CHAPTER XABILITY OF LEGISLATURES REMEMBERED
Living through the days of that Convention, we have now seen three months and ten days of its sincere and able effort to word a Constitution which would “securethe Blessings of Liberty” to the individual American. We have seen them spend most of their time in the patriotic endeavor to adjust and settle how much, if any,nationalpower to interfere with individual freedom that Constitution shall give to its only donee, the new and general government. In other words, we have seen the mind and thought and will of that Convention almost entirely concentrated, for those three months and ten days, upon the Article whichisthe constitution of government, the First Article, with its enumerated grants of general power to interfere with the human rights of the American citizen.
Keeping in mind the object of that intense concentration, the First Article grants of powerof that kind, we average Americans note,with determined intent never to forget, the effect of that concentration upon the wording of our Fifth Article up to that tenth day of September. We note,with determined intent never to forget, that, from May 30 to September 10, theonlymaker of future changes mentioned was the “people” of America, the most important reservee of the Tenth Amendment, the “conventions” of the American people named in both the Seventh and the Fifth Articles.
As this factand its tremendous meaninghave never been known or mentioned in the sorry tale of the five years from 1917 to 1922, we average Americans are determined to dwell upon it briefly so that we cannot escape an accurate appreciation of the short remaining story of the one week at Philadelphia, in 1787, in relation to our Fifth Article.
Only a week earlier,becausethe First Article did grant enumerated powers to interfere with individual rights, the Convention had known that the seven articles must go to the people directly to saytheir“Yes” or “No” to those grants of the First Article. For that reason the Convention (considering limited legislative ability to makefederalArticles and omnipotent ability of the “people” to make all Articles) had decided that itMUSTpropose the mode of ratification by the “people,” the “conventions” of the Seventh and the Fifth Articles. As Marshall later authoritatively stated in the Supreme Court, thelegalnecessity of deriving national powers from the people themselves, the “conventions,” wasthenknown and acknowledged by all.
It was natural, therefore, up to that September 10, that a convention, concentrated entirely upon grantsof that kind, when wording its Article with a mode of procedure for making future changes, should have forgotten any changes exceptof the kindon which its own mind was concentrated and should have mentioned in its amending Article, up to September 10, no maker of future changes except the people themselves, “conventions” of the Seventh and the Fifth Articles.
And, at this point, we average Americans note,again with intent never to forget, that if the one competent maker of such Articles, the “conventions,” hadremained the only maker of Articlesmentionedin the Fifth Article, even the great “constitutional” lawyers of 1920 would never have made the monumental error of assuming that the Fifth Article was a grant of power (to those who made it and all the original Constitution) to make future Articles. Eventheywould have noticed andappliedto their reading of the Fifth Article the well known legal fact that grantors never can and never do grant to themselves what they already have or a part of it.
Therefore, noting and remembering these significant facts, we turn with interest to the short story of how those able Americans at Philadelphia, their minds no longer exclusively concentrated on their own enumerated grants, remembered that there was another maker of Articles withexistingbut limited ability to makefederalor declaratory Articles. And, with interest, we shall learn how this last week thought caused the Convention to change the Fifth Article by adding a mention of that existing limited ability and prescribing the mode of its futureconstitutionalexercise.
That we average Americans may never be misled by inaccurate statements of the short story of how the mention of that limited ability was added to the mention of the unlimited ability of the “people” or “conventions” of the Fifth Article, it is fitting that the full record of the story be given verbatim. It adds not a little to our amusement that the story is copied from the brief of the leading “constitutional” lawyer of 1920 who championed the validity of the Eighteenth Amendment on the remarkable assumption and error, common to all his associates and his opponents, that the new mention changed the Fifth Article into agrantof ability to those legislatures instead of what itsauthor, Madison, knew and stated that Article to be, a “mode of procedure” for the futureconstitutionalexercise either of that existing limited ability or the other existing unlimited ability of the “people” or “conventions” of the Seventh and Fifth Articles. This is the record of that September 10, as copied from that brief, beginning immediately after Hamilton had voiced his opinion that there could be no danger in letting Congressproposean Amendment “as thepeoplewould finally decide in the case.”
“Mr. Madison remarked on the vagueness of the terms, ‘call a Convention for the purpose’ as sufficient reason for reconsidering the Article. How was a Convention to be formed? by what rule decide? what the force of its acts?
