CONVENTIONS CREATE GOVERNMENT OF MEN
The Constitution is a written instrument. As such its meaning does
not alter. That which it meant when adopted it means now. _Being a
grant of powers to a government its language is general._... While the
powers granted do not change, they apply from generation to generation
to all things to which they are in their nature applicable. This in
no manner abridges the fact of its changeless nature and meaning.
Those things which are within its grant of power, as those grants were
understood when made, are still within them, and those things not
within them remain still excluded. (Justice Brewer, in the Supreme
Court, South Carolina v. United States, 199 _U. S._ 437, at p. 448.)
It is not only the same in words, but the same in meaning, and
delegates the same powers to the government, and reserves and secures
the same rights and privileges to the citizen; and as long as it
continues to exist in its present form, it speaks not only in the same
words; but with the same meaning and intent with which it spoke when
it came from the hands of its framers, and was voted on and adopted by
the people of the United States. (Scott v. Sandford, 19 _How._ 393, p.
426.)
From which common sense statements of what always has been both
reason and law, we know that whatever the Fifth Article meant to
those who made it, in the conventions named in it as well as in the
Seventh Article, it means today. There is no better way in which
we can grasp its meaning to the American people assembled in those
conventions, than by sitting with them and reading it as they read
it, with their fresh knowledge of all the wonderful things in which
they had participated from the Statute of ’76 to the proposal from
Philadelphia of 1787. As we have just lived through all that period
with them, we are in a wonderful position to read it and understand
it as they understood it. Moreover, we are in a wonderful position to
listen to the statements of the men in those “conventions.” In those
statements, whether by advocates or opponents of the Constitution, we
shall find the invincible negation--without one dissent--of the absurd
_assumption_ that Madison’s Fifth Article is a “_grant_” of any ability
_to make_ Articles. In those statements, we shall find all discussion
of that Fifth Article centering upon the one question, i.e., whether
it provides a practical mode of procedure in which the exclusive
ability of the “people” or “conventions” can defend individual rights
by _withdrawal_ of some part of the power of interference therewith
granted in the First Article. Mason had pointed out at Philadelphia
that the procedural provisions of the Fifth Article--_and it consists
entirely of procedural provisions for the exercise of existing
powers_--_left_ the drafting and proposal of Amendments entirely to
governments. For which reason, in the “conventions,” Henry and all the
great opponents of the Constitution argued that, if the individual
Americans found the granted _national_ powers of the First Article
dangerous to human liberty, the “people” or “conventions” would never
get the _constitutional_ opportunity to exercise their ability to
withdraw.
“You”--the “you” being the individual Americans assembled in one
convention--“therefore, by a natural and unavoidable implication, give
up your rights to the general government.... If you give up these
powers,” the enumerated powers of the First Article, “without a bill of
rights, you will exhibit the most absurd thing to mankind that ever the
world saw--a government that has abandoned all its powers--the powers
of direct taxation, the sword, and the purse. You have disposed of
them to Congress, without a bill of rights--without check, limitation,
or control. And still you have checks and guards; still you keep
barriers--pointed where? Pointed against your weakened, prostrated,
enervated state government! You have a bill of rights to defend you
against the state government, which is bereaved of all power, and yet
you have none against Congress, though in full and exclusive possession
of all power! You arm yourselves against the weak and defenseless,”
the state legislatures mentioned in the Fifth Article, “and expose
yourselves naked to the armed and powerful. Is not this a conduct of
unexampled absurdity?”
So thundered Henry in the Virginia convention. (3 _Ell. Deb._ 446.)
“To encourage us to adopt it, they tell us that there is a plain,
easy way of getting amendments. When I come to contemplate this part,
I suppose that I am mad, or that my countrymen are so. The way to
amendment is, in my conception, shut. Let us consider this plain,
easy way.” Then follows the verbatim statement of the Madison Fifth
Article as proposed from Philadelphia. “Hence it appears that three
fourths of the states must ultimately agree to any amendments that
may be necessary. Let us consider the consequence of this. However
uncharitable it may appear, yet I must tell my opinion--that the most
unworthy characters may get into power and prevent the introduction
of amendments. Let us suppose--for the case is supposable, possible,
and probable--that you happen to deal those powers to unworthy hands;
will they relinquish powers already in their possession, or agree to
amendments? Two thirds of the Congress, or of the state legislatures,
are necessary even to propose amendments.... To suppose that so large
a number as three fourths of the states will concur is to suppose that
they will possess genius, intelligence, and integrity, approaching to
miraculous. It would indeed be miraculous that they should concur in
the same amendments, or even in such as would bear some likeness to
one another; for four of the smallest states, that do not collectively
contain one tenth part of the population of the United States, may
obstruct the most salutary and necessary amendments. Nay, in these four
states, six tenths of the _people_ may reject these amendments....
