CONVENTIONS KNOW “CONVENTIONS” ARE “THE PEOPLE”
“When a single government is instituted, the individuals of which it is
composed surrender to it a part of their natural independence, which
they before enjoyed as men. When a confederate republic is instituted,
the communities of which it is composed surrender to it a part of their
political independence, which they before enjoyed as states.... Since
_states_ as well as _citizens_ are represented in the Constitution
before us, and form the objects on which that Constitution is purported
to operate, it was necessary to notice and define _federal_ as well as
civil liberty.... Under these impressions, and with these views, was
the late convention appointed; and under these impressions, and with
these views, the late convention met. We now see the great end which
they proposed to accomplish. It was to frame, for the consideration
of their constituents, one _federal_ and _national_ Constitution ...
a constitution that would insure peace, freedom, and happiness to the
states and people of America.” (2 _Ell. Deb._ 429, _et seq._)
So spoke the great Wilson, beginning his explanation of the proposed
Constitution to the first Americans assembled in the “conventions”
named in the Seventh and Fifth Articles, the Americans in Pennsylvania.
As we listen to him, we remark the insistence upon the fact that the
Constitution to be considered is both a “_federal_ and _national_
Constitution.” And, in strict conformity to this fact, Wilson is
heard explaining the difference between the _federal_ liberty of a
state, controlled by the _federal_ Articles of a constitution, and
the _natural_ liberty of a man, controlled by the _national_ Articles
of a constitution. We listen to him with great interest when he tells
us that this _federal and national_ Constitution has been framed to
insure “peace, freedom and happiness to the states and the people of
America.” In his words we hear the echo of the fact so clearly declared
in the Tenth Amendment, that the _federal_ powers, not delegated in
this Constitution to the new government, are reserved “to the states
respectively,” and the _national_ powers, not therein delegated, are
reserved “to the people” themselves of America.
And, remembering that the two distinct reservees of the Tenth Amendment
are respectively named in the Fifth Article, we keep in mind that the
new Constitution is both “a federal and a national Constitution.”
From which we know, as Wilson knew, that these reservees _are_ named
in the Fifth Article, the “state legislatures” because of their
limited ability to make _federal_ or declaratory Articles, and the
“conventions” because of their ability to make Articles _of every
kind_, the “conventions” of the Fifth and Seventh Articles being the
people themselves. As we are actually sitting with Wilson in one of
the “conventions” of the Seventh Article, there is no possibility of
our forgetting, as none of the people in any of those conventions ever
forgot, that the “conventions” of the Seventh Article are exactly the
same as the “conventions” of the Fifth Article and that both are the
people of America, assembled in their “conventions.”
None of the Americans in those conventions could be guilty of the
ridiculous modern blunder about the Fifth Article. None could possibly
read that Article to mean that the American citizens, “assembled in
conventions,” were granting to the American citizens, “assembled in
conventions,” any ability whatever to _make_ Articles. The modern
blunder becomes clear to us. Although the Seventh and Fifth Articles
have only been proposed and have not yet been made, we sit in one of
those “conventions” about to exercise ability to say “Yes” to any
Article, whether federal or national. So, with amazement at the blunder
of 1917 and 1920 about the Fifth Article, we listen intently to the
Wilson statement which brings home the absurdity of the idea that the
Article _is_ a _grant_ of ability to make Articles.
As in all those conventions, he is meeting the usual charge that the
new Constitution endangers individual liberty because it lacks a bill
of rights. As in all the conventions, he is pointing out that no bill
of rights is needed in a Constitution which gives to government no
power to interfere with individual freedom, except the specific and
enumerated powers of the First Article. He is repudiating the thought
that anywhere in the Constitution, in its Fifth Article or elsewhere,
outside of the First Article, is there any grant to any government of
power to interfere with individual liberty. And this is what he has to
say about the Philadelphia Convention, which ended in the preceding
September, and about the constitutional Articles that Convention
proposed, including the Fifth Article. “A proposition to adopt a
measure that would have supposed that we were throwing into the
general government every power not expressly reserved by the people,
would have been spurned, in that House, with the greatest indignation.”
(2 _Ell. Deb._ 436.)
We Americans, who will listen later herein to some extraordinary ideas
about the Fifth Article from our modern “constitutional” thinkers,
wonder just exactly with how much indignation the Fifth Article would
have been spurned in all the conventions of that earlier day, if
Patrick Henry or any other great opponent of the proposed Constitution
had only been able to point out that the Fifth Article was a “grant”
to a general government (the legislative governments of some of the
states) not only of every power “expressly reserved by the people”
but also of every power given to Congress by the First Article. We
also wonder whether the indignation would have been increased or
entirely dissipated if Henry or some other opponent had informed those
conventions, the assembled people of America, a people so jealous
of all government interference, that the omnipotence was granted so
that the state legislatures, never elected by the American citizens
at all, might, without the slightest restraint or any constitutional
restriction, interfere with every individual right of the American
citizen.
While many apparently sane and reasonable modern inhabitants of America
have listened to such ideas in the last five years as if those who
advanced the ideas were talking or thinking intelligently, we rather
believe that the Americans in those early conventions, even from Henry,
would not have received such ideas complacently. However, as we have
found in those early Americans much of the natural humor which is
the characteristic of a human being who thinks for himself, we are
inclined to believe that the modern ideas in relation to the Fifth
Article, about which ideas we have just been talking, would not have
been received in any of those conventions with indignation but would
have been greeted with prolonged laughter.