“On the motion of Mr. Gerry to reconsider
“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. (Ayes—9; noes—1; divided—1.)
“Mr. Sherman moved to add to the article ‘or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.’
“Mr. Gerry 2ded. the motion.
“Mr. Wilson moved to insert ‘two thirds of’ before the words ‘several States’—on which amendment to the motion of Mr. Sherman
“N. H. ay. Mas. (no). Ct. no. N. J. (no). Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. (Ayes—5; noes—6).
“Mr. Wilson then moved to insert ‘three fourths of’ before ‘the several Sts.’ which was agreed to nem: con:
“Mr. Madison moved to postpone the considerationof the amended proposition in order to take up the following,
“‘The Legislature of the U.S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as parts thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S.’
“Mr. Hamilton 2ded. the motion.
“Mr. Rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition: ‘provided that no amendments which may be made prior to the year 1808, shall in any manner affect the 4 & 5 sections of the VII article.’ The postponement being agreed to,
“On the question On the proposition of Mr. Madison & Mr. Hamilton as amended
“N.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N.C. ay. S.C. ay. Geo. ay. (Ayes—9; noes—1; divided—1.)”
IIFarrand, 558, 559.
No American citizen, now living or in the generations to come, if he values at all the human liberty which the entire Constitution was established to secure, can spend too much time in reading and understanding that short record. It is the record left by Madisonhimself, even though it be copied from the brief of the leading “constitutional” lawyer of 1920 who maintained his whole argument for the Eighteenth Amendment on the ground that we have been “subjects” of an omnipotent government, his clients, since the day, June 21, 1788, when that Fifth Article was enacted by the American people to secure “the Blessings of Liberty for themselves and their posterity.”
As we shall later find herein, it is the claim of all who believe the new Amendment to be in our Constitution, although they have hitherto not understood their own claim, that the words of the Article, which appear in that short record, are the words which changed the American individuals, free men from July 4, 1776, into subjects of an omnipotent government, composed of the legislative governments of a fractional part of the states. Moreover, as we shall also later learn herein, this absurd and amazing claim is based wholly on the monumental error of assuming, without the faintest suggestion or proffer of support for such an assumption, that the new wording of the Fifth Article, as proposed by Madison on September 10, changed the amending Article into a grant of ability to make every kind of Article. The monumental error fails to see that Madison merely added to the previous mention of the unlimited ability of the people or “conventions” a similar mention of the existing limited ability of the state legislative governments to makefederalArticles or Articles which neither exercise nor grant power to interfere with human freedom. Moreover, as we shall also learn later herein, the extraordinary and unfounded assumption (that the amending Article was changed on September 10 into agrantof ability to make Articlesinstead of a recognition and mention of two existing different abilities, one of which had always been mentioned therein) has been hitherto concurred in by every one who has challenged the validity of the Eighteenth Amendment.Theyhave only differed from the supporters of the new Amendment in contending that the impossible grant, absurdly imagined to have been made by the grantors tothemselvesas well as to state legislatures,wasagrantof limited ability but did not include the ability to make an amendment such as the Eighteenth.
When we do come later herein to the briefs and arguments of the opponents and supporters of the supposed Eighteenth Amendment, we shall look in vain to find therein the faintest suggestion of a claim that there is anything in the record of September 10, 1787, to justify their extraordinary and unfounded assumption that the Fifth Article, on that day, was changed so as to make it a grant of power from the “conventions” of the people to the “conventions” of the whole American people and to the state legislatures. On the contrary, we shall find every opponent of the supposed new Amendment making easy the way of its supporters by joining in the common assumption of all and predicating every argument against the new Amendment on the same extraordinary assumption that the Fifth Articleisa grant of power to the grantors and to the state governments. Not once, in any brief or argument of the most renowned lawyers in America, shall we find even the faintest knowledge of two facts which must be soifthe Fifth Articleisa grant of power to the two supposed grantees. That each of the two facts is a patent absurdity will not alter the logic that they must be facts,ifthe Fifth Article is a grant to thosetwo grantees. The first patently absurd fact is that, if the Fifth Article is a grant, the “conventions” of 1788 granted tothemselves, the supposed grantors, exactly the same omnipotent power to make all Articles, which the grantors (a supposed grantee) were exercising at the very moment when they made the Fifth Article. The second patently absurd fact, if the Fifth Article is a grant, is that the whole people of America, assembled in their “conventions,” after eleven years as free men, voluntarily relinquished that status to become, as the whole people of America, “subjects” of the same legislative governments who are one of the supposed donees of the absurd and imaginary grant. This remarkable fact follows as the logical conclusion of the concept that the “conventions” granted to the “conventions” and to the state governments, with Congress to determine which shall exercise it, the very omnipotent power which the people themselves (the supposed grantors) were then exercising in their “conventions” and which eleven years before they had denied to the British Parliament. When we later realize that none of our modern leaders saw either absurd fact to be the certain result of the concept that the Fifth Articleisa grant, we average Americans ought certainly to be convinced that, if we wish to keep our individual rights in any matter, it is going to be necessary for us to understandfor ourselveshow our Constitution secures those rights to us.