So that we may fairly and justly conclude that one twentieth part of
the _American people_ may prevent the removal of the most grievous
inconveniences and oppression, by refusing to accede to amendments.
A trifling minority may reject the most salutary amendments. Is this
an easy mode of securing the public liberty? It is, sir, a most
fearful situation, when the most contemptible minority can prevent
the alteration of the most oppressive government; for it may, in many
respects, prove to be such.” (3 _Ell. Deb._ 48.)
So thundered Henry against the weakness of the Madison procedure
in which only by proposal from governments could there be
_constitutionally_ evoked the _exclusive_ ability of the citizens
of America to dictate how much power to interfere with individual
freedom should be left for the citizens of each state to use in
governing themselves, and how much power _of that kind_ should be
retained by the individual people of America themselves. Henry was
opposing a Constitution in which the individual people of America
were dictating that their general government, the Congress, should
have only the enumerated powers of that kind which are in the First
Article. In it, they were dictating that each state government, except
as the American people forbade it, should have just so much _of that
kind of power_ as the citizens of that particular state should grant
that government. And in it, they were dictating that the people of
America themselves, the most important factor and reservee of the
Tenth Amendment, should retain all other power _of that kind_ to be
granted only by themselves, the “conventions” of the Madison Fifth
Article. Throughout all his thunder against that Constitution, Henry,
like every other opponent of that Constitution, never questioned that
this was the exact distribution of power to interfere with individual
freedom which _was_ dictated in the Constitution. His only complaint,
and their only complaint, was that the Madison Fifth Article, _because_
its constitutional procedure could only be evoked by a proposal from
governments, was no protection to human liberty against the granted
power _of that kind_ in the First Article. The absurd thought of our
modern “constitutional” thinkers (contradicting the plain statement of
the Tenth Amendment and contradicting _everything_ that was said in the
“conventions” that made the Fifth Article) is that the Article itself
is a “_grant_” of omnipotent power to governments (the legislative
governments of the states) to interfere with individual freedom.
When we contrast the knowledge of Henry and his colleagues with the
modern absurdity, we echo Henry’s words and exclaim, “We suppose
that we are mad, or that our modern constitutional thinkers are so.”
If Henry had read into that Fifth Article, if the opponents of the
proposed Constitution had read into it, any “_grant_” of ability to
state governments, certainly it was an absurdity for him to refer to
those governments as “weakened, prostrated, enervated” by the proposed
Constitution.
And so, educated in the experience of those Americans who assembled
in those “conventions” named in the Seventh and Fifth Articles, we
sit with them in the conventions of that earlier day and read that
Fifth Article with them, while they decide to make it with the six
other Articles. Living through their experience, like them we have
become “a people better acquainted with the science of government than
any other people in the world,” so far as government is intended to
secure _individual_ liberty and happiness. When we sit with them, we
intend not to forget, as they never did forget in those conventions,
that this was the sole purpose of the Constitution they considered and
made, the purpose of securing _individual_ liberty and happiness. In
this respect, they differed in their whole philosophy of government
with the new school of thought that, in our day, has its different
manifestations of exactly the same philosophy of government on the
part of the Bolshevik in Russia and the minority in America which
has dictated that government enactment of the new constitution of
government, known as the Eighteenth Amendment.
The Americans of ’76 and ’87 set the individual liberty and freedom
of man above everything in this world except the Divine Will of the
Creator of man. In the Preamble of their Constitution, they echo the
declarations of their Statute of ’76. Their creed was that the laws of
right and wrong are immutable; that the Creator made the individual
man and granted human freedom to him; that such freedom is inherently
subject only to the Divine Will, the immutable law of right and
wrong, but that it may voluntarily become subject, by the will of the
individual man, to the exercise of powers of interference which only he
and his fellow men themselves can ever validly grant to government.
“But what is government itself, but the greatest of all reflections on
human nature? If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which is to be
administered by men over men, the great difficulty lies in this: You
must first enable the government to control the governed; and in the
next place, oblige it to control itself.” (Madison or Hamilton, _Fed._
No. 51.)
When we sit in the conventions of 1787 and 1788 with the Americans
who had this common concept of the only purpose of government of men,
their concept is our own as we read with them the language of the Fifth
Article. And it is impossible for us, as it is impossible for them, to
find concealed in that language the thought of a “grant” to government,
a “grant” which would challenge this concept of the very purpose of
government. They are sitting in “conventions” assembled to determine
whether American individuals will enter into the new society of men,
which is to be America. They have received the Fifth Article from
Americans in Philadelphia, who have accompanied the proposal of that
Fifth Article with a letter which states, “Individuals entering into
society must give up a share of liberty, to preserve the rest.” This
statement is recognized by the Americans, in the “conventions” where
we sit, as the exact statement of the concept of the sole purpose of
a government of men. With that concept and that letter before us, how
can we or the Americans with whom we sit find in the Fifth Article the
remarkable idea that Americans, entering the society of America, are
to give up all their liberties to the state governments in order that
Americans may preserve the rest of their liberties?