But the Henry of those days had not the intellectual calibre of _our_
“constitutional” thinkers. Therefore, in those conventions, not even
from one of the many bitter opponents of the proposed Constitution,
do we hear any suggestion that there lurks somewhere in the Fifth
Article, between its lines, because not hinted at in its apt, precise
and classic English, the extraordinary grant of omnipotence to the
legislative governments of some of the states. On the contrary, in
every convention, we find the new Constitution bitterly assailed
because its provisions reduce the state governments to that pitiable
condition where Henry calls them the weakened, enervated and
defenseless state governments. Indeed, we are inclined to mirth when
we contrast these modern ideas of the Fifth Article (that it _grants_
omnipotence over individual rights to _some_ state governments)
with many of Henry’s word pictures of the effect of the proposed
Constitution on those state governments.
This is one of those pictures which he exhibits to the Americans in
Virginia, assembled in their conventions: “What shall the states have
to do? Take care of the poor, repair and make highways, erect bridges,
and so on, and so on? Abolish the state legislatures at once. What
purposes should they be continued for? Our legislature will be indeed
a ludicrous spectacle--one hundred and eighty men marching in solemn,
farcical procession, exhibiting a mournful proof of the lost liberty of
their country, _without the power of restoring it_. But, sir, we have
the consolation that it is a mixed government; that is, it may work
sorely on your neck, but you have some comfort by saying, that it was a
federal government in its origin.” (3 _Ell. Deb._ 171.)
Clearly, neither Henry nor the other opponents of the new Constitution
had the modern ability to discern that it only _appeared_ to deprive
the state governments of much of their former powers. They could not
see, they did not know, that its Fifth Article granted those state
governments the omnipotence over individual liberty which the Statute
of ’76 had denied to the British Parliament. And because Henry and his
colleagues had not the discernment of _our_ leaders, we hear Wilson and
the supporters of the Constitution defending it against the plain fact
that it did rob the state governments of much of their former power.
For example, we hear Wilson saying: “The secret is now disclosed, and
it is discovered to be a dread, that the boasted _state sovereignties_
will, under this system, be disrobed of part of their power.... I
know very well, sir, that the people have hitherto been shut out of
the federal government; but it is not meant that they should any
longer be dispossessed of their rights. In order to recognize this
leading principle, the proposed system sets out with a declaration
that its existence depends upon the supreme authority of the people
alone.... When the principle is once settled that the _people_ are
the source of authority, the consequence is, that _they_ may take
from the subordinate governments powers with which they have hitherto
trusted them, and place those powers in the general government, if it
is thought that there they will be productive of more good. They can
distribute one portion of power to the more contracted circle, called
_state governments_; they can also furnish another proportion to the
government of the United States. Who will undertake to say, as a state
officer, that the people may not give to the general government what
powers, and for what purposes, they please? How comes it, sir, that
these state governments dictate to their superiors--to the majesty
of the people?... I have no idea that a safe system of power in the
government, sufficient to manage the general interest of the United
States, could be drawn from any other source, or vested in any other
authority, than that of the people at large; and I consider this
authority as the rock on which this structure will stand. If this
principle is unfounded, the system must fall.... With how much contempt
have we seen the authority of the people treated by the legislature of
this state!” (2 _Ell. Deb._ 443, _et seq._)
But we cannot stay much longer in the Pennsylvania Convention. It
would be unwise, however, for us to depart therefrom without hearing
the accurate confirmation of our own reading and understanding of the
Fifth Article from its own “apt, precise and classic English.” Wilson
was explaining his opposition to the doctrine that a constitution is
a compact between a master government and servant people. In other
words, he was explaining the American Statute of ’76, stating the
legal principle that Americans are not “subjects.” “The citizens of
united America, I presume, do not wish to stand on that footing with
those to whom, from convenience, they please to delegate the exercise
of the general powers necessary for sustaining and preserving the
Union. They wish a principle established, by the operation of which
the legislatures may feel the direct authority of the people. The
_people_, possessing that authority, will continue to exercise it by
amending and improving their own work.” (2 _Ell. Deb._ 498.)
To us average Americans this seems like sound American law and in
strict keeping with our reading of the plain language of the Fifth
Article, as we read it with the Americans in those old conventions.
Wilson and his associates seem to know _with certainty_ that the
Fifth Article is not to change all the free individual Americans into
“subjects” of the legislative governments of which he speaks. Indeed,
he calls all those free Americans, to some of whom he was speaking,
“the citizens of America,” although the nation of America would not
exist and they would not be its citizens until they and the Americans,
_in_ eight other conventions, had said “Yes” to the Constitution they
were discussing. Therefore, when he speaks of that Constitution as
establishing a principle “by the operation of which the legislatures
may feel the direct authority of the people” or “citizens of America,”
and immediately adds that those citizens, possessing the _exclusive_
authority to exercise and vest ability to interfere with individual
freedom, “will continue to exercise it by amending and improving
their own work,” the enumerated grants of such authority in the First
Article, we realize with certainty that he and his associates know
that the Fifth Article in that Constitution does not mean that the
legislatures (who are to feel the direct authority of the people)
can thereafter exercise the authority of the citizens of America by
altering, subtracting from or adding to the First Article quantum
of delegated power to interfere with the individual freedom of the
American people.
