself knew all this, how accurately he knew
that the Philadelphia proposal would validate neither proposed Articles
nor proposed mode of ratification, and that Congress proposal in the
future would never validate either proposed Article or proposed mode of
ratification, he has not left to speculation.
It was the charge of the opponents of the proposed Constitution that
the Philadelphia Convention had exceeded its powers in proposing those
Articles. Madison defended himself and his Philadelphia associates
in _The Federalist_, Number 40, published in the New York _Packet_
on Friday, January 18, 1788. With his logical mind, he echoed the
knowledge of Wilson and his other colleagues, who had drafted and
proposed the Articles and proposed their ratification by the “people”
or “conventions” of the Seventh and the Fifth Articles. It was his
knowledge, as it was their knowledge, that the Philadelphia proposals
were, as the future Congress proposals would be, no exercise of power
and that the validity of any Article, proposed at Philadelphia or
proposed by Congress, must always depend, not _merely_ upon its being
ratified in the mode proposed respectively by Philadelphia or by
Congress, but also--and immeasurably the most important test of valid
ratification--upon its being ratified by ratifiers competent to make
the particular Article.
It was his knowledge, as it was their knowledge, as it is now our
knowledge, that if a proposed Article directly interfere with or grant
power to interfere with human freedom, as the First Article, or the
Eighteenth Amendment, it can never be validly made by government but
only by the “people” of the Tenth Amendment; the “conventions” of the
“Seventh” and “Fifth” Articles.
Among other things, in his defense of himself and his Philadelphia
associates, this is what Madison said of them: “They must have
reflected, that in all great changes of established governments, forms
ought to give way to substance; that a rigid adherence in such cases
to the former would render nominal and nugatory the transcendent
and precious right of the _people_ to ‘abolish or alter _their_
governments as to _them_ shall seem most likely to effect their safety
and happiness,’ since it is impossible for the people spontaneously
and universally to move in concert towards their object; and it is
therefore essential that such changes be instituted by some _informal
and unauthorized propositions_ made by some patriotic and respectable
citizen or number of citizens. They must have recollected that it
was by this irregular and assumed privilege of _proposing_ to the
_people_ plans for _their_ safety and happiness that the states were
first united against the danger with which they were threatened by
their ancient government; that committees and congresses were formed
for concentrating their efforts and defending their rights; and that
_conventions_ were _elected_ in _the several states_ for establishing
the constitutions under which they are now governed;... They must have
borne in mind that as the plan to be framed and proposed was to be
submitted _to the people themselves_, the disapprobation of the supreme
authority would destroy it forever; its approbation blot out antecedent
errors and irregularities.”
And so we come from that September 10, 1787, with the accurate
knowledge that Madison then proposed and Hamilton seconded and all the
delegates adopted the first amending Article which ever _mentioned_
the state governments as makers of any future Amendments. And we know
that they did so with the unmistakable intent and understanding that
it changed not at all the existing inability of any governments
in America to create, for themselves or for other governments, any
_national_ power to interfere with the citizens of America in the
exercise of their human freedom. And we also come from that record with
the certain knowledge that the Madison Fifth Article of September 10
merely provided that, when future Articles were suggested, the Congress
should play the part which the Philadelphia Convention was playing,
which part involved no exercise of power of any kind, and that such
part of Congress should consist in merely _proposing_ an Article and
_proposing_ its mode of ratification. And we also come from that day
with the equally certain knowledge, which we do not intend to forget,
that Madison himself knew clearly that the valid ratification of future
Articles _would_ depend, as he knew the valid ratification of the
Philadelphia Articles _did_ depend, not on the fact that ratification
was in the mode proposed but on the fact that the proposer of a mode of
ratification should propose a mode in which the proposed Article could
be made by those competent to make an Article _of its particular kind_.