In these modern days, however, there has asserted itself, in Bolshevik
Russia and in the America of which we are the citizens, two distinct
manifestations of an entirely different concept of the purpose of
government than was the concept of the Americans in the “conventions.”
Although the manifestation of the new concept by the Bolshevik in
Russia has been different from the manifestation of the new concept
by an aggressive and organized minority in America, the new concept,
at the bottom of each manifestation, is exactly the same. It is the
concept that the purpose of constituting a government of men is to
secure the welfare of the state or community or nation and not the
liberty and happiness of the individuals who compose the nation. This
is the exact concept of the Bolshevik Russian and the Eighteenth
Amendment American. To neither of them would the words of that letter
from Philadelphia convey the slightest meaning, the words “individuals
entering into society must give up a share of liberty, to preserve the
rest.” In their mutual concept, the individual has no liberty which
government need respect. In the Bible of their concept, men cannot
find the words which declare the basic American principle, that every
just power of government must come from the individuals who are to
be governed by its exercise. It is, however, a misnomer to call this
common concept of the Bolshevik Russian and the Eighteenth Amendment
American a _new_ concept. It is identical with the old concept known
as “Socialism,” the concept that community welfare, the prosperity
and power and strength of a nation, are more important things than
individual liberty and happiness and enjoyment of human freedom. It
is a concept which sets the state (a political entity created by men)
and the welfare of the state above what the Americans of ’76 and ’87
knew and proclaimed to be superior to all human creations, namely,
the individual man, the noblest creation of the Divine Creator. In
other words, the common concept of the Bolshevik Russian and the new
Amendment American is but the reaction to the century-old concept whose
repudiation was the main theme of the Declaration of Independence, the
concept that individual men, the creation of God, are made for kings or
governments or political entities.
To those who hold such a concept there comes no shock when they are
asked to imagine that the language of the Fifth Article implies a grant
of ability to the state governments to do what those governments will
with the liberties of the citizens of America. But we are sitting in
“conventions” of Americans of a different type, Americans who, eleven
years earlier, have repudiated forever the concept that men are made
for kings or governments or political entities. And, if we wish to know
what the Americans in these conventions think of the concept of the
Bolshevik Russian and the Eighteenth Amendment American, we get our
wish from the man who wrote the language of the Fifth Article.
“We have heard of the impious doctrine in the Old World,” the
reactionary doctrine of modern Russia and of our own aggressive
minority, manifested in two different disguises, “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?... As far as the sovereignty of the states can not
be reconciled to the happiness of the people, the voice of every good
citizen must be, Let the former be sacrificed to the latter. How far
the sacrifice is necessary, has been shown. How far the unsacrificed
residue will be endangered, is the question before us.”
This is the language of Madison, in _The Federalist_, Number 45, asking
the individual Americans to make the Constitution to secure their
individual happiness. It will amaze us later herein to hear the thought
of our modern “constitutional” thinkers that his Fifth Article makes
the state governments (from whom that Constitution took sovereignty to
secure the individual happiness of the American citizen) a supreme and
omnipotent government of the American citizens, a government knowing no
will but its own. Meanwhile let us forget this latter day nonsense and
breathe again the real American atmosphere, where individuals, entering
a society, give up a share of their liberty, to preserve the rest. Let
us sit with the real “constitutional” thinkers of America as they sat
in the conventions and read with them the Fifth Article worded by
Madison. This is what they read:
ARTICLE V
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate.
Sitting with these Americans, in _their_ “conventions,” we note
immediately, as they note, that the Article names _themselves_. And we
note, as they note, that it names themselves, the individual American
citizens, the “people” of the Preamble and the Tenth Amendment, by
exactly the same name, “conventions,” as in the Seventh Article and
as in the Resolution of the Philadelphia Convention, _which proposed
the only valid mode of ratification for the constitution of government
of men in the First Article_, the mode which required ratification by
the individual Americans themselves, the “conventions” of the Seventh
and the Fifth Articles. _We_ cannot help noting it--as we intend never
to forget it--because _we_ are sitting with them, as the people of
America, in the very “conventions” so named in the Seventh Article.
Having their vital and accurate knowledge of the difference between
_federal_ and _national_ Articles, that only the latter kind exercises
or grants power to interfere with individual human freedom, we
recognize at once why the state legislatures are also mentioned in
the Fifth Article, although they never can make _national_ Articles.