In this convention, where the Americans in Pennsylvania are assembled,
we have heard the consistent emphasis laid upon the fact that the
Constitution is both a _federal_ and a _national_ Constitution, the
distinction from all other constitutions so clearly recognized by the
Fifth Article mention of the two makers of Articles. Later herein we
will learn how this distinctive quality of our Constitution, this
distinction recognized in its Fifth Article as well as in its Tenth
Amendment, has neither been felt or acknowledged but has been wholly
ignored by our modern “constitutional” thinkers for five years last
past. At this point, therefore, it is well that we sit for a moment
in the Virginia convention and listen to Henry, the greatest and
most determined opponent of the Constitution before it was adopted.
With our minds fixed upon the language of the Fifth Article and its
clear mention of the exclusive existing ability of “conventions” to
make national Articles, a mention emphasized by the equally clear
recognition of the limited ability of the legislative state governments
to make Articles which are _not_ national, it is interesting to
hear Henry refer to the difference between _federal_ and _national_
Articles; and it is more than interesting, it is amazingly important
to hear him proving, _by the fact that the Americans in Virginia are_
assembled in one of the “conventions,” that the Articles which have
been just proposed from Philadelphia, _are national_ and, therefore, of
the kind that legislative governments can never make.
It is Thursday, June 5, 1788, the day on which began the immortal
Virginia debate. For a year, since the proposal from Philadelphia, the
new Articles have been the subject of the severest scrutiny on the part
of those determined to secure the rejection of those Articles by the
American people in Virginia. Throughout all America, these Articles
have been examined and assailed and condemned in public writing and
speech by those equally determined to secure their rejection by the
Americans assembled in the other “conventions.” On the other hand, the
same Articles have been explained and their necessity, if American
individual liberty is to be secure, has been demonstrated in the famous
essays which we now know as _The Federalist_, nearly all of which
essays were the work of Madison and Hamilton, who are responsible
for the wording and the meaning of the Fifth Article. Like the other
“conventions,” assembling when all minds sought the best protection
for individual liberty against oppressive governments, the members
of the Virginia convention have been carefully chosen to speak the
will of the Americans in Virginia by a simple “Yes” or “No” to these
seven Articles, the first of which constitutes government ability to
interfere with individual liberty.
Could anything be more vitally important to individual liberty than
that just such “conventions,” so chosen, not the state legislatures,
each elected by the citizens of its own state _for an entirely
different purpose_, should continue to have their exclusive ability to
determine _how much_ power to interfere with individual freedom shall
be surrendered by the American people, and how the quantum (which _is_
surrendered) shall be apportioned for exercise between the one American
government and the respective states and their respective legislative
governments? Later herein we shall learn how clearly Madison and
Hamilton, responsible for the wording and meaning of the Fifth
Article, knew and appreciated the practical and amazing importance as
security to individual liberty, in this distinction between the _two_
makers (“conventions” of the American people themselves and state
“legislatures”) named in their Fifth Article and in the distinction
between their respective and _existing_ abilities to make Articles in
a Constitution which is both a _federal_ and _national_ Constitution.
And, as we know, as the Supreme Court has declared in the voice of the
Marshall who sits with us in that Virginia convention, the knowledge
and appreciation was not peculiar to Madison and Hamilton. It was the
common knowledge and appreciation of all the Americans who _made_ the
Fifth Article in those conventions. “To the formation of a league,
such as was the Confederation, the state sovereignties were certainly
competent”; but when a grant of enumerated power to interfere with
individual freedom was asked, “the legal necessity of referring it to
the people and of deriving its powers directly from them was felt and
acknowledged by all.” When such a grant is asked, whether it be asked
in the shape of the First Article or of the Eighteenth Amendment, it
is not referred to the people at all, unless it is sent to them to be
considered and discussed _before_ they choose, from among themselves,
those of themselves who will assemble in the “conventions” for the one
and sole purpose of uttering the carefully weighed “Yes” or “No” of
the Americans in the state where the particular convention assembles.
As all in those early conventions knew, as Marshall declared from the
Supreme Court, _that_ assembling in those “conventions” is the only way
in which the American people can act “safely, effectively and wisely”
when asked for a grant of power to interfere with individual freedom,
and, as the Statute of ’76 and good sense and practical experience
alike teach all free men, that is the only way in which any just power
of government can be derived “directly” from the citizens upon whom it
is to be exercised.
We commend a careful thought of this distinction, vital and important
to individual human liberty, to the constitutional thinkers of 1917
and 1920. Whenever they read a Fifth Article which included the words
“or in conventions in three fourths thereof,” they have assumed that
two makers of Articles were named in the amending procedure of the
Constitution (which is both _federal_ and _national_) in order that
Congress, when _it_ wanted new power to interfere with individual
freedom, might weigh the chance of getting it from each maker and then
ask it either from those who reserved it exclusively to themselves,
the “people” of the Tenth Amendment, or from those who never had it or
the ability to grant it, the other reservee of the Tenth Amendment,
“the states respectively” and their governments. Or perhaps it was the
concept of these modern constitutional thinkers that the Fifth Article
mentions two makers of Articles merely that Congress may choose either,
according to its whim, as a fortunate golfer chooses between his two
golf suits. That is their idea of the security to human individual
liberty against government usurpation which Madison and Hamilton and
the American people established about eleven years after they declared
that no just power to interfere with human freedom could ever be
obtained, except from the citizens with whose individual liberty the
exercise of the power was to interfere!