For these reasons, if the supporters of the Eighteenth Amendment expect
us, now educated with those earlier Americans up to and including
the record of September 10, 1787, to believe that the Madison Fifth
Article, first worded on that day, purported to grant or was understood
and intended by Madison and his colleagues to grant any power to the
state legislative governments _in_ America over ourselves, the citizens
of America, we shall hereafter listen, with naught but amusement, to
these amateur “constitutional” thinkers and their effort to change
legal fact into fiction by assumption. Confirmed by our education with
Madison and the others who had all to do with the wording and the
making of that Fifth Article of September 10, 1787, we recognize, even
if these “constitutional” thinkers do not recognize, that we ourselves
are the “conventions” of the Fifth Article in which sit the American
people to exercise their exclusive ability to grant to government any
power to interfere with their individual freedom. We have now, even
if these “constitutional” thinkers never have had, the knowledge of
the legal necessity that power _of that kind_ must be derived from
ourselves, the “people” of the Tenth Amendment and the “conventions”
of the Seventh and the Fifth Articles--the necessity in 1787 “felt
and acknowledged by all.” We know, as Marshall knew in one of those
“conventions” of 1788 and as he knew and stated on the Bench of the
Supreme Court, that there is but one way in which we, the citizens of
America, can act safely or _effectively_ or wisely on the subject of
new interference with our individual freedom, by assembling in our
“conventions,” the “conventions” of the Fifth as well as the Seventh
Article.
And so, with our knowledge and certainty that the Madison Fifth Article
of September 10 never could change the status of the free American
into that of the subject of an omnipotent government, we come to the
last business day of the Philadelphia Convention, September 15, the
only other day on which the Madison Fifth Article, with its _mention_
of legislative ability to make _federal_ Articles but not _national_
Articles, was ever considered at Philadelphia.
On that day the Committee of Style reported the seven Articles which
we now know as our Constitution. The Madison amending Article, except
that “the legislature of the U. S.” was called “the Congress,” was
identical with that of September 10. As it is important that we
Americans shall never be told anything about the record of September
10 or September 15, in relation to this Madison Fifth Article, which
is not something that _is_ in the record, that we may be given no
distorted version of what happened in that Convention about the only
Article which ever mentioned state “legislatures” as makers of _some_
future Articles, we shall have again the pleasure of reading the entire
record of September 15. Again we read it from the brief of the great
“constitutional” lawyer of 1920 who argued on the assumption that this
Article, worded by Madison, was intended to make us and did make us,
the citizens of America, the subjects of an omnipotent government,
composed mostly of the client governments whom he represented in the
Court Room of 1920. This is his record of the full story of September
15 in relation to the Fifth Article of Madison, from which record this
“constitutional” lawyer and his associates hope to derive--how we know
not--some support for this belief and this argument.
“Mr. Sherman expressed his fears that three fourths of the States might
be brought to do things fatal to particular States, as abolishing
them altogether or depriving them of their equality in the Senate. He
thought it reasonable that the proviso in favor of the States importing
slaves should be extended so as to provide that no State should be
affected in its internal police, or deprived of its equality in the
Senate.
“Col. Mason thought the plan of amending the Constitution exceptionable
and dangerous. As the proposing of amendments is in both the modes to
depend, in the first immediately, and in the second, ultimately, on
Congress, no amendments of the proper kind would ever be obtained by
the people, if the government should become oppressive, as he verily
believed would be the case.
“Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to
require a Convention on application of two thirds of the Sts.
“Mr. Madison did not see why Congress would not be as much bound to
propose amendments applied for by two thirds of the States as to call a
Convention on the like application. He saw no objection however against
providing for a Convention for the purpose of amendments, except only
that difficulties might arise as to the form, the quorum etc. which in
Constitutional regulations ought to be as much as possible avoided.
“The motion of Mr. Govr. Morris and Mr. Gerry was agreed to nem: con
(see: the first part of the article as finally past)
“Mr. Sherman moved to strike out of art. V. after ‘legislatures’ the
words ‘of three fourths’ and so after the word ‘Conventions’ leaving
future Conventions to act in this matter, like the present Conventions
according to circumstances.