We know it is because those “legislatures,” as the Tenth Amendment
expressly declares, retain their existing ability to make _federal_
Articles or Articles which neither exercise nor grant power to
interfere with individual freedom. And, sitting in those “conventions,”
where Hamilton also sits, we recall his remarkable prophecy, just
made to us in _The Federalist_, as we were about to enter the
“conventions” with the other Americans therein. “For my own part, I
acknowledge a thorough conviction that any amendments which may, upon
mature consideration, be thought useful, will be applicable to the
organization of the government, _not to the mass of its powers_.”
(_Fed._ No. 85.) In that absolutely accurate advance knowledge of
the complete history of constitutional amendment from 1789 to 1917,
we recognize the motive which prompted Madison _and Hamilton_,
on September 10, 1787, to add the mention of those legislative
governments to the Fifth Article mention of the _exclusive_ ability
of the people or “conventions” to make all future Articles which
_do_ relate to the “mass of its powers” to interfere with individual
freedom conferred upon the one government of America. We understand
that these legislative governments are mentioned in the Fifth Article,
which we are now reading in the “conventions” of old, because those
“legislatures” have an existing ability to make _federal_ Articles
which relate to other things than the _national_ power of government to
interfere with individual freedom.
Having thus satisfied ourselves, in those conventions, that we
ourselves, the “people” of America, _are_ mentioned in the Fifth
Article as the sole makers of any future Article which exercises or
grants power to interfere with our individual freedom, we turn with
interest to the procedure which the Article establishes as the only
_constitutional_ mode of procedure in which that exclusive ability of
our own may hereafter be evoked to exercise and be exercised.
From the language of the Article itself, we know at once that it is
simply the statement of a mode of procedure in which our own unlimited
ability or the limited ability of the state legislatures, when the
occasion seems to arise for the respective exercise of either ability,
are hereafter to be evoked by some body of men, playing the part
which the Philadelphia Convention has just played in evoking our own
exclusive ability, the ability of the “people” or “conventions.”
Outside the language of the Fifth Article itself, many other things
make that fact clear to us. For instance, we recall what Madison has
just told us. He had written this Article at Philadelphia. Then,
asking the American people to prescribe this _constitutional_ mode
of procedure for the future exercise of either respective existing
ability, he has explained to us, just before the convention in which we
sit, what the Fifth Article means.
“That useful alterations will be suggested by experience, could not but
be foreseen. It was requisite, therefore, that A MODE FOR INTRODUCING
THEM should be provided. The mode preferred by the Convention seems to
be stamped with every mark of propriety. It guards equally against
that extreme facility, which would render the Constitution too mutable;
and that extreme difficulty, which might perpetuate its discovered
faults. It, moreover, equally enables the general and State governments
TO ORIGINATE the amendment of errors, as they may be pointed out by the
experience on one side, or on the other.” (_Fed._ No. 43.).
Sitting in the conventions of more than a century ago, we are naturally
uninfluenced (in our reading of plain English) by the story of a
century which has not even yet begun, the century that later began in
1800. And so we get from his own words the knowledge that the author
of the Fifth Article knew it to be nothing but a _constitutional_
mode of procedure, for the future exercise of either ability to make
Articles. We see that the mode _leaves_ with either “the general and
state governments” the ability to _propose_ an Amendment to those
with existing power to make the particular proposed Amendment. And we
note, with intent to remember, that the author of the Fifth Article,
while he tells us about this reservation of existing abilities to
_propose_ amendments, pointedly does _not_ tell us that the Article
_grants_ any power to any government or governments to _make_
Amendments. In other words, we know that the Fifth Article _reserves_
to the general government and to the state governments exclusively
what _otherwise_ they and every one else would have had--what Madison
himself called “the unauthorized privilege of any respectable citizen
or body of citizens”--the ability _to propose_, but that it does not
_grant_ to any of those governments or all of them collectively the
ability which none of them ever had or can have, the ability _to
make_, constitutional Articles of a _national_ kind, which relate to
interference with individual freedom. With this knowledge confirmed
by the clear statement of the author of the Fifth Article, we read
with interest its procedural provisions about the originating of new
Articles, about their drafting and their proposal and the proposal of a
mode of ratification for them, after they have been drafted and their
nature has determined who can make them.
Sitting in those conventions of old, we are in the company of many of
the men who were at the Philadelphia Convention. In Virginia we see
Madison and Randolph and Mason and others; in New York we see Hamilton
and others; in Pennsylvania we see Wilson and others; in South Carolina
we see the Pinckneys and others. That is our experience in all the
conventions. On all sides, among the American people assembled therein,
are those familiar with and talking about the work at Philadelphia and
the great debate there, in which was _ascertained_, from the character
of the Articles drafted there, _which_ maker of Articles, the state
legislatures, with their existing ability to make federal Articles,
or the “people” themselves, the “conventions,” with their existing
unlimited ability to make all Articles, could make the Articles drafted
and about to be proposed. These men, by their presence and their
words, remind us how the nature of their First Article, the fact that
it constituted government to interfere with human freedom, compelled
the announcement of the decision that legislative governments could
never make _that_ kind of an Article. These men, by their presence
and their words, remind us how they reached the ascertainment of the
fact which _compelled_ their Proposing Resolution _to propose_ a mode
of ratification by the “people” themselves, by the “conventions” of
the Seventh and the Fifth Articles. They remind us, as one of the men
with us later said in the Supreme Court, that all assembled in our
“conventions” feel and acknowledge the legal necessity that every power
to interfere with individual freedom must be derived by direct grant
from the people. And, sitting in those conventions with them, where we
all read the Fifth Article they are asked to make, we recognize _with
certainty_ that it prescribes that the Congress shall do exactly what
the Philadelphia Convention has just done--propose, and nothing more.