As Henry and his fellow Americans in the Virginia convention had no
such absurd concept, we return to hear him charge that the Philadelphia
Convention had exceeded its authority in proposing the Constitution of
_national_ government and to prove that the proposed Constitution _was_
national by the fact that the Americans in Virginia are assembled in
“convention” to say “Yes” or “No” to that Constitution, whereas, if it
had consisted only of _federal_ Articles, it would have been sent to
the legislatures.
“The distinction between a national government and a confederacy
is not sufficiently discerned. Had the delegates, who were sent to
Philadelphia, a power to propose a consolidated government instead
of a confederacy? Were they not deputed by _states_, and not by the
_people_? The assent of the _people_, in their collective capacity,
is not necessary to the formation of a _federal_ government.... They
are not the proper agents for this purpose. States and foreign powers
are the only proper agents _for this kind_ of government. Show me an
instance where the people have exercised this business. Has it not
always gone through the legislatures?... Are the people, therefore, in
their aggregate capacity, the proper persons to form a _confederacy_?
This, therefore, ought to depend on the consent of the legislatures,
the people having never sent delegates to make any proposition for
changing the government.” (3 _Ell. Deb._ 52.)
In these words, as always in the convention where we sit and listen
to him, Henry attests the universal knowledge, common to advocate
and opponent of the proposed Constitution, that the Constitution
has not been referred to the state governments because of their
absolute inability to constitute government of individuals, to give to
government any power to interfere with individual liberty. In this, he
and the others but echo the knowledge of the Americans at Concord, on
that October day, eleven years earlier, where they returned a proposed
Constitution with Articles _of that kind_ to the legislature which
had proposed it. We recall their own statements that even a _supreme_
legislative government “either in their proper capacity or in joint
committee, are by no means a body proper to form and establish a
Constitution.” We recall their statements of the important knowledge
that “a Constitution, alterable” even “by the supreme legislative,
is no security at all against the encroachment of the governing part
on any or on all their rights and privileges.” But we also hear, in
these words of Henry, his knowledge--the knowledge of all Americans
at that time--of something else interesting and important to us. We
hear him twice identify the assembling of the American people, in
the “conventions” named in the Seventh _and the Fifth_ Articles, as
the people “in their collective capacity” and the people “in their
aggregate capacity.” As we hear him, and as we hear Wilson in the
Pennsylvania convention stating that “in this Constitution _the
citizens of America_ appear dispensing a portion of their power,”
as we hear similar statements in all those “conventions,” we sense
the universal knowledge of all those conventions that they are the
_American_ people, the citizens of the _new republic_. And later
herein, with our education of 1790 completed by sitting in these very
conventions, we intend to listen (with amazement and without the
slightest belief) to the remarkable statements of 1917 and 1920, that
the states, political entities, made our Constitution or that the
citizens of the different states, in their capacity as _such_ citizens,
gave to the _American_ government the enumerated First Article powers
to interfere with the individual liberty of the citizens of that
entirely different and greater nation, America. Impressed by Henry’s
knowledge that the conventions which made the Constitution were the
people of America, “in their collective capacity,” “in their aggregate
capacity,” and impressed with Wilson’s knowledge that “the citizens of
America”--not the states or the citizens _of the states_--“are seen
dispensing a portion of their power,” we are going to laugh at the
concepts of 1917 and 1920 and know that Marshall was right when he
said, speaking of the American people and their assembling in those
“conventions”: “It is true, they assembled in their several states, and
where else could they have assembled?... When _they_ act, _they_ act
_in_ their states. But the measures they adopt do not, on that account,
cease to be the measures of _the people themselves_ or become the
measures of the _state governments_.”
Yet, when we later come to the modern days of 1917 and 1920, we
shall see all _our_ leaders, whether for or against the Eighteenth
Amendment, blandly assume a most extraordinary meaning from the Fifth
Article mention of the state legislatures. Not a single member of any
state legislature is elected by the citizens of America. Moreover,
the Tenth Amendment expressly declares that the Constitution--that
great power of attorney from American citizens to their only American
government--gives no power whatever to the states or _their_
governments. Nevertheless, with amusement and absolute incredulity,
we shall hear every statesman of 1917 and every lawyer of 1920 assume
and act and argue upon the extraordinary concept that the Fifth
Article of that Constitution is a great power of attorney to the state
legislatures as attorneys in fact for the American citizens.
“We all know the severe scrutiny to which the Constitution was
exposed--some from their own knowledge, others from different sources.
We know with what jealousy, with what watchfulness, with what
scrupulous care its minutest provisions were examined, discussed,
resisted, and supported by those who opposed and those who advocated
its ratification.” (4 _Ell. Deb._ 486.) So spoke Martin Van Buren in
the Senate on April 7, 1826. We sit in the conventions which made the
Constitution of which he spoke. We listen to every word that is said
therein. We hear the Fifth Article explained by its worder, Madison,
as nothing but a mode of procedure. From not one of the opponents
of the Constitution, not even from Henry, do we hear a single word
of attack upon the Fifth Article except as to the weakness of the
mode of procedure which it provides for _evoking_ the power of the
“people” themselves, assembled in “conventions” of the very same
kind, to withdraw from the one American legislature, the Congress,
some enumerated power of the First Article which is found oppressive
to individual liberty. On the contrary, we not only hear _no_ single
word of complaint that the Fifth Article or any Article gives one
iota of power to the state legislatures, but the whole complaint of
all the opponents of the Constitution which we _do_ hear is that it
practically destroys all existing ability and power of those state
governments. Only a moment ago we have heard Henry ask: “If you adopt
this Constitution, why continue the state legislatures at all?”