Forewarned of such necessity, we return with renewed interest to the examination of the record of the day on which it is assumed that Madison suggested that the Fifth Article should be changed into a “grant” and then proposed to the American people, so that they might voluntarily relinquish their status as free menand become “subjects” of a government with omnipotent ability to legislate in restraint of their individual freedom “in all matters whatsoever.” It ought not to detract from our amusement that this remarkable proposal of such a “grant” (as our modern leaders see it) was to go to the American people in each state and there be approved by that people with the knowledge that the people in that particular state, on the occasion of a future proposal, might not elect a single member of the legislative governments who would exercise that omnipotent power over their every individual right.
Our amusement is not lessened when we find that the supposed “grant” was suggested by Madison and seconded by Hamilton. The Philadelphia Convention was being held in the America which had just emerged from an eight year Revolution to establish the doctrine that no government could be omnipotent in its ability to interfere with individual freedom. The Convention itself had devoted three months and ten days, before the day in question, to bitter dispute about giving even enumerated powersof that kindto the American government mentioned in the First Article. It is therefore, with great amusementbut with serious intent never to forget, that we note that not a single voice was raised in the Convention either to uphold or to protest this supposed and absurd “grant” of omnipotence to an entirely different government. On the contrary, as we note with intent never to forget, the newly worded Article was treated by the Convention as if everyimportantmatter in it had been settled before the state governments were even mentioned in it as makers of the kind of Articles which they already had the power to make,federalArticles. As soon asthe newly worded Article had been suggested by Madison and Hamilton, the Article which Madison himself describes as aconstitutionalmode for the exercise of existing abilities to make Articles, only one change (utterly unimportant now) was suggested in the new wording. This was the suggestion that the Article should not provide aconstitutionalmode in which existing ability to interfere with slavery could beconstitutionallyexercised prior to the year 1808. This change was immediately made by the Convention. Then, without the slightest objection to any other part of the supposed absurd “grant,” the Convention approved the newly worded Article.
From the absence of one word of protest we quite clearly realize that no man in that Convention so misconstrued the simple statement of Madison’s Fifth Article as to read into it an imaginary “grant” of any ability whatever to the state legislative governments. We realize that these men, who were accurate thinkers, knew that the “conventions” named in this Madison Article were exactly the same “conventions” which Philadelphia had already named in what we know now as the Seventh Article. We realize that they knew at once, when Madison proposed his Article, that the “conventions” named in it, like the same “conventions” named in the Seventh, were “We, the people” of America, named in the Preamble. And, from a moment’s reflection, we are aware that the delegates at Philadelphia immediately knew that Madison was not making the absurd suggestion that the American people, the “conventions” of the Seventh and Madison’s new Article, shouldgrant, in the very “conventions” of the Seventh, tothemselves, anything whatever of power, either all or part of the power whichthey would be then exercising in those “conventions.” From which it follows, as the night the day, that the delegates also knew that if Madison’s Article was not a grant by the “conventions” to the “conventions,” it was not a grant to the “legislatures.” For which reason we will not dwell at all upon the obvious fact that there is not the slightest suggestion of a word of grant in the Fifth Article.
