TWO ARTICLES NAME “CONVENTIONS”
As we sit in those conventions and dwell upon the wisdom of the
_practical_ thought which inspired those words, “in three fourths
thereof” after the word “conventions,” we know why the people with
whom we sit compelled the tribute that they grasped the science of
government better than any other people in the world. The one aim of
all of them was the happiness and welfare of the _individual_. The
welfare or prosperity of the political entities, which we know as
America and the respective states, were of no importance to these
people, except as they contributed to the welfare of the _individual_.
The prestige and the power of each and every government in America and
of all governments in America together were of no importance to these
people, except as they contributed to the welfare of the _individual_.
And when _we_ sit with them in their conventions, after living with
them through their experience from 1775, we realize (as we have
never realized before) that the Statute of ’76 was enacted, that the
_national_ constitutions of government were made by the _people_ in
each colony, that the sacrifices of the Revolution were endured for
eight years, that the federation of states was established by states
in 1781, that the wisdom and ability and patriotism of America had
just assembled at Philadelphia in 1787 and made its proposal which
we are considering in these conventions--_all that the welfare of
the_ INDIVIDUAL _might be secured_. We realize that the wisdom and
ability and patriotism of America, at Philadelphia, had labored for
months to ascertain, by the light of all human experience, in what
proportion (_solely to secure the welfare of the individual_) power
to interfere with individual freedom ought to be surrendered at all
to governments and retained by the people, and in what proportion
the quantum of surrendered power should be _left_ with each state
government over its own individuals and given to the new general
government over its individual citizens. We realize that the wisdom
and ability and patriotism of America, at Philadelphia, had _known_
that no governments, then or in the future, if individual welfare was
to be secured, could ever legally determine either proportion or could
ever alter either proportion, when once established by the supreme
will in America, the “people” of the Preamble and Tenth Amendment, the
“conventions” of the Seventh and Fifth Articles.
And so we, of this later generation, sit in those “conventions” of
the Seventh Article and we read the Fifth Article, where the same
“conventions” are named, and look with awe upon the practical wisdom
which dictated these words “in three fourths thereof,” after that
mention of those “conventions” of the American people in the future.
We realize now that those words are among the greatest securities
to individual welfare written into the proposed Constitution by the
wisdom and ability and patriotism of America, at Philadelphia. In that
Constitution, other great securities protect individual welfare against
usurpation from outside America and against usurpation by government
or governments _in_ America beyond the exercise of the _national_
powers granted to each government by its own respective individual
citizens. But this particular great security of individual welfare, the
words “in three fourths thereof,” secures individual welfare against
the unjust oppression of a majority or an aggressive minority _of
the Americans themselves unless_ that majority or minority secure a
majority of the Americans in _each_ of three fourths of the states to
support the unjust oppression of individual welfare.
And thus, in those conventions, _we_ realize, perhaps for the first
time, that the _important_ statements of the Seventh and the Fifth
Articles are, in substance, identical statements by the supreme will
of the American people. They are respectively the two statements or
commands of the citizens of America, the new nation, as to WHEN the
grants of power in the First Article shall _be_ the grant of the
American citizens and as to WHEN the grants of any _similar_ power,
in the generations to come, shall _be_ the grants of the American
citizens. In their language, in their purpose and in their plain
command, both statements are exactly alike in substance. The statement
or command of the American people, in the Seventh Article, is that
the constitution of the government of interference with individual
freedom, the First Article, shall _be_ the Constitution of the
American people _when_ nine of the “conventions” (named in the Seventh
and Fifth Articles) shall have said “Yes” to that constitution, to
the enumerated grants of _national_ power in the First Article. The
statement or command of the American people, in the Fifth Article, is
that any new _proposed_ constitution of government of interference with
individual freedom of the American citizen (the supposed Eighteenth
Amendment being the first new constitution _of that kind_) shall be
the Constitution of the American people _when_ three fourths of the
“conventions” (named in the Seventh and the Fifth Articles) shall have
said “Yes” to that new proposed constitution.