Anticipating the extraordinary concept which we are later to hear in
1917 and 1920, that the citizens of America by the Fifth Article made
a collection of the state legislatures an omnipotent government over
everything in America, including every individual right, we wonder
if the constitutional thinkers of 1917 and 1920 remember that we are
sitting with a people who, just five years before the conventions in
which they and we sit, ended an eight-year war to make certain that
there never again should be a government of that kind in America, to
make certain that they themselves should never be the “subjects” of any
government or the citizens of any nation whose government should have
even one power to interfere with individual liberty, except power _of
that kind_ granted directly by its citizens themselves.
It was Maclaine in the North Carolina convention who first used the
exact expression that the Americans, who sit in the conventions where
we are, were a people “better acquainted with the science of government
than any other people in the world.” In the same convention, on July
29, 1788, this is what he had to say about the consistent attack upon
the Constitution, because it robbed the state legislative governments
of so much of their previous power. “Mr. Chairman, that it _will_
destroy the state sovereignty is a very popular argument.... Government
is formed for the happiness and prosperity of the people at large. The
powers given it are for _their_ own good.... The powers to be given
the general government are proposed to be withdrawn from the authority
of the state governments, in order to protect and secure the union at
large. This proposal is made to the _people_. No man will deny their
authority to delegate powers and recall them, in all free countries....
It may be justly said that it [the Constitution which contains the
Fifth Article] diminishes the power of the state legislatures, _and the
diminution is necessary to the safety and prosperity of the people_.”
(4 _Ell. Deb._ 180.) It certainly would have surprised Maclaine, as
well as all the Americans in those conventions, to have heard any one
of themselves stating that the same Constitution vested the state
governments with an omnipotence they had never possessed, the very
omnipotence denied to the British Parliament eleven years earlier.
In the Virginia convention we hear Madison, who drafted and suggested
the Fifth Article at Philadelphia, speak of the important distinction
between the makers of the _federal_ Articles of 1781, only seven years
made, when we sit in that Virginia convention, and the “convention”
makers of the proposed Articles of the new _national_ Constitution.
If these “conventions” make it, he says, it will be a government
established, not through the intervention of the legislatures _but by
the people at large_. Fie goes on to say “In this particular respect,
the distinction between the existing and proposed governments is very
material. The existing system has been derived from the dependent
derivative authority of the legislatures of the _states_; whereas this
is derived from the _superior_ power of the _people_. If we look at the
manner in which alterations are to be made,” now referring directly to
the Fifth Article, “the same idea is, in some degree, attended to.” (3
_Ell. Deb._ 94.)
We feel that it will be quite difficult, when we come later to the
constitutional thinkers of 1917 and 1920, for them to convince us that
Madison meant his Fifth Article to alter “the dependent derivative
authority of the legislatures of the state” and, whenever another
government makes the suggestion, put that dependent authority above
what he calls “the superior power of the people.”
And we feel that these “constitutional thinkers” will find it
impossible to convince us when we recall Madison’s other words,
directly referring to his Fifth Article and the existing power of the
people, mentioned therein by the word “conventions.” These are the
words to which we allude: “Were it [his Fifth Article] wholly national,
the supreme and ultimate authority would reside in the _majority_
of the people of the Union, and this authority would be competent
at all times, like that of a majority of every national society, to
alter or abolish its established government.” It is Madison himself
who puts the one word “majority” in italics. He does so to call
attention to the fact that his Article leaves “the supreme and ultimate
authority” in the _people_ (named as “conventions” in his Article)
but not necessarily capable of exercise by the _majority_ in any
_constitutional_ manner. He goes on to explain this very fact by saying
that when the mode of procedure prescribed in his Article is read, it
is found that “in requiring more than a majority, and particularly in
computing the proportion by _states_, not by _citizens_, it departs
from the _national_ and advances towards the _federal_ character.”
(_Fed._ No. 39.)
In New York we find Hamilton, who seconded the suggestion of Madison’s
Fifth Article at Philadelphia, almost immediately after he had stated
that there would be no danger in permitting Congress to _propose_
amendments since “the final decision in the case will rest with the
people.” As we recall, Hamilton said this when the tentative Fifth
Article mentioned no one but the people, “conventions,” as the maker
of future Articles, because he and Madison and their associates at
Philadelphia, whose minds had so far been concentrated upon the
_national_ First Article, had not yet grasped the fact, later stated
by Hamilton to be his conviction, that all future changes would
probably relate “to the organization of government and _not to the mass
of its powers_.” We are, therefore, interested to find Hamilton, in New
York, on Friday, December 14, 1787, pointing out that “It has not a
little contributed to the infirmities of the existing _federal_ system
that it never had a ratification by the PEOPLE. Resting on no better
foundation than the consent of the several legislatures, it has been
exposed to frequent and intricate questions concerning the validity
of its powers.... The possibility of a question of this nature proves
the necessity of laying the foundations of our _national_ government
[the First Article grant of national powers] deeper than in the mere
sanction of delegated authority [referring directly to the state
legislatures which are mentioned in the Fifth Article]. The fabric of
American empire ought to rest on the solid basis OF THE CONSENT OF THE
PEOPLE. The streams of _national_ power ought to flow immediately from
that pure, original fountain of all legitimate authority.” (_Fed._
No. 22.) The capitals are those of Hamilton himself. We rather feel
that his stress upon the “PEOPLE” sharply contrasted with the state
“legislatures,” as the only legitimate direct source of _national_
power, such as is granted in the First Article and the Eighteenth
Amendment, will be somewhat of a shock to the “constitutional thinkers”
of 1917 and 1920. Sitting in the conventions of old, we rather
recognize the capitalized words, where Hamilton says that _national_
power in America “ought to rest on the solid basis of the CONSENT OF
THE PEOPLE,” as a direct echo from the Statute of ’76, enacted only
eleven years before those conventions. That Statute says that every
just power of government must be derived directly from the governed.
