CHAPTER XICONVENTIONS CREATE GOVERNMENT OF MEN

The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now.Being a grant of powers to a government its language is general.... While the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grant of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded. (Justice Brewer, in the Supreme Court, South Carolina v. United States, 199U. S.437, at p. 448.)It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words; but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. (Scott v. Sandford, 19How.393, p. 426.)

It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words; but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. (Scott v. Sandford, 19How.393, p. 426.)

From which common sense statements of what always has been both reason and law, we know that whatever the Fifth Article meant to those who made it, in the conventions named in it as well as in the Seventh Article, it means today. There is no better way in which we can grasp its meaning to the American people assembled in those conventions, than by sitting with them and reading it as they read it,with their fresh knowledge of all the wonderful things in which they had participated from the Statute of ’76 to the proposal from Philadelphia of 1787. As we have just lived through all that period with them, we are in a wonderful position to read it and understand it as they understood it. Moreover, we are in a wonderful position to listen to the statements of the men in those “conventions.” In those statements, whether by advocates or opponents of the Constitution, we shall find the invincible negation—without one dissent—of the absurdassumptionthat Madison’s Fifth Article is a “grant” of any abilityto makeArticles. In those statements, we shall find all discussion of that Fifth Article centering upon the one question, i.e., whether it provides a practical mode of procedure in which the exclusive ability of the “people” or “conventions” can defend individual rights bywithdrawalof some part of the power of interference therewith granted in the First Article. Mason had pointed out at Philadelphia that the procedural provisions of the Fifth Article—and it consists entirely of procedural provisions for the exercise of existing powers—leftthe drafting and proposal of Amendments entirely to governments. For which reason, in the “conventions,” Henry and all the great opponents of the Constitution argued that, if the individual Americans found the grantednationalpowers of the First Article dangerous to human liberty, the “people” or “conventions” would never get theconstitutionalopportunity to exercise their ability to withdraw.

“You”—the “you” being the individual Americans assembled in one convention—“therefore, by a natural and unavoidable implication, give up your rights to the general government.... If you give upthese powers,” the enumerated powers of the First Article, “without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw—a government that has abandoned all its powers—the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights—without check, limitation, or control. And still you have checks and guards; still you keep barriers—pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless,” the state legislatures mentioned in the Fifth Article, “and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?”

So thundered Henry in the Virginia convention. (3Ell. Deb.446.)

“To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut. Let us consider this plain, easy way.” Then follows the verbatim statement of the Madison Fifth Article as proposed from Philadelphia. “Hence it appears that three fourths of the states must ultimately agree to any amendments that may be necessary. Let us consider the consequence of this. However uncharitable it may appear, yet I must tell my opinion—that the most unworthy characters may get into power and prevent the introduction of amendments. Let us suppose—forthe case is supposable, possible, and probable—that you happen to deal those powers to unworthy hands; will they relinquish powers already in their possession, or agree to amendments? Two thirds of the Congress, or of the state legislatures, are necessary even to propose amendments.... To suppose that so large a number as three fourths of the states will concur is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous. It would indeed be miraculous that they should concur in the same amendments, or even in such as would bear some likeness to one another; for four of the smallest states, that do not collectively contain one tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six tenths of thepeoplemay reject these amendments.... So that we may fairly and justly conclude that one twentieth part of theAmerican peoplemay prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments. A trifling minority may reject the most salutary amendments. Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such.” (3Ell. Deb.48.)