At this point, we average Americans, sitting with those amazing
Americans in their “conventions,” fix firmly in our minds, _with intent
never to forget_, the fact that the “conventions” of the Seventh
Article command are indisputably the American people themselves;
that the “conventions” of the Fifth Article command are identical
(except as to the time in which the American people assemble) with the
“conventions” of the Seventh Article command; and that, therefore,
the “conventions” of the Fifth Article command are also the people
of America themselves. But the whole people of America are the “We,
the people” of the Preamble. They are the only reservee of the Ninth
Amendment, “the people” therein. They are the “most important factor”
and reservee of the Tenth Amendment, “the people” therein. Wherefore,
we grasp clearly why they are mentioned in the Fifth Article, because
they have no government attorney in fact--as they could not have if
we are “citizens of America”--to surrender what they reserved to
themselves in the Ninth and Tenth Amendments.
Sitting in those conventions, we recall the limited ability of state
legislatures, each speaking for its own state, to make _federal_
Articles, Articles that neither interfere nor give power to interfere
with individual liberty, the ability that made all the federal Articles
of 1781. And we recall that the Constitution does not take that ability
from the “states respectively” and _their_ governments but _reserves_
it to the “states respectively” and their governments, as the Tenth
Amendment expressly declares. And so we understand the _mention_ of
that limited ability in the Fifth Article in the words “ratified
by the legislatures of three fourths of the several states.” And,
educated by the experience of the amazing Americans with whom we sit,
we realize the meaning of this particular statement or command of the
supreme will, the people of America. That supreme will is creating a
new nation out of its human possessors. It is destroying forever the
complete independence of the respective states, but leaving each of
the states a political entity with citizens and much independence.
It is incorporating the system of a _federal_ union of states into
the new national system of a union of all individual Americans, and
it is subordinating the members of the _federal_ union and also the
_federation_ itself to the union of human beings, to the supreme will
in America, the will of the citizens of that nation. Therefore, as each
state is no longer completely independent, it is no longer necessary
that _every_ member of the _federal_ union shall utter its “Yes” to
the making of any new Article of the _federal_ or declaratory kind,
the only kind which governments ever can make. And so we clearly
understand, as the early Americans in their conventions understood at
once, that the words “ratified by the legislatures of three fourths
of the several states” was to be the command of the American people,
sitting in those conventions, that a “Yes” from three fourths of the
state governments would, thereafter, be necessary and sufficient for
the making of a new proposed _federal_ or declaratory Article. And we
do _not_ understand, as the Americans in those conventions _never_
understood, that those words implied any “_grant_” of ability to the
state governments to make _any_ Articles in _our_ Constitution, much
less Articles by which governments interfere or give power to interfere
with the individual freedom of the American citizen outside the matters
enumerated in our First Article.
On the contrary, it becomes amazingly clear to us that the
“conventions” of the American citizens are mentioned in the Fifth
Article because the American citizens are the important reservee of
the Ninth and Tenth Amendments. And it becomes equally clear that the
“legislatures of the several states” are mentioned in the Fifth Article
because the “states respectively” are the _lesser_ reservees named in
the Tenth Amendment.
The Tenth Amendment tells us that no power of _any kind_ is given,
by the new Constitution, to _any_ grantee except to the new nation
and _its_ government, the American government. It tells us that some
powers, which each state had hitherto possessed, are taken from it;
that the exercise of other powers, which each state had hitherto
possessed, are now prohibited to it; and that _only_ the _other_ powers
(_which each state had hitherto possessed_) are _left_ with that state
by the command of the supreme will in America, ourselves, the citizens
of America. It tells us emphatically that no new powers of any kind
are _given_ to any state or to any collection of states or to their
governments. It tells us that the American people, in making _their_
Constitution, left each state and each state government powerless,
as they had been, alone or in combination with other governments, to
interfere with the individual rights of any human being outside that
particular state. And finally it tells us, what the Supreme Court has
expressly declared to be the most important declaration in that Tenth
Amendment, that we ourselves, the individual citizens of America, the
“people” of the Preamble and of that Tenth Amendment, retain (secure
from any valid exercise by any government or governments in the world
and only capable of exercise by ourselves in our “conventions”) every
power to interfere with the individual freedom of the American citizen
except in the matters enumerated in the First Article.
