CHAPTER IX
THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS”
It has been the misfortune of our prominent Americans of this generation that they read the Fifth Article with preconceived notions of its meaning. To the error of that method of reading it, we average Americans will not pay the tribute of imitation. We know that its meaning to those who made it in the “conventions” of the earlier century is the meaning which it must have as part of the supreme law of the land. That we may read it as they read it and get its clear and only possible meaning, as they got it, we shall briefly review the story of its wording and its proposal at Philadelphia. That Convention immediately preceded the assembling of the people in their own “conventions.” In each of their “conventions,” among the people assembled, were some who had been prominent at Philadelphia, such as Madison and Randolph and Mason in Virginia, Hamilton in New York, Wilson in Pennsylvania and the Pinckneys in South Carolina. Moreover, between the Philadelphia proposal and the assembling of these conventions, Madison and Hamilton, proposer and seconder of the Fifth Article at Philadelphia, had been publishing their famous essays, now collectively known as The Federalist, in the New York newspapers to explain the Articles worded at Philadelphia and to urge their adoption. Under which circumstances, it is clear that, if we want to read and know the meaning of the Fifth Article as it was understood in those conventions, the Fifth Article which named those same “conventions,” we must complete our education by an accurate and brief review of the story of that Article at Philadelphia. Only in that way shall we average Americans of today be in the position in which were the Americans who made that Article.
When we read that story of Philadelphia, in relation to the Fifth Article, one thing stands out with amazing clarity and importance. We already know how that Convention, until its last days, was concentrated upon the hotly debated question of its own proposed grants of national powers in the First Article. In the light of which continued concentration, it is not surprising to learn that, until almost the very last days, the delegates forgot entirely to mention, in their tentative Fifth Article, the existing and limited ability of state legislatures to make federal or declaratory Articles, and mentioned only “conventions” of the people, who alone could or can make national Articles.
The first suggestion of what we now know as the Fifth Article was on the second day, May 29, when the Randolph Resolution 13 read “that provision ought to be made for the amendment of the Articles of union whensoever it shall seem necessary.” This wording was the exact language of Resolution 17 of the report of the Committee of the Whole. It was adopted by the Convention on July 23. Three days later, with the other Resolutions, it was referred to the Committee of Detail “to prepare and report the Constitution.” On August 6, this Committee, in the first draft of our Constitution, reported the following: “Art. XIX. On the Application of the legislatures of two-thirds of the states in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose.”
We see clearly why the delegates, their minds concentrated on their own proposed grants of national powers, mentioned only the people themselves, the “conventions” of the “Seventh” and “Fifth” Articles, who alone can make national Articles, and forgot to mention legislatures, because the latter never can make national Articles. That kind of Article was the only thing they were then thinking about. Naturally, it then escaped their attention that, if they proposed a wise and proper distribution of national power between the new American government and the respective existing state governments, almost every future Article, if not every one, would be of the federal kind, which legislatures or governments could validly make, as they had made all the Articles of the existing federation. Clearly for that reason this Article XIX never even mentioned the existing and limited ability of legislatures.
Between this report of August 6 and August 30, the Convention was again entirely occupied with the grants of national power and the election of the legislators to exercise it or, in other words, with what is now the First Article. On August 30, Article XIX was adopted without any debate.
We are now aware that the Convention was within two weeks of its end and no one had mentioned, in what is now the Fifth Article, the state governments or legislatures as possible makers of federal Articles, if and when such Articles were to be made in the future.
It was not until September 10, Monday of the last Convention week, that Article XIX again came up for action, when Gerry of Massachusetts moved to reconsider it. His purpose, as he himself stated it, was to object because it made it possible that, if the people in two-thirds of the states called a convention, a majority of the American people assembled in that convention “can bind the Union with innovations that may subordinate the state constitutions altogether.” Hamilton stated that he could see “no greater evil, in subjecting the people in America to the major voice than the people of any particular state.” He went on to say that he did think the Article should be changed so as to provide a more desirable “mode for introducing amendments,” namely, drafting and proposing them to those who could make them. In this respect he said: “The mode proposed was not adequate. The state legislatures will not apply for alterations, but with a view to increase their own powers. The national legislature will be the first to perceive, and will be most sensible to, the necessity of amendments; and ought also to be empowered, whenever two-thirds of each branch should concur, to call a convention. There could be no danger in giving this power, as the people would finally decide in the case.” (5 Ell. Deb. 531.)
Roger Sherman of Connecticut then tried to have the Article provide that the national government might also propose amendments to the several states, as such; such amendment to be binding if consented to by the several states, namely, all the states. For reasons that will appear in a moment, this clear attempt to enable the states, mere political entities, and their legislatures, always governments, to do what they might wish with the individual freedom of the American citizen—thus making him their subject—was never voted upon. It was, however, seconded by Gerry of Massachusetts. Its probable appeal to Sherman, always a strong opponent of the national government of individuals instead of the federal government of states, was that it would make it difficult to take away any power from Connecticut, unless Connecticut wished to give it up. Its appeal to Gerry, consistently a Tory in his mental attitude to the relation of government and human being, was undoubtedly the fact that it would permit government or governments to do what they might wish with individual freedom. It does not escape the attention of the average American that our governments and leaders, during the last five years, have not only displayed the mental attitude of Gerry but have also acted as if the proposal, which he urged, had been put into what is our Fifth Article. Only on that theory can we average Americans, with our education, understand why governments in America have undertaken to exercise and to vest in our government a national power over us, which power neither is enumerated in the First Article nor was ever granted by the citizens of America to their only government; nor can we understand why our leaders have assumed that governments in America, which are not even the government of the American citizens, can do either or both of these things. We know, if governments and leaders do not, that neither thing can ever be possible in a land where men are “citizens” and not “subjects.”