So thundered Henry against the weakness of the Madison procedure in which only by proposal from governments could there beconstitutionallyevoked theexclusiveability of the citizens of America to dictate how much power to interfere with individual freedom should be left for the citizens of each state to use in governing themselves, and how much powerof thatkindshould be retained by the individual people of America themselves. Henry was opposing a Constitution in which the individual people of America were dictating that their general government, the Congress, should have only the enumerated powers of that kind which are in the First Article. In it, they were dictating that each state government, except as the American people forbade it, should have just so muchof that kind of poweras the citizens of that particular state should grant that government. And in it, they were dictating that the people of America themselves, the most important factor and reservee of the Tenth Amendment, should retain all other powerof that kindto be granted only by themselves, the “conventions” of the Madison Fifth Article. Throughout all his thunder against that Constitution, Henry, like every other opponent of that Constitution, never questioned that this was the exact distribution of power to interfere with individual freedom whichwasdictated in the Constitution. His only complaint, and their only complaint, was that the Madison Fifth Article,becauseits constitutional procedure could only be evoked by a proposal from governments, was no protection to human liberty against the granted powerof that kindin the First Article. The absurd thought of our modern “constitutional” thinkers (contradicting the plain statement of the Tenth Amendment and contradictingeverythingthat was said in the “conventions” that made the Fifth Article) is that the Article itself is a “grant” of omnipotent power to governments (the legislative governments of the states) to interfere with individual freedom. When we contrast the knowledge of Henry and his colleagues with the modern absurdity, we echo Henry’s words and exclaim,“We suppose that we are mad, or that our modern constitutional thinkers are so.” If Henry had read into that Fifth Article, if the opponents of the proposed Constitution had read into it, any “grant” of ability to state governments, certainly it was an absurdity for him to refer to those governments as “weakened, prostrated, enervated” by the proposed Constitution.

And so, educated in the experience of those Americans who assembled in those “conventions” named in the Seventh and Fifth Articles, we sit with them in the conventions of that earlier day and read that Fifth Article with them, while they decide to make it with the six other Articles. Living through their experience, like them we have become “a people better acquainted with the science of government than any other people in the world,” so far as government is intended to secureindividualliberty and happiness. When we sit with them, we intend not to forget, as they never did forget in those conventions, that this was the sole purpose of the Constitution they considered and made, the purpose of securingindividualliberty and happiness. In this respect, they differed in their whole philosophy of government with the new school of thought that, in our day, has its different manifestations of exactly the same philosophy of government on the part of the Bolshevik in Russia and the minority in America which has dictated that government enactment of the new constitution of government, known as the Eighteenth Amendment.

The Americans of ’76 and ’87 set the individual liberty and freedom of man above everything in this world except the Divine Will of the Creator of man. In the Preamble of their Constitution, they echo thedeclarations of their Statute of ’76. Their creed was that the laws of right and wrong are immutable; that the Creator made the individual man and granted human freedom to him; that such freedom is inherently subject only to the Divine Will, the immutable law of right and wrong, but that it may voluntarily become subject, by the will of the individual man, to the exercise of powers of interference which only he and his fellow men themselves can ever validly grant to government.

“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” (Madison or Hamilton,Fed.No. 51.)

When we sit in the conventions of 1787 and 1788 with the Americans who had this common concept of the only purpose of government of men, their concept is our own as we read with them the language of the Fifth Article. And it is impossible for us, as it is impossible for them, to find concealed in that language the thought of a “grant” to government, a “grant” which would challenge this concept of the very purpose of government. They are sitting in “conventions” assembled to determine whether American individuals will enter into the new society of men, which is to be America. They have received the Fifth Article from Americans in Philadelphia, who have accompanied the proposal of that Fifth Article with a letterwhich states, “Individuals entering into society must give up a share of liberty, to preserve the rest.” This statement is recognized by the Americans, in the “conventions” where we sit, as the exact statement of the concept of the sole purpose of a government of men. With that concept and that letter before us, how can we or the Americans with whom we sit find in the Fifth Article the remarkable idea that Americans, entering the society of America, are to give up all their liberties to the state governments in order that Americans may preserve the rest of their liberties?