Before emphasizing the absurdity of the thought that the Americans at Philadelphia ever intended the plain statement of the Fifth Article to be a “grant” of power of any kind, it seems proper that we should grasp at once what it clearlywasunderstood by them to be. Their understanding and knowledge of its meaning become very clear to us, whenweread it, as they heard it from Madison, fresh from their great debate as to the grant of enumerated powers in their First Article and their proposal of a ratification by “conventions” as the only valid mode of ratification for an Article which grants power to interfere with human freedom. We recall now that, when Madison suggestedhisFifth Article to them, on September 10, the echoes were still ringing of the sound statements of Madison and others that Philadelphiamustpropose a mode of ratification by the people or “conventions” because legislatures never could be competent, in America, to make Articles which did constitute government by granting power to interfere with human freedom. Whenweread Madison’s Fifth Article, with the same statements still fresh inourminds, we realize at once how the delegates at Philadelphia recognized, in the Madison Article, the meaning of every reference to the duties imposed upon, not the powers granted therein, to Congress. The delegates had metat Philadelphia with purpose and intent to draft andproposeconstitutional Articles in their judgment best designed to secure human liberty to Americans, and then, after they had drafted their Articles and knew the nature of such Articles, whethernationalorfederal, toproposea mode of ratification in which their proposed Articles would be made by those competent to make them.
When September 10 had come they had finished their work of drafting their Article, which constituted government, the First Article. For the purpose of reaching their decision as to the valid mode of ratification for an Article ofthat kind, they had considered and discussed the existing unlimited ability of the “people” or “conventions” to make all Articles, and the existing limited ability of the state legislatures to make some. The unerring decision which they had made was that their Articles would not be validly made, because the First Article constitutednationalgovernment of men, unless they proposed a mode of ratification by the “conventions” of the American people.
We note, with intent to remember, that they were well aware that drafting and proposing an Article did not make it valid or part of a Constitution and thatproposinga mode of ratification did not make it a valid mode, unless the ratifiers were competent to make the proposed Article. We recall that Wilson, who appears in the brief record of September 10, later made clear the knowledge of those at Philadelphia that theirproposalof Articles and theirproposalof a mode of ratification could not make either valid, that the making of aproposalis not the exercise of any power.
In the Pennsylvania convention he said: “I comenow to consider the last set of objections that are offered against this Constitution. It is urged that this is not such a system as was within the powers of the Convention; they assumed thepower of proposing.... I never heard, before, that to make a proposal was an exercise of power.... The fact is, they have exercised no power at all; and, in point of validity, this Constitution, proposed by them for the government of the United States, claims no more than a production of the same nature would claim, flowing from a private pen.” (2Ell. Deb.469-470.)
Now, if Wilson and the other delegates at Philadelphia, on September 10, knew that to make a proposal was no exercise of power, they clearly understood that Madison’s Fifth Article, when it stated that Congress mightproposean Amendment and Congress mightproposea mode of ratification, was an Article which purported to grant no power to Congress. If we recall the truth, which Madison so often expressed, that it is the privilege of any citizen or body of citizens to propose that existing power be exercised, we realize that, if the Fifth Article had not mentioned Congress as the maker of either proposal, Congress would still have had full ability to make either or both proposals at any time. As the delegates at Philadelphia knew this as well as we now know it, as we have been helped to our appreciation of it by them and their statements, it is apparent how instantly they knew that the mention of Congress, as theproposerof an Amendment and as theproposerof its mode of ratification, meant that Congressalonewas to be left with—not given—the duty which they had assumed themselves to perform at Philadelphia. That duty, as they knew and we now know, was todraft a proposed Article and, after it had been worded, to examine it and its nature and (with the validity of their ultimate proposal absolutely determined by that nature) then to propose the Article and a mode of ratification for it which would mean ratification by those competent to ratify an Article ofits particular kind. In other words, they knew that, whenever Congress performed the duty they had just performed themselves, after an Article had been drafted, it would be legally necessary for Congress, as it had been for them at Philadelphia, to consider the existing and different abilities of the “people” or “conventions” and the state legislatures to make Articles, and from that consideration to ascertain a competent ratifier for the particular Article they had drafted and, the validity of the ratification to depend entirely on the accuracy of their ascertainment and not on their own proposal of ratification, to propose a mode of ratification in which that Article would be made by those competent to make it. With the meaning and effect of a “proposal” so clearly known to them all, with their own immediate recent experience in the performance of the very duty which Madison’s Fifth Articleleftthe duty of Congress in the future, it was a simple matter for these delegates at Philadelphia to know exactly what was the only possible meaning of Madison’s words, when the same “shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the legislature of the U. S.”