The words of the Fifth Article tell us that only Congress shall draft
and propose a new Article, just as the Philadelphia Convention drafted
and proposed its new Articles; that, after Congress has drafted its new
Article and is about to propose it, just as the Philadelphia Convention
did, _when it exercised no power at all_, Congress shall examine
carefully the nature of the drafted Article and, having ascertained
by such examination _which_ existing ability to make Articles (the
limited ability of legislative governments or the unlimited ability of
the “people” or “conventions”) is competent to make that particular
Article, Congress shall propose ratification by the ability which can
make the proposed Article.
We are not misled because the Article prescribes this one
_constitutional_ mode to evoke the existing limited ability or the
existing unlimited ability. Providing a CONSTITUTIONAL mode for
the exercise of either does not lessen one ability or increase the
other. By reason of our education, we know the difference between the
_revolutionary_ exercise of existing power and the _constitutional_
exercise of existing power. Because we have become of the “people
better acquainted with the science of government than any other
people in the world,” we know that to do something in a revolutionary
manner does not necessarily mean to do it by bloodshed or on the
battle-field. We know that to do something in a revolutionary manner
means to do it outside of any legally prescribed mode of procedure for
the exercise of existing power. We know that to do the same thing,
in a _constitutional_ mode, is to do it in some mode prescribed by
human law or constitution. And that is why we understand, as did the
men with whom we are sitting in those conventions, that Congress, in
the future, is to do exactly what the Philadelphia Convention did
_and nothing more_. Congress is to do it _constitutionally_ (where
the Philadelphia Convention did it outside of any human law and in
a _revolutionary_ manner) _because_ the Fifth Article commands that
Congress alone shall do it. Congress, when doing it, will be exercising
no power. The Philadelphia Convention exercised no power when it did
exactly the same things. And, when Congress does it, Congress will be
bound, as Philadelphia was bound, to ascertain and propose the mode
of ratification by which the proposed Article will be ratified by
ratifiers competent to make that particular kind of an Article.
As we sit in the “conventions” and keep clearly in our mind that the
“conventions” and the “state legislatures” (both of which are mentioned
in the Fifth Article) each have existing but very different abilities
to make Articles, every part of the language of the Fifth Article
confirms our knowledge that the whole Article is no “grant” of power
but is a “constitutional” mode for the exercise of existing powers.
Long after the conventions in which we sit, the Supreme Court paid
the tribute to those who wrote the Fifth Article that they were
“masters of apt, precise and classic English.” Keeping this thought
in mind, our attention is directed to the three-time use of the one
word “propose” in the Fifth Article. We know that to use the same word
three times in one sentence is very poor English _unless_ there is a
distinct and definite intent and purpose that the meaning each time
shall be _identically_ the same. Such definite intent and purpose
is the only deduction from what would otherwise be the inexcusable
tautology of the language of the Fifth Article. So, when we read that
Congress “shall _propose_ amendments” or shall “call a convention for
_proposing_ Amendments” and that “one or the other mode of ratification
may be _proposed_ by the Congress,” we know with certainty that each
use of the word “propose” is intended to convey an identical shade of
meaning. From which we know that, as the _proposal_ of a new Article
(by Congress or a Convention) will be a mere proposal and will not
make the proposed Article valid, so also the Congress _proposal_ of
a mode of ratification will remain a mere proposal and will not make
that proposed mode valid for that proposed Article, unless its proposed
ratifiers are competent to make that particular kind of an Article.
This is what they had just known at Philadelphia about their own
proposals (both of Articles and of mode of ratification) to us as we
sit in the “conventions.” And so, in these conventions, we know the
proposals mentioned in the Fifth Article to be identical (in nature)
with the proposals made from Philadelphia. We know the procedure
outlined in the Fifth Article to be exactly the same procedure as has
just been followed at Philadelphia. We know that our ratification (in
these “conventions”) of that procedure will be our approval of the
procedure they followed at Philadelphia and will be its prescription
as the CONSTITUTIONAL procedure hereafter to be followed when either
existing ability, that of the state governments or that of ourselves in
“conventions,” is to be hereafter evoked to exercise. From all of which
we recognize that, if Congress should propose a mode of ratification
by state legislatures and the proposed Article is a grant of power
to interfere with the individual liberty of the American citizen,
the state legislatures will remain just as incompetent to make that
Article as they were known to be at Philadelphia when Madison and his
colleagues held them to be incompetent to make their proposed Article
of that kind, the First Article. And so we understand that the mere
Congress proposal of a mode of ratification (for _such_ an Article) by
state governments will not give state governments ability to make such
an Article.