In these modern days, however, there has asserted itself, in Bolshevik Russia and in the America of which we are the citizens, two distinct manifestations of an entirely different concept of the purpose of government than was the concept of the Americans in the “conventions.” Although the manifestation of the new concept by the Bolshevik in Russia has been different from the manifestation of the new concept by an aggressive and organized minority in America, the new concept, at the bottom of each manifestation, is exactly the same. It is the concept that the purpose of constituting a government of men is to secure the welfare of the state or community or nation and not the liberty and happiness of the individuals who compose the nation. This is the exact concept of the Bolshevik Russian and the Eighteenth Amendment American. To neither of them would the words of that letter from Philadelphia convey the slightest meaning, the words “individuals entering into society must give up a share of liberty, to preserve the rest.” In their mutual concept, the individual has no liberty which government need respect. In the Bible of their concept,men cannot find the words which declare the basic American principle, that every just power of government must come from the individuals who are to be governed by its exercise. It is, however, a misnomer to call this common concept of the Bolshevik Russian and the Eighteenth Amendment American anewconcept. It is identical with the old concept known as “Socialism,” the concept that community welfare, the prosperity and power and strength of a nation, are more important things than individual liberty and happiness and enjoyment of human freedom. It is a concept which sets the state (a political entity created by men) and the welfare of the state above what the Americans of ’76 and ’87 knew and proclaimed to be superior to all human creations, namely, the individual man, the noblest creation of the Divine Creator. In other words, the common concept of the Bolshevik Russian and the new Amendment American is but the reaction to the century-old concept whose repudiation was the main theme of the Declaration of Independence, the concept that individual men, the creation of God, are made for kings or governments or political entities.

To those who hold such a concept there comes no shock when they are asked to imagine that the language of the Fifth Article implies a grant of ability to the state governments to do what those governments will with the liberties of the citizens of America. But we are sitting in “conventions” of Americans of a different type, Americans who, eleven years earlier, have repudiated forever the concept that men are made for kings or governments or political entities. And, if we wish to know what the Americans in these conventionsthink of the concept of the Bolshevik Russian and the Eighteenth Amendment American, we get our wish from the man who wrote the language of the Fifth Article.

“We have heard of the impious doctrine in the Old World,” the reactionary doctrine of modern Russia and of our own aggressive minority, manifested in two different disguises, “that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape—that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?... As far as the sovereignty of the states can not be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us.”

This is the language of Madison, inThe Federalist, Number 45, asking the individual Americans to make the Constitution to secure their individual happiness. It will amaze us later herein to hear the thought of our modern “constitutional” thinkers that his Fifth Article makes the state governments (from whom that Constitution took sovereignty to secure the individual happiness of the American citizen) a supreme and omnipotent government of the American citizens, a government knowing no will but its own. Meanwhile let us forget this latter day nonsense and breathe again the real American atmosphere, where individuals, entering a society, give up a share of their liberty, to preserve the rest. Let us sit with the real “constitutional” thinkers of America as they sat in the conventionsand read with them the Fifth Article worded by Madison. This is what they read:

ARTICLE V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Sitting with these Americans, intheir“conventions,” we note immediately, as they note, that the Article namesthemselves. And we note, as they note, that it names themselves, the individual American citizens, the “people” of the Preamble and the Tenth Amendment, by exactly the same name, “conventions,” as in the Seventh Article and as in the Resolution of the Philadelphia Convention,which proposed the only valid mode of ratification for the constitution of government of men in the First Article, the mode which required ratification by the individual Americans themselves, the “conventions” of the Seventh and the Fifth Articles.Wecannot help noting it—as we intend never to forget it—becauseweare sitting with them, as the people of America, in the very “conventions” so named in the Seventh Article.

Having their vital and accurate knowledge of the difference betweenfederalandnationalArticles, that only the latter kind exercises or grants power to interfere with individual human freedom, we recognize at once why the state legislatures are also mentioned in the Fifth Article, although they never can makenationalArticles. We know it is because those “legislatures,” as the Tenth Amendment expressly declares, retain their existing ability to makefederalArticles or Articles which neither exercise nor grant power to interfere with individual freedom. And, sitting in those “conventions,” where Hamilton also sits, we recall his remarkable prophecy, just made to us inThe Federalist, as we were about to enter the “conventions” with the other Americans therein. “For my own part, I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government,not to the mass of its powers.” (Fed.No. 85.) In that absolutely accurate advance knowledge of the complete history of constitutional amendment from 1789 to 1917, we recognize the motive which prompted Madisonand Hamilton, on September 10, 1787, to add the mention of those legislative governments to the Fifth Article mention of theexclusiveability of the people or “conventions” to make all future Articles whichdorelate to the “mass of its powers” to interfere with individual freedom conferred upon the one government of America. We understand that these legislative governments are mentioned in the Fifth Article, which we are now reading in the “conventions” of old, because those “legislatures” have an existing ability to makefederalArticleswhich relate to other things than thenationalpower of government to interfere with individual freedom.