And we become rather convinced that Hamilton and Madison, when
submitting the Fifth Article at Philadelphia, never worded it so that
_national_ power in America could be granted through the illegitimate
authority of the state legislatures, when we read what either one
or both of them have to say on Tuesday, February 5, 1788, in _The
Federalist_, No. 49. “As the people are the only legitimate fountain
of power, and it is from them that the constitutional charter, under
which the several branches of government hold their power, is derived,
it seems strictly consonant to the republican theory to recur to the
same original authority”--a direct reference to the “conventions” of
the _Seventh and the Fifth_ Articles--“whenever it may be necessary to
enlarge, diminish, or new-model the powers of government.”
If we ever had any doubt as to what Hamilton meant the Fifth Article
to provide, our doubt is ended forever when we hear Hamilton, in
the New York Convention, speak of the state legislatures, which the
“constitutional thinkers” of 1917 and 1920 assume to have been made
attorney in fact for the American people for every purpose by that
Fifth Article. “Look through their history,” he says, speaking of
those state legislative governments. “What factions have arisen from
the most trifling causes! What intrigues have been practiced for the
most illiberal purposes! Is not the State of Rhode Island, at this
moment, struggling under difficulties and distresses, for having been
led blindly by the spirit of the multitude? What is her legislature but
the picture of a _mob_?” Most of the states “are either governed by
a single democratic assembly, or have a senate constituted entirely
upon democratic principles. These have been more or less embroiled
in factions, and have generally been the image and echo of the
multitude.... _Let us beware that we do not make the state legislatures
a vehicle in which the evil humors may be conveyed into the national
system._” (2 _Ell. Deb._ 317.) When Hamilton knew that these state
legislatures were not the legitimate source of national powers in a
republic and when he had _this_ view of their general character, will
any sane man believe that he advocated that the citizens of America
should make these legislatures (although the citizens of America
elect not a single member in them) absolute attorney in fact for the
citizens of America for all purposes? Will any sane man believe that
he proposed to substitute them, as grantors of _national_ power, for
the “conventions” of the Fifth Article, which “conventions” already
excited the admiration of the entire world, according to the author
of the Fifth Article, as the only safe or effective mode in which the
free citizens of a nation could vest its government with any power to
interfere with their own individual liberty.
“The authority of Constitutions over governments, and the sovereignty
of the people over Constitutions, are truths which are at all times
necessary to be kept in mind; _and at no time, perhaps, more necessary
than at present_.” This impressive statement of the truth that
the “governments,” state “legislatures,” never were placed by the
Fifth Article above the Constitution in which it is, and above the
sovereignty of the people, mentioned therein as “conventions,” and
cannot be placed there by another government, the Congress, is not a
statement made in the heat of the controversy about the Eighteenth
Amendment. It is the statement of James Madison, author of the Fifth
Article, made in the Virginia House of Delegates in 1799;
It is becoming almost impossible for us, as we sit in these conventions
and hear every word that is said, to understand the source of the
modern thought, if we can dignify it by calling it “thought,” that
the Fifth Article is a power of attorney from the citizens of America
to the state governments, every member of which is elected by the
citizens of the respective states and not by the citizens of America.
It is beginning to grow upon us that any such “thought” is based on
sheer assumption and that the entire record of the “conventions” is a
closed book to those who hold the assumption. We know that they have
the explicit statement of the Tenth Amendment, that the Constitution
gives no power of any kind to any donee except the one new American
government, the government with the enumerated powers of the First
Article. As no power of attorney was ever written or can be conceived
except one which grants the attorney in fact some power, the Tenth
Amendment makes absolutely certain that neither the Fifth Article nor
the entire Constitution gives to the state legislatures any power as
attorneys in fact for the citizens of America.
Moreover, breathing the atmosphere of those first “conventions” of the
kind named in the Seventh _and the Fifth_ Articles, the “conventions”
where individual liberty of the American is the only object of advocate
and opponent of the Articles under consideration, we begin to sense
that the holders of the impossible assumption have never fully grasped
the amazing and vital distinction between “state legislatures” and
“conventions” of the kind named in the Seventh _and the Fifth_
Articles. When we shall hear the “constitutional thinkers” of 1917
and 1920 speak of the “legislatures” and the “conventions” as two
different agents given omnipotent attorneyship in fact over all the
individual rights of the citizens of America, we shall wonder if these
thinkers appreciate that the “state legislatures” are permanent bodies,
always existing, and that the “conventions” of the Fifth Article are,
to the “conventions” in which we sit, bodies that never would have
an existence until some future moment, when the American citizens
themselves would again be called to assemble in and thus make those
“conventions.” Nothing could show more clearly that the “conventions”
of the Seventh Article looked upon the “conventions” of the Fifth
Article, not as the donee of any power of attorney, but as themselves
or their posterity, the citizens of America, assembling again to
determine whether there shall be any change in the distribution of
power to interfere with their individual liberty. And our thought,
re-echoed again and again by Marshall and others from the Bench of the
Supreme Court in the century that follows the first assembling of these
“conventions,” seems but the repetition of what we hear said in the
Massachusetts Convention as the tribute of its Americans to the Fifth
Article.