And so, in those “conventions,” we need no constitutional thinker to
tell us the simple fact that only those who have can give. If the state
legislatures have not, as indisputably they have not, any ability to
exercise or to grant power of _general_ interference with individual
rights throughout America, and if, as the Tenth Amendment expressly
declares, the entire Constitution adds naught to their existing ability
to make Articles of another kind, the Fifth Article merely prescribes
the _constitutional_ mode of procedure, in which, by command of the
American people, that existing and limited ability shall thereafter be
exercised.
And likewise, if the American people themselves, the Seventh Article
“conventions” in which we are sitting, have _exclusive_ ability to
exercise or to give power of _general_ interference with their own
individual rights, and if, as the Ninth and Tenth Amendments together
expressly state, those “conventions” retain that exclusive ability,
clearly the Fifth Article reference to the same “conventions” of the
American citizens is but prescribing the _constitutional_ mode of
procedure in which, by command of the American people, that exclusive
ability of _their own_ shall thereafter be exercised. When the “apt,
precise and classic English” of the Fifth Article permits no other
meaning, we cannot imply that the Article intends to grant what one
supposed grantee (who is the supposed grantor) already has and what
the other cannot ever have. Nor can we imply that the Article intends
to provide a _constitutional_ mode of procedure in which those, who
have not, may give. Moreover, as this absurd implication would make the
individual American people “subjects,” as soon as they adopted that
Article, we now know, with absolute certainty, that the Americans,
in the “conventions” in which we are sitting, adopted it as their
fundamental law of procedure with the only meaning which its own “apt,
precise and classic English” permits.
We have now read, in those conventions of old and with the Americans
therein who made it, all of the Madison Fifth Article save the two
exceptions at the end thereof, beginning “provided that no amendment,
etc.” In those conventions, the meaning of those two exceptions
needs but a moment’s thought. One exception is that no change may be
_constitutionally_ made, prior to 1808, in relation to the existing
evil of human slavery. The other exception is that no change may
be _constitutionally_ made which shall give any state greater
representation in the Senate than each other state. These are not
exceptions to any power “_granted_” in the Article. No power of _any_
kind, as we already know, is “_granted_” anywhere in the Article,
but the Article does _mention_ two existing abilities, one limited
and the other unlimited, and prescribes the _constitutional_ mode of
procedure in which each of the respective existing abilities may be
exercised. The exceptions simply mean that the Article provides no
_constitutional_ mode of procedure in which may be exercised existing
ability to change the Constitution in the matters mentioned in the two
exceptions.
We average Americans have now examined carefully the record of the
wording of all our Constitution at Philadelphia and particularly
the record of the wording of the three Articles, the First and the
Seventh and the Fifth, which either purport to give or mention future
giving (by the “people,” who alone can give) power to interfere with
the individual freedom of the American citizen. Furthermore, we have
sat in the “conventions” of the American people, in which all those
worded Articles were made, and have read, with the Americans in those
“conventions,” the apt, precise and classic English of the Fifth
Article, which told them, _as it tells us_, that the Article merely
prescribes the _constitutional_ mode of procedure, in which thereafter
can be exercised either the existing limited ability of the state
governments or the existing unlimited ability of the American citizens
themselves, the “conventions” of the Seventh and the Fifth Articles.
We are certain, therefore, that nowhere in the Constitution, made
in those early “conventions,” can the most ingenious mind discover
what would have been the greatest blunder in the history of mankind,
anything which changed the actual and legal relation of the individual
American to government and made him the “subject” of any government
or collection of governments in America. It would be unwise, however,
for us to leave those conventions without listening to some few of the
great Americans, who sat therein, telling us how the new Constitution
does _secure_ the status of the free individual American and protect
his individual freedom from all usurpation by any government or
governments in America.