Having thus satisfied ourselves, in those conventions, that we ourselves, the “people” of America,arementioned in the Fifth Article as the sole makers of any future Article which exercises or grants power to interfere with our individual freedom, we turn with interest to the procedure which the Article establishes as the onlyconstitutionalmode of procedure in which that exclusive ability of our own may hereafter be evoked to exercise and be exercised.

From the language of the Article itself, we know at once that it is simply the statement of a mode of procedure in which our own unlimited ability or the limited ability of the state legislatures, when the occasion seems to arise for the respective exercise of either ability, are hereafter to be evoked by some body of men, playing the part which the Philadelphia Convention has just played in evoking our own exclusive ability, the ability of the “people” or “conventions.”

Outside the language of the Fifth Article itself, many other things make that fact clear to us. For instance, we recall what Madison has just told us. He had written this Article at Philadelphia. Then, asking the American people to prescribe thisconstitutionalmode of procedure for the future exercise of either respective existing ability, he has explained to us, just before the convention in which we sit, what the Fifth Article means.

“That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, thatA MODE FOR INTRODUCING THEMshould be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety.It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and State governmentsTO ORIGINATEthe amendment of errors, as they may be pointed out by the experience on one side, or on the other.” (Fed.No. 43.).

Sitting in the conventions of more than a century ago, we are naturally uninfluenced (in our reading of plain English) by the story of a century which has not even yet begun, the century that later began in 1800. And so we get from his own words the knowledge that the author of the Fifth Article knew it to be nothing but aconstitutionalmode of procedure, for the future exercise of either ability to make Articles. We see that the modeleaveswith either “the general and state governments” the ability toproposean Amendment to those with existing power to make the particular proposed Amendment. And we note, with intent to remember, that the author of the Fifth Article, while he tells us about this reservation of existing abilities toproposeamendments, pointedly doesnottell us that the Articlegrantsany power to any government or governments tomakeAmendments. In other words, we know that the Fifth Articlereservesto the general government and to the state governments exclusively whatotherwisethey and every one else would have had—what Madison himself called “the unauthorized privilege of any respectable citizen or body of citizens”—the abilityto propose, but that it does notgrantto any of those governments or all of them collectively the ability which none of them ever had or can have, the abilityto make, constitutional Articles of anationalkind, which relate to interference with individual freedom. With this knowledge confirmed by the clear statement of the author of the Fifth Article, we read with interest its procedural provisions about the originating of new Articles, about their drafting and their proposal and the proposal of a mode of ratification for them, after they have been drafted and their nature has determined who can make them.

Sitting in those conventions of old, we are in the company of many of the men who were at the Philadelphia Convention. In Virginia we see Madison and Randolph and Mason and others; in New York we see Hamilton and others; in Pennsylvania we see Wilson and others; in South Carolina we see the Pinckneys and others. That is our experience in all the conventions. On all sides, among the American people assembled therein, are those familiar with and talking about the work at Philadelphia and the great debate there, in which wasascertained, from the character of the Articles drafted there,whichmaker of Articles, the state legislatures, with their existing ability to make federal Articles, or the “people” themselves, the “conventions,” with their existing unlimited ability to make all Articles, could make the Articles drafted and about to be proposed. These men, by their presence and their words, remind us how the nature of their First Article, the fact that it constituted government to interfere with human freedom, compelled the announcement of the decision that legislative governments could never makethatkind of an Article. These men, by their presence and their words, remind us how they reached the ascertainment of the fact whichcompelledtheir Proposing Resolutionto proposea mode of ratification by the “people” themselves, by the “conventions”of the Seventh and the Fifth Articles. They remind us, as one of the men with us later said in the Supreme Court, that all assembled in our “conventions” feel and acknowledge the legal necessity that every power to interfere with individual freedom must be derived by direct grant from the people. And, sitting in those conventions with them, where we all read the Fifth Article they are asked to make, we recognizewith certaintythat it prescribes that the Congress shall do exactly what the Philadelphia Convention has just done—propose, and nothing more.