How accurately Madison himself knew all this, how accurately he knew that the Philadelphia proposal would validate neither proposed Articles nor proposedmode of ratification, and that Congress proposal in the future would never validate either proposed Article or proposed mode of ratification, he has not left to speculation.
It was the charge of the opponents of the proposed Constitution that the Philadelphia Convention had exceeded its powers in proposing those Articles. Madison defended himself and his Philadelphia associates inThe Federalist, Number 40, published in the New YorkPacketon Friday, January 18, 1788. With his logical mind, he echoed the knowledge of Wilson and his other colleagues, who had drafted and proposed the Articles and proposed their ratification by the “people” or “conventions” of the Seventh and the Fifth Articles. It was his knowledge, as it was their knowledge, that the Philadelphia proposals were, as the future Congress proposals would be, no exercise of power and that the validity of any Article, proposed at Philadelphia or proposed by Congress, must always depend, notmerelyupon its being ratified in the mode proposed respectively by Philadelphia or by Congress, but also—and immeasurably the most important test of valid ratification—upon its being ratified by ratifiers competent to make the particular Article.
It was his knowledge, as it was their knowledge, as it is now our knowledge, that if a proposed Article directly interfere with or grant power to interfere with human freedom, as the First Article, or the Eighteenth Amendment, it can never be validly made by government but only by the “people” of the Tenth Amendment; the “conventions” of the “Seventh” and “Fifth” Articles.
Among other things, in his defense of himself and his Philadelphia associates, this is what Madison saidof them: “They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of thepeopleto ‘abolish or altertheirgovernments as tothemshall seem most likely to effect their safety and happiness,’ since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by someinformal and unauthorized propositionsmade by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege ofproposingto thepeopleplans fortheirsafety and happiness that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and thatconventionswereelectedinthe several statesfor establishing the constitutions under which they are now governed;... They must have borne in mind that as the plan to be framed and proposed was to be submittedto the people themselves, the disapprobation of the supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.”
And so we come from that September 10, 1787, with the accurate knowledge that Madison then proposed and Hamilton seconded and all the delegates adopted the first amending Article which evermentionedthe state governments as makers of any future Amendments. And we know that they did so with the unmistakable intent and understanding that it changednot at all the existing inability of any governments in America to create, for themselves or for other governments, anynationalpower to interfere with the citizens of America in the exercise of their human freedom. And we also come from that record with the certain knowledge that the Madison Fifth Article of September 10 merely provided that, when future Articles were suggested, the Congress should play the part which the Philadelphia Convention was playing, which part involved no exercise of power of any kind, and that such part of Congress should consist in merelyproposingan Article andproposingits mode of ratification. And we also come from that day with the equally certain knowledge, which we do not intend to forget, that Madison himself knew clearly that the valid ratification of future Articleswoulddepend, as he knew the valid ratification of the Philadelphia Articlesdiddepend, not on the fact that ratification was in the mode proposed but on the fact that the proposer of a mode of ratification should propose a mode in which the proposed Article could be made by those competent to make an Articleof its particular kind.
For these reasons, if the supporters of the Eighteenth Amendment expect us, now educated with those earlier Americans up to and including the record of September 10, 1787, to believe that the Madison Fifth Article, first worded on that day, purported to grant or was understood and intended by Madison and his colleagues to grant any power to the state legislative governmentsinAmerica over ourselves, the citizens of America, we shall hereafter listen, with naught but amusement, to these amateur “constitutional” thinkers and their effort to change legal fact into fiction by assumption. Confirmed by our education with Madisonand the others who had all to do with the wording and the making of that Fifth Article of September 10, 1787, we recognize, even if these “constitutional” thinkers do not recognize, that we ourselves are the “conventions” of the Fifth Article in which sit the American people to exercise their exclusive ability to grant to government any power to interfere with their individual freedom. We have now, even if these “constitutional” thinkers never have had, the knowledge of the legal necessity that powerof that kindmust be derived from ourselves, the “people” of the Tenth Amendment and the “conventions” of the Seventh and the Fifth Articles—the necessity in 1787 “felt and acknowledged by all.” We know, as Marshall knew in one of those “conventions” of 1788 and as he knew and stated on the Bench of the Supreme Court, that there is but one way in which we, the citizens of America, can act safely oreffectivelyor wisely on the subject of new interference with our individual freedom, by assembling in our “conventions,” the “conventions” of the Fifth as well as the Seventh Article.