“On this motion
“N.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. no. Del. no. Md. no. Va. no.
N.C. no. S.C. no. Geo. no. (Ayes--3; noes--7; divided--1.)
“Mr. Gerry moved to strike out the words ‘or by Conventions in three
fourths thereof’
“On this motion
“N.H. no. Mas. no. Ct. ay. N.J. no. Pa. no. Del. no. Md. no. Va. no.
N.C. no. S.C. no. Geo. no. (Ayes--1; noes--10.)
“Mr. Sherman moved according to his idea above expressed to annex to
the end of the article a further proviso ‘that no State shall without
its consent be affected in its internal police, or deprived of its
equal suffrage in the Senate’
“Mr. Madison Begin with these special provisos, and every State will
insist on them, for their boundaries, exports, etc.
“On the motion of Mr. Sherman
“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. ay. Md. no. Va. no.
N.C. no. S.C. no. Geo. no. (Ayes--3; noes--8.)
“Mr. Sherman then moved to strike out art. V. altogether
“Mr. Brearley 2ded the motion, on which
“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. divd. Md. no. Va. no.
N.C. no. S.C. no. Geo. no. (Ayes--2; noes--8; divided--1.)
“Mr. Govr. Morris moved to annex a further proviso--‘that no State,
without its consent shall be deprived of its equal suffrage in the
Senate’
“This motion being dictated by the circulating murmurs of the small
States was agreed to without debate, no one opposing it, or on the
question, saying no.”
11 _Farrand_ 629-631.
At once we notice with interest that these men, renowned as the
marvelous leaders of a people better acquainted with the science of
government than any other people in the world, men who have spent
three entire months and fifteen days in their wonderful effort to
frame a constitution which will secure “the Blessings of Liberty” to
all American individuals and their posterity, still have no knowledge
whatever, the weird and marvelous knowledge of 1917 and 1920, that
this Madison Fifth Article gives to the state governments the very
omnipotence which the American people, by a successful Revolution, had
just wrested from the British Parliament. We note with interest Mason’s
objection to the Madison “mode of procedure” in which may thereafter
be exercised the limited ability of these very state governments to
make _federal_ Articles and the unlimited ability of the people or
conventions to make _national_ Articles. Mason’s objection, having
direct reference to the grant of _national_ powers in the First Article
and his fear (the continued and expressed fear for the next two years
in the “conventions” of the Seventh and the Fifth Articles) that the
people may find these _enumerated_ powers oppressive, is that, if the
people _do_ find them oppressive, Congress, which has these powers,
will never _propose_ an Amendment to take any of these powers away from
Congress. For which reason Morris and Gerry moved to amend the Article
so that, if Congress does not propose an Amendment for which there
seems to be a demand, the legislatures of two thirds of the states may
insist that Congress call a convention and that such convention may
_propose_ an Amendment. This suggestion was carried.
We next find Sherman moving to strike out the words “three fourths”
after the word “legislatures” and after the word “conventions.” This
motion was defeated. We next find, _and we fix firmly in our mind with
intent never to forget_, that Gerry moved to strike out of Madison’s
Article all reference to the “people” of the Preamble and the Tenth
Amendment, the “conventions” of the Seventh and the Fifth Article,
as the makers of any future Articles or changes in the Constitution.
His motion was “to strike out the words ‘_or by conventions in three
fourths thereof_.’”
As _almost_ every one, during the last five years, including the
sponsor of the Eighteenth Amendment in the House of Representatives,
seems to have had an edition of our Constitution, in which the Fifth
Article does not contain these words, and as _everyone_, during the
same five years, has argued and acted as if these words were not in the
Fifth Article or have no meaning whatever of the slightest importance,
we intend to note _and never forget_ that Gerry’s motion to strike
these words out was beaten by a vote of ten to one.