The words of the Fifth Article tell us that only Congress shall draft and propose a new Article, just as the Philadelphia Convention drafted and proposed its new Articles; that, after Congress has drafted its new Article and is about to propose it, just as the Philadelphia Convention did,when it exercised no power at all, Congress shall examine carefully the nature of the drafted Article and, having ascertained by such examinationwhichexisting ability to make Articles (the limited ability of legislative governments or the unlimited ability of the “people” or “conventions”) is competent to make that particular Article, Congress shall propose ratification by the ability which can make the proposed Article.

We are not misled because the Article prescribes this oneconstitutionalmode to evoke the existing limited ability or the existing unlimited ability. Providing aCONSTITUTIONALmode for the exercise of either does not lessen one ability or increase the other. By reason of our education, we know the difference between therevolutionaryexercise of existing power and theconstitutionalexercise of existing power. Because we have become of the “people better acquainted withthe science of government than any other people in the world,” we know that to do something in a revolutionary manner does not necessarily mean to do it by bloodshed or on the battle-field. We know that to do something in a revolutionary manner means to do it outside of any legally prescribed mode of procedure for the exercise of existing power. We know that to do the same thing, in aconstitutionalmode, is to do it in some mode prescribed by human law or constitution. And that is why we understand, as did the men with whom we are sitting in those conventions, that Congress, in the future, is to do exactly what the Philadelphia Convention didand nothing more. Congress is to do itconstitutionally(where the Philadelphia Convention did it outside of any human law and in arevolutionarymanner)becausethe Fifth Article commands that Congress alone shall do it. Congress, when doing it, will be exercising no power. The Philadelphia Convention exercised no power when it did exactly the same things. And, when Congress does it, Congress will be bound, as Philadelphia was bound, to ascertain and propose the mode of ratification by which the proposed Article will be ratified by ratifiers competent to make that particular kind of an Article.

As we sit in the “conventions” and keep clearly in our mind that the “conventions” and the “state legislatures” (both of which are mentioned in the Fifth Article) each have existing but very different abilities to make Articles, every part of the language of the Fifth Article confirms our knowledge that the whole Article is no “grant” of power but is a “constitutional” mode for the exercise of existing powers.

Long after the conventions in which we sit, the Supreme Court paid the tribute to those who wrote theFifth Article that they were “masters of apt, precise and classic English.” Keeping this thought in mind, our attention is directed to the three-time use of the one word “propose” in the Fifth Article. We know that to use the same word three times in one sentence is very poor Englishunlessthere is a distinct and definite intent and purpose that the meaning each time shall beidenticallythe same. Such definite intent and purpose is the only deduction from what would otherwise be the inexcusable tautology of the language of the Fifth Article. So, when we read that Congress “shallproposeamendments” or shall “call a convention forproposingAmendments” and that “one or the other mode of ratification may beproposedby the Congress,” we know with certainty that each use of the word “propose” is intended to convey an identical shade of meaning. From which we know that, as theproposalof a new Article (by Congress or a Convention) will be a mere proposal and will not make the proposed Article valid, so also the Congressproposalof a mode of ratification will remain a mere proposal and will not make that proposed mode valid for that proposed Article, unless its proposed ratifiers are competent to make that particular kind of an Article. This is what they had just known at Philadelphia about their own proposals (both of Articles and of mode of ratification) to us as we sit in the “conventions.” And so, in these conventions, we know the proposals mentioned in the Fifth Article to be identical (in nature) with the proposals made from Philadelphia. We know the procedure outlined in the Fifth Article to be exactly the same procedure as has just been followed at Philadelphia. We know that our ratification (in these “conventions”) of that procedurewill be our approval of the procedure they followed at Philadelphia and will be its prescription as theCONSTITUTIONALprocedure hereafter to be followed when either existing ability, that of the state governments or that of ourselves in “conventions,” is to be hereafter evoked to exercise. From all of which we recognize that, if Congress should propose a mode of ratification by state legislatures and the proposed Article is a grant of power to interfere with the individual liberty of the American citizen, the state legislatures will remain just as incompetent to make that Article as they were known to be at Philadelphia when Madison and his colleagues held them to be incompetent to make their proposed Article of that kind, the First Article. And so we understand that the mere Congress proposal of a mode of ratification (forsuchan Article) by state governments will not give state governments ability to make such an Article.