Sitting in those old conventions, we now have read the procedural
provisions of the Fifth Article up to the point where proposals bring,
in a _constitutional_ manner, a proposed new Article to makers with
existing ability to make the particular Article which has come to them.
We now read with interest the next chronological step of the procedural
provisions, the mention of the two existing makers of Articles--the
state legislatures, makers of federal or declaratory Articles, and the
“conventions” of the American citizens, makers of any Article.
We are actually sitting in “conventions” identical with those named in
the Fifth Article. We are in the “conventions” mentioned in the Seventh
Article and named therein by exactly the same word as is used in the
Fifth Article, the word “conventions.” Both Seventh and Fifth Articles
have been worded at Philadelphia. We, assembled in the “conventions”
named in the Seventh Article, are the whole American people. In
our conventions, so assembled, we are to make both the Seventh and
the Fifth Articles, with their common use of exactly the same word
“conventions.” And so we understand, with a knowledge which nothing
can disturb, that the “conventions” of the Fifth Article mean exactly
what the “conventions” of the Seventh Article mean. Thus we know, with
knowledge which nothing can disturb, that the “conventions,” named in
both Articles, are the American people, only competent makers (in 1787
or at any future time) of _national_ Articles which interfere with or
grant power to interfere with the individual freedom of the American
citizen.
We recall vividly the proposal that came from Philadelphia eleven years
earlier or in 1776, that the Americans in each former colony constitute
a government with such powers to interfere with the human freedom of
its citizens. We recall that such governments were constituted in
what Marshall states to be the only way in which men can act safely,
effectively or wisely, when constituting government of themselves,
namely, by assembling in “conventions.”
We also recall vividly the proposal that came from the same
Philadelphia a year later or in 1777, that the states constitute
a federal government of states. And we recall that the state
legislatures, because they possessed existing ability to make _federal_
Articles, did validly make the _federal_ Articles suggested in that
proposal.
We also recall, that the new Constitution, which is before us in the
“conventions” named in the Seventh Article, is to be both a _national_
Constitution, constituting government of men, and a _federal_
Constitution, constituting government of states. And we recall that
only one of the present Articles in that proposed Constitution, the
First Article, constitutes government of men by granting government
power to interfere with individual freedom. And we recall, with
Hamilton in the Convention beside us, the probability that all
future Articles in that dual Constitution, will probably be of the
_federal_ or the declaratory kind which the existing ability of state
legislatures can make.
And so we understand why Madison and Hamilton, in their Fifth Article,
mention that existing ability of the state legislatures to make
Articles which do not relate to interference with individual freedom,
as well as they mention our own exclusive ability, the ability of the
“conventions” of the American people, to make Articles which do relate
to interference with individual freedom.
And, sitting in those conventions with the “people better acquainted
with the science of government than any other people in the world,”
when we read the language of the Fifth Article, it is impossible for us
to make the monumental error of assuming that the mention of the two
existing abilities adds anything to one or subtracts anything from the
other.
And so, with our minds in those “conventions” free from any possibility
of such monumental error, we now read and clearly understand the
most important words in the _constitutional_ mode of procedure for
existing powers, which we know as the Fifth Article. To none of the
Americans in those conventions is there any doubt, to no American,
who understands what America is, can there ever be any doubt, what
_are_ the most important words. They are the words “in three fourths
thereof” immediately following the words which name the very kind of
“conventions” in which we sit. These words, “by conventions in three
fourths thereof,” bring home to us the marvel of what our “conventions”
are doing.
In them sit the people of America, possessors of the supreme will in
America, assembled in their respective states, as free men and not
as the citizens of the particular state in which each convention of
Americans assembles.
We realize, as the Preamble of the Constitution before us expressly
declares, what is the first proposal upon which we act affirmatively,
when we say “Yes” to the whole proposal from Philadelphia. The first
effect of that “Yes” is that we, that part of the American people
in that particular state, do consent (with the Americans in eight
or more other willing states) to join the new nation or political
society of men, which is to be America, and that we consent to be,
with those other Americans, the citizens of the new nation as soon as
the Americans in eight other willing states give their similar “Yes.”
We are well aware, as we sit in one of the “conventions,” that the
Philadelphia proposal has left it open for the free Americans in each
state to become members or not of the new society as they please,
and that, therefore, the joining of that society, by the Americans
in at least nine states, will mean that the new nation is created by
unanimous action of the majority in every state whose Americans become
citizens of America.