And so, with our knowledge and certainty that the Madison Fifth Article of September 10 never could change the status of the free American into that of the subject of an omnipotent government, we come to the last business day of the Philadelphia Convention, September 15, the only other day on which the Madison Fifth Article, with itsmentionof legislative ability to makefederalArticles but notnationalArticles, was ever considered at Philadelphia.
On that day the Committee of Style reported the seven Articles which we now know as our Constitution. The Madison amending Article, except that “the legislature of the U. S.” was called “the Congress,” wasidentical with that of September 10. As it is important that we Americans shall never be told anything about the record of September 10 or September 15, in relation to this Madison Fifth Article, which is not something thatisin the record, that we may be given no distorted version of what happened in that Convention about the only Article which ever mentioned state “legislatures” as makers ofsomefuture Articles, we shall have again the pleasure of reading the entire record of September 15. Again we read it from the brief of the great “constitutional” lawyer of 1920 who argued on the assumption that this Article, worded by Madison, was intended to make us and did make us, the citizens of America, the subjects of an omnipotent government, composed mostly of the client governments whom he represented in the Court Room of 1920. This is his record of the full story of September 15 in relation to the Fifth Article of Madison, from which record this “constitutional” lawyer and his associates hope to derive—how we know not—some support for this belief and this argument.
“Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
“Col. Mason thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the properkind would ever be obtained by the people, if the government should become oppressive, as he verily believed would be the case.
“Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of two thirds of the Sts.
“Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum etc. which in Constitutional regulations ought to be as much as possible avoided.
“The motion of Mr. Govr. Morris and Mr. Gerry was agreed to nem: con (see: the first part of the article as finally past)
“Mr. Sherman moved to strike out of art. V. after ‘legislatures’ the words ‘of three fourths’ and so after the word ‘Conventions’ leaving future Conventions to act in this matter, like the present Conventions according to circumstances.
“On this motion
“N.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. no. Del. no. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—3; noes—7; divided—1.)
“Mr. Gerry moved to strike out the words ‘or by Conventions in three fourths thereof’
“On this motion
“N.H. no. Mas. no. Ct. ay. N.J. no. Pa. no. Del. no. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—1; noes—10.)
“Mr. Sherman moved according to his idea above expressed to annex to the end of the article a furtherproviso ‘that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate’
“Mr. Madison Begin with these special provisos, and every State will insist on them, for their boundaries, exports, etc.
“On the motion of Mr. Sherman
“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. ay. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—3; noes—8.)
“Mr. Sherman then moved to strike out art. V. altogether
“Mr. Brearley 2ded the motion, on which
“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. divd. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—2; noes—8; divided—1.)
“Mr. Govr. Morris moved to annex a further proviso—‘that no State, without its consent shall be deprived of its equal suffrage in the Senate’
“This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.”
11Farrand629-631.
At once we notice with interest that these men, renowned as the marvelous leaders of a people better acquainted with the science of government than any other people in the world, men who have spent three entire months and fifteen days in their wonderful effort to frame a constitution which will secure “the Blessings of Liberty” to all American individuals and their posterity, still have no knowledge whatever, the weird and marvelous knowledge of 1917 and 1920, that this Madison Fifth Article gives to the state governmentsthe very omnipotence which the American people, by a successful Revolution, had just wrested from the British Parliament. We note with interest Mason’s objection to the Madison “mode of procedure” in which may thereafter be exercised the limited ability of these very state governments to makefederalArticles and the unlimited ability of the people or conventions to makenationalArticles. Mason’s objection, having direct reference to the grant ofnationalpowers in the First Article and his fear (the continued and expressed fear for the next two years in the “conventions” of the Seventh and the Fifth Articles) that the people may find theseenumeratedpowers oppressive, is that, if the peopledofind them oppressive, Congress, which has these powers, will neverproposean Amendment to take any of these powers away from Congress. For which reason Morris and Gerry moved to amend the Article so that, if Congress does not propose an Amendment for which there seems to be a demand, the legislatures of two thirds of the states may insist that Congress call a convention and that such convention mayproposean Amendment. This suggestion was carried.
We next find Sherman moving to strike out the words “three fourths” after the word “legislatures” and after the word “conventions.” This motion was defeated. We next find,and we fix firmly in our mind with intent never to forget, that Gerry moved to strike out of Madison’s Article all reference to the “people” of the Preamble and the Tenth Amendment, the “conventions” of the Seventh and the Fifth Article, as the makers of any future Articles or changes in the Constitution. His motion was “to strike out the words ‘or by conventions in three fourths thereof.’”