Sitting in those old conventions, we now have read the procedural provisions of the Fifth Article up to the point where proposals bring, in aconstitutionalmanner, a proposed new Article to makers with existing ability to make the particular Article which has come to them.

We now read with interest the next chronological step of the procedural provisions, the mention of the two existing makers of Articles—the state legislatures, makers of federal or declaratory Articles, and the “conventions” of the American citizens, makers of any Article.

We are actually sitting in “conventions” identical with those named in the Fifth Article. We are in the “conventions” mentioned in the Seventh Article and named therein by exactly the same word as is usedin the Fifth Article, the word “conventions.” Both Seventh and Fifth Articles have been worded at Philadelphia. We, assembled in the “conventions” named in the Seventh Article, are the whole American people. In our conventions, so assembled, we are to make both the Seventh and the Fifth Articles, with their common use of exactly the same word “conventions.” And so we understand, with a knowledge which nothing can disturb, that the “conventions” of the Fifth Article mean exactly what the “conventions” of the Seventh Article mean. Thus we know, with knowledge which nothing can disturb, that the “conventions,” named in both Articles, are the American people, only competent makers (in 1787 or at any future time) ofnationalArticles which interfere with or grant power to interfere with the individual freedom of the American citizen.

We recall vividly the proposal that came from Philadelphia eleven years earlier or in 1776, that the Americans in each former colony constitute a government with such powers to interfere with the human freedom of its citizens. We recall that such governments were constituted in what Marshall states to be the only way in which men can act safely, effectively or wisely, when constituting government of themselves, namely, by assembling in “conventions.”

We also recall vividly the proposal that came from the same Philadelphia a year later or in 1777, that the states constitute a federal government of states. And we recall that the state legislatures, because they possessed existing ability to makefederalArticles, did validly make thefederalArticles suggested in that proposal.

We also recall, that the new Constitution, which isbefore us in the “conventions” named in the Seventh Article, is to be both anationalConstitution, constituting government of men, and afederalConstitution, constituting government of states. And we recall that only one of the present Articles in that proposed Constitution, the First Article, constitutes government of men by granting government power to interfere with individual freedom. And we recall, with Hamilton in the Convention beside us, the probability that all future Articles in that dual Constitution, will probably be of thefederalor the declaratory kind which the existing ability of state legislatures can make.

And so we understand why Madison and Hamilton, in their Fifth Article, mention that existing ability of the state legislatures to make Articles which do not relate to interference with individual freedom, as well as they mention our own exclusive ability, the ability of the “conventions” of the American people, to make Articles which do relate to interference with individual freedom.

And, sitting in those conventions with the “people better acquainted with the science of government than any other people in the world,” when we read the language of the Fifth Article, it is impossible for us to make the monumental error of assuming that the mention of the two existing abilities adds anything to one or subtracts anything from the other.

And so, with our minds in those “conventions” free from any possibility of such monumental error, we now read and clearly understand the most important words in theconstitutionalmode of procedure for existing powers, which we know as the Fifth Article. To none of the Americans in those conventions is there any doubt, to no American, who understands whatAmerica is, can there ever be any doubt, whatarethe most important words. They are the words “in three fourths thereof” immediately following the words which name the very kind of “conventions” in which we sit. These words, “by conventions in three fourths thereof,” bring home to us the marvel of what our “conventions” are doing.