From which we realize that the original grants of national power by
_its_ citizens to the only government of the new nation will be the
second effect of the “Yes” from the Americans in nine conventions. Thus
these original grants, the First Article grants of enumerated power to
interfere with the individual freedom of the American citizen, will be
made simultaneously by the majority of Americans in _every_ state where
Americans become citizens.
But, once these early Americans leave those first “conventions,” the
whole American people will constitute the members or citizens of the
new nation, America.
The people of these United States constitute one nation. They have a
government in which all of them are deeply interested. (Justice Miller
in the Supreme Court, Crandall v. Nevada, 6 _Wall._ 35.)
As in any other republican nation, all _national_ powers must be
granted by its members or citizens. Any future _national_ power, not
granted by the citizens themselves, will be neither just nor valid
because power of the American government to interfere with the freedom
of the American citizen will not have been granted by those to be
governed by its exercise.
But, when the whole American people leave these “conventions” as
the united citizens of America, although it will be wise and proper
and necessary that American citizens shall hereafter assemble in
“conventions” in their respective states for the making of new proposed
grants of power to interfere with their freedom, it will no longer be
necessary that a “Yes” from _every_ “convention” should be given to any
future grant of _such_ power. When the whole American people assembled
in those first conventions, a “Yes” from every “convention” _was_
necessary because that “Yes” meant the willingness of the Americans
in that state to become citizens of America. But, once they all have
become _its_ citizens, it is in that capacity--and not as citizens of
each respective state--that the American government will interfere with
their individual freedom.
And it now dawns upon us, probably for the first time, how imperative
it is that the new Constitution should contain an explicit command,
prescribing how the vote of each “convention” should count and how many
“convention” votes should be sufficient and necessary for any future
proposed grant of power to interfere with the freedom of American
citizens. This brings home to us the impressive and important meaning
of the words “in three fourths thereof” after the word “conventions” in
the Fifth Article.
If they had not been written therein by the genius of the men at
Philadelphia, the method of counting the vote of each “convention” and
the number of “convention” votes CONSTITUTIONALLY requisite hereafter
for a new grant of _national_ power would be a matter of infinite
dispute. And so we recognize and pay our tribute, as we sit in one
convention of the first American citizens, to the wonderful foresight
of Madison and Hamilton and their colleagues at the Philadelphia
Convention which has just completed its labors. That tribute is evoked
by the words “three fourths thereof” after the word “conventions.”
We see that these words end all possibility of dispute in two important
respects where dispute would be certain if the CONSTITUTIONAL mode of
procedure did not contain _our_ command that, when future “conventions”
are asked for further grant of power to interfere with our individual
freedom, the “Yes” of each convention shall count as one “Yes” and a
“Yes” from three fourths of the “conventions” shall be both necessary
and sufficient to make a new grant of _such_ power. And, as we dwell
upon these amazingly important words, their presence in the Fifth
Article compels a greater tribute to the men who wrote them than that
demanded by the fact that this ends the possibility of the disputes we
have mentioned. It grows upon us that these words are among the most
important securities to individual liberty in the whole Constitution.
With increasing admiration for the men at Philadelphia, we sit in those
early “conventions” and recall how much Madison and his colleagues
have just told us in _The Federalist_ about the danger to individual
right from the tyranny of the citizens of a republic themselves,
whether that tyranny is attempted by a majority or an aggressive
minority of such citizens. We recall _The Federalist_, Number 51, and
its forceful exposition of the merits of the proposed Constitution and
its remarkable distribution of powers (powers _granted_ to the new
government in the First Article, powers _left_ with each state over its
own citizens and powers _retained_ by the American people themselves)
as security for individual rights.
“In the compound republic of America, the power surrendered by the
people is first divided between two distinct governments, and then
the portion allotted to each subdivided among distinct and separate
departments. Hence arises a double security to the rights of the
people.... It is of great importance in a republic not only to guard
the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part. Different
interests necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights of the minority
will be insecure. There are but two methods of providing against this
evil: The one by creating a will in the community independent of the
majority--that is, of the society itself; the other, by comprehending
in the society so many separate descriptions of citizens as will render
an unjust combination of a majority of the whole very improbable,
if not impracticable. The first method prevails in all governments
possessing an hereditary or self-appointed authority. This, at best,
is but a precarious security; because a power independent of the
society may as well espouse the unjust views of the major, as the
rightful interests of the minor party, and may possibly be turned
against both parties. The _second_ method _will_ be exemplified in
the federal republic of the United States. Whilst all authority in it
will be derived from and dependent on the society, the society itself
will be broken into so many parts, interests, and classes of citizens,
that the rights of individuals, or of the minority, will be in little
danger from interested combinations of the majority.... Justice is
the end of government. It is the end of civil society. It ever has
been and ever will be pursued until it be obtained, or until liberty
be lost in the pursuit. In a society under the forms of which the
stronger faction can readily unite and oppress the weaker, anarchy may
as truly be said to reign as in a state of nature, where the weaker
individual is not secured against the violence of the stronger....