On January 23, 1788, the Americans, assembled in Massachusetts, took up
the consideration of that Article. As in every convention, there had
been great opposition to the earlier Articles; as in every convention,
nearly all of it had been to the great national powers of the First
Article granted to the new government and taken from the state
governments; and, as in every convention, almost all of this opposition
had been the continued complaint that the state governments were being
destroyed.
It was not that the Americans loved the state governments. The truth is
that, like every natural human being, they objected to all governments.
Their sole thought was fear of oppressive government infringement
upon their individual liberty. In this respect, the Americans in each
convention feared their own legislative government less than the new
proposed Congress, because they would elect all the members of the
former and only a few members of the latter. If it had been suggested,
by any of the many opponents of the new Constitution, that any possible
twisting of the words of the Fifth Article meant that governments
outside their state, not one of whose members they themselves would
elect, could infringe upon their every individual right, without
any constitutional restraint, the record of every convention would
have been one unanimous “NO,” against the new Constitution. But,
as no “constitutional thinker” of 1917 or 1920 sat in any of those
conventions, no such suggestion was ever made therein.
And so, on that January 23, we hear the Fifth Article read in that
Massachusetts convention, and we see Rufus King rising and we hear
him state that “He believed gentlemen had not, in their objections to
the Constitution, recollected that this Article was a part of it; for
many of the arguments of gentlemen were founded on the idea of future
amendments being impracticable.” He dwelt “on the superior excellence
of the proposed Constitution in this particular, and called upon
gentlemen to produce an instance, in any other _national_ constitution,
where the _people_ had so fair an opportunity to correct any abuse
which might take place in the future administration of the government
under it.”
And then we hear Dr. Jarvis: “Mr. President, I cannot suffer the
present Article to be passed, without rising to express my entire and
perfect approbation of it. Whatever may have been my private opinion of
any other part, or whatever faults or imperfections I have remarked,
or fancied I have seen, in any other instance, here, sir, I have found
complete satisfaction: this has been a resting place, on which I have
reposed myself in the fullest security, whenever a doubt has occurred,
in considering any other passage in the proposed Constitution. The
honorable gentleman last speaking has called upon those persons who
are opposed to our receiving the present system, to show another
government, in which such _a wise precaution_ has been taken to secure
to the _people_ the right of making such alterations and amendments,
in a peaceable way, as experience shall have proved to be necessary.
Allow me to say, sir, as far as the narrow limits of my own information
extend, I know of no such example. In other countries, sir,--unhappily
for mankind,--the history of their respective revolutions has been
written in blood; and it is in this only that any great or important
change in our political situation has been effected, without public
commotions. When we shall have adopted the Constitution before us, we
shall have in this Article an adequate provision for all the purposes
of political reformation. If, in the course of its operation, this
government shall appear to be too severe, here are the means by which
this severity may be assuaged and corrected.... _We_ have united
against the British; _we_ have united in calling the late federal
convention; and _we_ may certainly unite again in such alterations as
in reason shall appear to be important for the peace and happiness of
America.” (2 _Ell. Deb._ 116.)
No man ever voiced such sentiments, no conventions of Americans ever
listened to them, with any knowledge or thought that the Fifth Article,
“the wise precaution” to secure the liberty of the individual if the
government with the national powers of the First Article oppressed that
liberty, was itself a grant to another government, ten legislatures
outside of the Massachusetts in which that convention was held, to
infringe upon the individual liberty of every American in Massachusetts
on every subject without any constitutional restraint.
And so, we average Americans end our education in the only
“conventions,” named in the Seventh or the Fifth Articles, which yet
have assembled. And we end that education knowing that there is nothing
anywhere in the Constitution those conventions adopted, and especially
nothing in the Fifth Article, which changed the free American into
a subject of any government or governments in America. Everything
we have heard--and what we have repeated is but little of what we
have heard--serves but to emphasize the only meaning of its “apt,
precise and classic English,” the plain meaning which we got from its
language when we read it at the beginning of these conventions with the
Americans who made it.
It is, as its author explained it, naught but a constitutional mode of
procedure in which may be thereafter exercised, in a _constitutional_
manner, either the limited ability of state governments to make
Articles which do not concern themselves with the infringement of
individual liberty or the unlimited ability of the people themselves,
the “conventions” of the kind in which we have sat, to make any
Articles. The procedure prescribed for such constitutional exercise is
simplicity itself to those who sit in those conventions. It is exactly
the procedure just followed (up to the point where the work of any
proposer of a new Article and its mode of ratification must end) by the
Philadelphia Convention which drafted it and the other six Articles.
The Philadelphia Convention found itself without any CONSTITUTIONAL
mode of procedure in which could be evoked to exercise the existing
and exclusive power of the people of America to grant any government
power to infringe upon the individual liberty of the American citizens.
There being no _constitutional_ mode of procedure, no designated
body to draft Articles with such grants and to propose them and to
ascertain and propose the _valid_ mode of ratification for them, the
Philadelphia Convention did that work, guided only by basic American
doctrine, the Statute of ’76 and the experience of the “conventions”
which had made the national Articles of 1776. It followed a certain
mode of procedure in the doing of these things, knowing and stating
that to draft Articles and propose them and ascertain and propose the
right mode of ratification for them is not the exercise of any power.