In them sit the people of America, possessors of the supreme will in America, assembled in their respective states, as free men and not as the citizens of the particular state in which each convention of Americans assembles.

We realize, as the Preamble of the Constitution before us expressly declares, what is the first proposal upon which we act affirmatively, when we say “Yes” to the whole proposal from Philadelphia. The first effect of that “Yes” is that we, that part of the American people in that particular state, do consent (with the Americans in eight or more other willing states) to join the new nation or political society of men, which is to be America, and that we consent to be, with those other Americans, the citizens of the new nation as soon as the Americans in eight other willing states give their similar “Yes.” We are well aware, as we sit in one of the “conventions,” that the Philadelphia proposal has left it open for the free Americans in each state to become members or not of the new society as they please, and that, therefore, the joining of that society, by the Americans in at least nine states, will mean that the new nation is created by unanimous action of the majority in every state whose Americans become citizens of America.

From which we realize that the original grants of national power byitscitizens to the only governmentof the new nation will be the second effect of the “Yes” from the Americans in nine conventions. Thus these original grants, the First Article grants of enumerated power to interfere with the individual freedom of the American citizen, will be made simultaneously by the majority of Americans ineverystate where Americans become citizens.

But, once these early Americans leave those first “conventions,” the whole American people will constitute the members or citizens of the new nation, America.

The people of these United States constitute one nation. They have a government in which all of them are deeply interested. (Justice Miller in the Supreme Court, Crandall v. Nevada, 6Wall.35.)

As in any other republican nation, allnationalpowers must be granted by its members or citizens. Any futurenationalpower, not granted by the citizens themselves, will be neither just nor valid because power of the American government to interfere with the freedom of the American citizen will not have been granted by those to be governed by its exercise.

But, when the whole American people leave these “conventions” as the united citizens of America, although it will be wise and proper and necessary that American citizens shall hereafter assemble in “conventions” in their respective states for the making of new proposed grants of power to interfere with their freedom, it will no longer be necessary that a “Yes” fromevery“convention” should be given to any future grant ofsuchpower. When the whole American people assembled in those first conventions, a “Yes” from every “convention”wasnecessary because that “Yes” meantthe willingness of the Americans in that state to become citizens of America. But, once they all have becomeitscitizens, it is in that capacity—and not as citizens of each respective state—that the American government will interfere with their individual freedom.

And it now dawns upon us, probably for the first time, how imperative it is that the new Constitution should contain an explicit command, prescribing how the vote of each “convention” should count and how many “convention” votes should be sufficient and necessary for any future proposed grant of power to interfere with the freedom of American citizens. This brings home to us the impressive and important meaning of the words “in three fourths thereof” after the word “conventions” in the Fifth Article.

If they had not been written therein by the genius of the men at Philadelphia, the method of counting the vote of each “convention” and the number of “convention” votesCONSTITUTIONALLYrequisite hereafter for a new grant ofnationalpower would be a matter of infinite dispute. And so we recognize and pay our tribute, as we sit in one convention of the first American citizens, to the wonderful foresight of Madison and Hamilton and their colleagues at the Philadelphia Convention which has just completed its labors. That tribute is evoked by the words “three fourths thereof” after the word “conventions.”

We see that these words end all possibility of dispute in two important respects where dispute would be certain if theCONSTITUTIONALmode of procedure did not containourcommand that, when future “conventions” are asked for further grant of power to interfere with our individual freedom, the “Yes” of eachconvention shall count as one “Yes” and a “Yes” from three fourths of the “conventions” shall be both necessary and sufficient to make a new grant ofsuchpower. And, as we dwell upon these amazingly important words, their presence in the Fifth Article compels a greater tribute to the men who wrote them than that demanded by the fact that this ends the possibility of the disputes we have mentioned. It grows upon us that these words are among the most important securities to individual liberty in the whole Constitution. With increasing admiration for the men at Philadelphia, we sit in those early “conventions” and recall how much Madison and his colleagues have just told us inThe Federalistabout the danger to individual right from the tyranny of the citizens of a republic themselves, whether that tyranny is attempted by a majority or an aggressive minority of such citizens. We recallThe Federalist, Number 51, and its forceful exposition of the merits of the proposed Constitution and its remarkable distribution of powers (powersgrantedto the new government in the First Article, powersleftwith each state over its own citizens and powersretainedby the American people themselves) as security for individual rights.