As we know, the “people” of America _themselves_ are identified
by the word “conventions” in this Fifth Article, just as they are
identified by the same word in the Seventh Article. As we know,
_we ourselves_--the posterity of the “people” of the Preamble--are
identified by this word “conventions” in the Fifth Article, just as we
are identified in the Tenth Amendment as the most important reservee
thereof by the word “people.” Wherefore our interest in this motion
of Gerry and its overwhelming defeat is only exceeded by our absolute
amazement, for the last five years, at the universal ignorance of the
fact that it _was_ defeated and of the fact that _we_ are mentioned
in the Fifth Article as the only competent makers of any new Articles
which either directly interfere or grant power to interfere with our
individual freedom.
We do not know, and to an extent we do not care, what was the purpose
of Gerry. Gerry was always an opponent of a Constitution which vested
_national_ power in a general government. He was an advocate of the
continued complete independence of each state and its government and of
a mere _federal_ union of states with a purely _federal_ constitution.
He was also always a consistent Tory in his mental attitude as to the
relation of human being to government. If he had been successful in
striking out any mention of ourselves, the “people” or “conventions,”
leaving only the mention of the state legislatures, with their existing
ability to make _federal_ Articles, it would have been impossible
that any further _national_ power (beyond the grants of the First
Article) be vested in the general government or taken from each state
government, as only we ourselves could make _national_ Articles like
the First. We surmise that a mixture of his Tory mental attitude and
his opposition to a general national government (which minimized the
importance and diminished the independent sovereignty of each state
government) prompted his motion. That his motion was overwhelmingly
defeated is the only important fact for us American citizens. We shall
not forget it even if our leaders and our “constitutional” thinkers
forget it and ignore it.
We have no further interest in the short record of that September
15. No other change was made in the Madison Fifth Article except
to take out of it any _constitutional_ mode of procedure for the
exercise of the existing ability of ourselves, the “people” or
“conventions,” to deprive any state of an equal representation in the
Senate with every other state. We still can do that, but we have no
_constitutional_ mode of procedure under the Fifth Article by which
we can exercise our ability to do it. This change was not, however,
as so many have absurdly thought, an exception to an imaginary
power which we ourselves, the “conventions” of the Seventh Article
and the “people” of the Preamble and the Tenth Amendment, in those
very “conventions,” “granted” to ourselves, the same “people” and
“conventions” mentioned in the Fifth Article. It was a recognition of
our existing ability, about to be exercised in those “conventions,”
the ability of the supreme will in America to deprive any state of its
equal representation in the Senate; and it was our own exclusion of
that ability from any _constitutional_ exercise. The reflecting mind
will remember that, in the heated arguments at Philadelphia, there was
strong sentiment in favor of asking us, the people of America, the
“conventions” of the Seventh Article, to exercise our exclusive ability
in that very respect and make the Senate a body composed of members
elected from larger proportions of the people than the members of the
House of Representatives. It was the recollection of that effort which
prompted the request that our exclusive ability to do that very thing
should not be provided with a _constitutional_ mode of future exercise.
We average Americans may now leave, in our present education, the
entire story of that wonderful Convention at Philadelphia. We leave
it with a knowledge of our Constitution we never had until we had
lived with those Americans through the actual record of those three
months and seventeen days from the end of May to September 17, 1787.
We bring from it a knowledge that brooks no contradiction. We are
certain that nothing in any of the Articles proposed at Philadelphia
purported to give the state legislatures any power of any kind
whatever, in the Fifth Article or anywhere else, either to interfere
with the individual freedom of the American citizen or to grant the
power of such interference to themselves or to our only government, the
Congress. We bring from that Convention the knowledge that, _unless_
something in the conventions of the American people, the “conventions”
of the Seventh Article _and the Fifth Article_, changed the free men
of America, the citizens of America, into subjects of an omnipotent
legislative government, we ourselves in 1923 are still the citizens of
America and possessors of the supreme will in America and are subjects
of no government or governments in the world.