In the extended republic of the United States, and among the great
variety of interests, parties, and sects which it embraces, a coalition
of a majority of the whole society could seldom take place on any
other principles than those of justice and the general good.... It
is no less certain than it is important, understanding the contrary
opinions which have been entertained, that the larger the society,
provided it lie within a practical sphere, the more duly capable it
will be of self-government. And, happily for the _republican cause_,
the practicable sphere may be carried to a very great extent, by a
judicious modification and mixture of the _federal principle_.” (_Fed._
No. 51.)
In those important words of the Fifth Article, “in three fourths
thereof” after the word “conventions,” we _now_ recognize the judicious
mixture of the federal principle in our own command which controls our
future CONSTITUTIONAL exercise of our exclusive ability to create new
power to interfere with our individual freedom.
These words do not challenge or disturb the legal American necessity
that our American government must get any new power _of that kind_
from us ourselves, assembled in our “conventions.” _But_, with a
practical wisdom never exceeded in framing the “constitution” of a
self-governing nation, these words impose an amazingly effective check
upon the existing ability of a majority or aggressive minority, in the
republic which is America, to interfere with individual rights. These
words do not attempt to destroy or alter that existing ability of the
citizens of the new republic. On the contrary, these words recognize
the existence of that ability. But, with the wisdom which means so much
security to every individual right in America, these words make it
impossible that such ability can be CONSTITUTIONALLY exercised unless
a majority or an aggressive and organized minority, when seeking new
government power to interfere with the individual freedom of the
American citizen, obtain a majority support from the American citizens
residing in every one of three fourths of the state in America.
Leaving (just for a moment) the conventions of the old days, we of this
generation realize with gratitude the check so provided. We understand
now, as we never understood before, why the organized minority which
demanded that government write the new Amendment into our Constitution
was driven by this constitutional check to ignore the plain fact that
the new Amendment can never validly be put into the Constitution (if we
still are citizens and not subjects) unless a “Yes” from the “people”
themselves, the “conventions” of the Fifth Article, is obtained from
three fourths of those “conventions.” We realize that the organized
minority in question must support their proposition on the concept that
Madison and Hamilton, who introduced and seconded the Fifth Article at
Philadelphia, intended that Article “to create a will in the community”
(which is America) “independent” of the supreme will of the American
people themselves, intended it to create that anomaly of a superior
will to the supreme will and to make that superior will the will of
the legislative governments of a fraction of the states. We refer
that organized minority to the quoted words of Madison or Hamilton,
referring to such creation of a will independent of the people
themselves: “This, at best, is but a precarious security, because a
power independent of the society may as well espouse the unjust views
of the major, as the rightful interests of the minor party, and may
possibly be turned against both parties. The second method [not the
creation of a will independent of the human members of the society]
will be exemplified in the federal republic of the United States,”
the very Constitution of which contains the Fifth Article. We average
Americans are now satisfied, beyond dispute, that neither Madison nor
his associates in the early conventions, to which we will now return,
understood or meant that the Fifth Article would or should create such
an independent will.
Sitting again in the conventions of old, we recall exactly the same
thought expressed by Madison himself in _The Federalist_, No. 10,
where he says: “When a majority is included in a faction, the form
of popular government, on the other hand, enables it to sacrifice to
its ruling passion or interest both the public good and the rights of
other citizens. To secure the public good and private rights against
the danger of such a faction, and at the same time to preserve the
spirit and form of popular government, is then the great object to
which our inquiries are directed.... Either the existence of the same
passion or interest in a majority at the same time must be prevented,
or the majority, having such co-existent passion or interest, must be
rendered, by their number _and local situation_, unable to concert and
carry into effect schemes of oppression.” These thoughts, from the
worder of the Fifth Article, sink deep into our minds and hearts as we
sit in those conventions. They come before us with startling clearness,
when we read his words in that Article, “_conventions in three fourths_
thereof,” and his words in reference to that Fifth Article mode of
procedure, “In requiring more than a majority, and particularly in
computing the proportion by _states_, not by _citizens_, it departs
from the _national_ and advances toward the _federal_ character.”
(_Fed_. No. 39.)
We realize that his mode of procedure is _national_, in its strict
conformity to the Statute of ’76, that all power over the people must
come _directly_ from the people, but that a judicious mixture of the
_federal_ system, in _counting_ the votes of the people, is the best
check human ingenuity has yet devised to protect individual rights
against a tyrannical majority or an aggressive minority.