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence arises a double security to the rights of the people.... It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classesof citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. Thesecondmethodwillbe exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.... Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.... In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those ofjustice and the general good.... It is no less certain than it is important, understanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And, happily for therepublican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of thefederal principle.” (Fed.No. 51.)

In those important words of the Fifth Article, “in three fourths thereof” after the word “conventions,” wenowrecognize the judicious mixture of the federal principle in our own command which controls our futureCONSTITUTIONALexercise of our exclusive ability to create new power to interfere with our individual freedom.

These words do not challenge or disturb the legal American necessity that our American government must get any new powerof that kindfrom us ourselves, assembled in our “conventions.”But, with a practical wisdom never exceeded in framing the “constitution” of a self-governing nation, these words impose an amazingly effective check upon the existing ability of a majority or aggressive minority, in the republic which is America, to interfere with individual rights. These words do not attempt to destroy or alter that existing ability of the citizens of the new republic. On the contrary, these words recognize the existence of that ability. But, with the wisdom which means so much security to every individual right in America, these words make it impossible that such ability can beCONSTITUTIONALLYexercised unless a majority or an aggressive and organized minority, when seeking new government power to interfere with the individualfreedom of the American citizen, obtain a majority support from the American citizens residing in every one of three fourths of the state in America.

Leaving (just for a moment) the conventions of the old days, we of this generation realize with gratitude the check so provided. We understand now, as we never understood before, why the organized minority which demanded that government write the new Amendment into our Constitution was driven by this constitutional check to ignore the plain fact that the new Amendment can never validly be put into the Constitution (if we still are citizens and not subjects) unless a “Yes” from the “people” themselves, the “conventions” of the Fifth Article, is obtained from three fourths of those “conventions.” We realize that the organized minority in question must support their proposition on the concept that Madison and Hamilton, who introduced and seconded the Fifth Article at Philadelphia, intended that Article “to create a will in the community” (which is America) “independent” of the supreme will of the American people themselves, intended it to create that anomaly of a superior will to the supreme will and to make that superior will the will of the legislative governments of a fraction of the states. We refer that organized minority to the quoted words of Madison or Hamilton, referring to such creation of a will independent of the people themselves: “This, at best, is but a precarious security, because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method [not the creation of a will independent of the human members of the society] will be exemplified in the federalrepublic of the United States,” the very Constitution of which contains the Fifth Article. We average Americans are now satisfied, beyond dispute, that neither Madison nor his associates in the early conventions, to which we will now return, understood or meant that the Fifth Article would or should create such an independent will.

Sitting again in the conventions of old, we recall exactly the same thought expressed by Madison himself inThe Federalist, No. 10, where he says: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great object to which our inquiries are directed.... Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such co-existent passion or interest, must be rendered, by their numberand local situation, unable to concert and carry into effect schemes of oppression.” These thoughts, from the worder of the Fifth Article, sink deep into our minds and hearts as we sit in those conventions. They come before us with startling clearness, when we read his words in that Article, “conventions in three fourthsthereof,” and his words in reference to that Fifth Article mode of procedure, “In requiring more than a majority, and particularly in computing the proportion bystates, not bycitizens, it departs from thenationaland advances toward thefederalcharacter.” (Fed. No. 39.)

We realize that his mode of procedure isnational,in its strict conformity to the Statute of ’76, that all power over the people must comedirectlyfrom the people, but that a judicious mixture of thefederalsystem, incountingthe votes of the people, is the best check human ingenuity has yet devised to protect individual rights against a tyrannical majority or an aggressive minority.

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