With a knowledge which we of a later generation never should have
forgotten--and which we who have been educated with them never will
forget--the Philadelphia Convention knew that there were two makers of
Articles in America, each of which had exercised its respective and
different ability to make them, during the eleven years which preceded
the Philadelphia Convention. They knew that every Article that was
_national_ could be made by no one but the people themselves, the
“conventions,” which had made the _national_ Articles of ’76 and which
are named as the makers of all future Articles _of that kind_ in the
Seventh and the Fifth Articles proposed by Philadelphia.
And so, when the Philadelphia Convention had drafted its Articles
and was about to propose them, it recognized the legal necessity of
ascertaining, from the nature of those Articles, whether they were in
the power of both or only of one of those existing makers of Articles.
In the ascertainment, with their minds on the First Article grants of
national power to interfere with individual liberty, they knew that
no governments in America could make an Article _of that kind_. Their
ascertainment was then ended and they knew that they _must_ propose
that mode of ratification which would send their Articles to the only
valid ratifiers, the people themselves, the “conventions” of the
Seventh and the Fifth Articles.
This was the procedure they had followed, when there was no
_constitutional_ mode of procedure provided. And so, with the
extraordinary wisdom that characterized everything they did, that
Philadelphia Convention wrote exactly the same procedure into the
Fifth Article so that never again there might be lacking in America a
_constitutional_ mode of procedure for the evoking and the exercise
of the only power that is ever exercised when constitutional Articles
are made, the power of making them. As the Philadelphia Convention
ended its existence with its own proposals, some new body had to do
that work, when any new Article was to be proposed. As the work of
the Philadelphia Convention had not been the exercise of any power
but merely the work of proposing, it was a certainty that the new
_constitutional_ mode, exactly the same mode as that of Philadelphia,
would also be the exercise of no power. And so, the Philadelphia
Convention named the Congress (or a convention demanded by the state
legislatures) to do the work of the Philadelphia Convention in drafting
and proposing any new Article, and it named the Congress to perform
the duty of ascertaining (by the nature of the new drafted Article)
_which_ of the two makers could make it, and then to propose a mode of
ratification by which it would be _validly_ ratified by such competent
maker. As to the only powers ever to be exercised in the making of any
new Article, the power of legislatures to make _federal_ Articles, and
the exclusive power of the people or “conventions” to make _national_
Articles, the _constitutional_ mode of procedure did not (nor could
it, if Americans were not to become “subjects”) give the governments
any of the exclusive ability of the people or “conventions,” and it
did not (nor could it, if America were to be a republic) alter the
existing ability of the majority of the American people to make their
governments what they will. But, for the very practical purpose which
Madison so clearly explained, the purpose of providing some check
upon the tyranny of the majority or an aggressive minority over the
individual rights of all Americans, the Fifth Article procedure could
and did fail to provide any CONSTITUTIONAL method in which government
power to interfere with individual liberty, as all surrendered power
_of that kind_ was distributed between different governments in the
Constitution, could be changed in any way or transferred from one
government to another, unless the “conventions” of the American
citizens _in_ three fourths of the states said “Yes” to any proposed
change or transfer.
The Philadelphia Convention having proposed this particular check upon
the existing ability of the people themselves to oppress individual
liberty, a check which makes the words “by conventions in three fourths
thereof” by far the most important words, the Fifth Article goes on to
prescribe exactly the same check on the exercise of the ability of the
state legislatures to make _federal_ Articles.
That the Fifth Article, a constitutional mode of procedure for the
exercise of two different existing abilities, was _not a grant_ of any
power to the state legislative governments is something that was known
to every man in the conventions which made that Fifth Article.
In the Pennsylvania convention, Wilson plainly stated the knowledge
of all that the supreme power “_resides_ in the people, as the
fountain of government; that the people have not--that the people
meant not--and that the people ought not--to part with it to any
government whatsoever. In their hands it remains secure. They can
delegate it in such proportions to such bodies, on such terms, and
under such limitations, as they think proper. I agree with the members
in opposition, that there cannot be two sovereign powers on the same
subject.... My position is, sir, that, in this country, the supreme,
absolute, and uncontrollable power resides in the people at large.” (2
_Ell. Deb._ 456 et seq.)
When more than half a century had passed, the same thing was known to
those who knew American Constitutional Law.
“It is obviously impossible for the whole people to meet, prepare and
discuss the proposed alterations, and there seems to be no feasible
mode by which an expression of _their_ will can be obtained, except
by asking it upon the single point of assent or disapproval. But no
body of representatives, _unless specially clothed with power for that
purpose by the people when choosing them_, [ergo, no permanent state
governments or legislatures] can rightfully take definitive action
upon amendments or revisions; they must submit the result of their
deliberations to the people--WHO ALONE ARE COMPETENT TO EXERCISE THE
POWERS OF SOVEREIGNTY IN FRAMING THE FUNDAMENTAL LAW--for ratification
or rejection.”
So spoke the great Cooley in reference to making changes in _national_
constitutions in his work on Constitutional Limitations (7th ed., 1903,
at p. 61).
When one hundred and seventeen years had passed since the conventions
in which we just sat, the same thing was known in the Supreme Court, in
1907.
The powers the people have given to the General Government are named
in the Constitution, and all not there named, either expressly or by
implication, are reserved to the _people_ and can be exercised only by
_them_, or upon further _grant_ from _them_. (Justice Brewer in Turner
v. Williams, 194 _U. S._ 279.)