Asalmostevery one, during the last five years, including the sponsor of the Eighteenth Amendment in the House of Representatives, seems to have had an edition of our Constitution, in which the Fifth Article does not contain these words, and aseveryone, during the same five years, has argued and acted as if these words were not in the Fifth Article or have no meaning whatever of the slightest importance, we intend to noteand never forgetthat Gerry’s motion to strike these words out was beaten by a vote of ten to one.
As we know, the “people” of Americathemselvesare identified by the word “conventions” in this Fifth Article, just as they are identified by the same word in the Seventh Article. As we know,we ourselves—the posterity of the “people” of the Preamble—are identified by this word “conventions” in the Fifth Article, just as we are identified in the Tenth Amendment as the most important reservee thereof by the word “people.” Wherefore our interest in this motion of Gerry and its overwhelming defeat is only exceeded by our absolute amazement, for the last five years, at the universal ignorance of the fact that itwasdefeated and of the fact thatweare mentioned in the Fifth Article as the only competent makers of any new Articles which either directly interfere or grant power to interfere with our individual freedom.
We do not know, and to an extent we do not care, what was the purpose of Gerry. Gerry was always an opponent of a Constitution which vestednationalpower in a general government. He was an advocate of the continued complete independence of each state and its government and of a merefederalunion of states with a purelyfederalconstitution. He was also always a consistent Tory in his mental attitude as tothe relation of human being to government. If he had been successful in striking out any mention of ourselves, the “people” or “conventions,” leaving only the mention of the state legislatures, with their existing ability to makefederalArticles, it would have been impossible that any furthernationalpower (beyond the grants of the First Article) be vested in the general government or taken from each state government, as only we ourselves could makenationalArticles like the First. We surmise that a mixture of his Tory mental attitude and his opposition to a general national government (which minimized the importance and diminished the independent sovereignty of each state government) prompted his motion. That his motion was overwhelmingly defeated is the only important fact for us American citizens. We shall not forget it even if our leaders and our “constitutional” thinkers forget it and ignore it.
We have no further interest in the short record of that September 15. No other change was made in the Madison Fifth Article except to take out of it anyconstitutionalmode of procedure for the exercise of the existing ability of ourselves, the “people” or “conventions,” to deprive any state of an equal representation in the Senate with every other state. We still can do that, but we have noconstitutionalmode of procedure under the Fifth Article by which we can exercise our ability to do it. This change was not, however, as so many have absurdly thought, an exception to an imaginary power which we ourselves, the “conventions” of the Seventh Article and the “people” of the Preamble and the Tenth Amendment, in those very “conventions,” “granted” to ourselves, the same “people” and “conventions” mentioned in the FifthArticle. It was a recognition of our existing ability, about to be exercised in those “conventions,” the ability of the supreme will in America to deprive any state of its equal representation in the Senate; and it was our own exclusion of that ability from anyconstitutionalexercise. The reflecting mind will remember that, in the heated arguments at Philadelphia, there was strong sentiment in favor of asking us, the people of America, the “conventions” of the Seventh Article, to exercise our exclusive ability in that very respect and make the Senate a body composed of members elected from larger proportions of the people than the members of the House of Representatives. It was the recollection of that effort which prompted the request that our exclusive ability to do that very thing should not be provided with aconstitutionalmode of future exercise.
We average Americans may now leave, in our present education, the entire story of that wonderful Convention at Philadelphia. We leave it with a knowledge of our Constitution we never had until we had lived with those Americans through the actual record of those three months and seventeen days from the end of May to September 17, 1787. We bring from it a knowledge that brooks no contradiction. We are certain that nothing in any of the Articles proposed at Philadelphia purported to give the state legislatures any power of any kind whatever, in the Fifth Article or anywhere else, either to interfere with the individual freedom of the American citizen or to grant the power of such interference to themselves or to our only government, the Congress. We bring from that Convention the knowledge that,unlesssomething in the conventions of the American people, the “conventions”of the Seventh Articleand the Fifth Article, changed the free men of America, the citizens of America, into subjects of an omnipotent legislative government, we ourselves in 1923 are still the citizens of America and possessors of the supreme will in America and are subjects of no government or governments in the world.