Citizen or subject?

As we sit in those conventions and dwell upon the wisdom of the practical thought which inspired those words, “in three fourths thereof” after the word “conventions,” we know why the people with whom we sit compelled the tribute that they grasped the science of government better than any other people in the world. The one aim of all of them was the happiness and welfare of the individual. The welfare or prosperity of the political entities, which we know as America and the respective states, were of no importance to these people, except as they contributed to the welfare of the individual. The prestige and the power of each and every government in America and of all governments in America together were of no importance to these people, except as they contributed to the welfare of the individual.

And when we sit with them in their conventions, after living with them through their experience from 1775, we realize (as we have never realized before) that the Statute of ’76 was enacted, that the national constitutions of government were made by the people in each colony, that the sacrifices of the Revolution were endured for eight years, that the federation of states was established by states in 1781, that the wisdom and ability and patriotism of America had just assembled at Philadelphia in 1787 and made its proposal which we are considering in these conventions—all that the welfare of the INDIVIDUAL might be secured. We realize that the wisdom and ability and patriotism of America, at Philadelphia, had labored for months to ascertain, by the light of all human experience, in what proportion (solely to secure the welfare of the individual) power to interfere with individual freedom ought to be surrendered at all to governments and retained by the people, and in what proportion the quantum of surrendered power should be left with each state government over its own individuals and given to the new general government over its individual citizens. We realize that the wisdom and ability and patriotism of America, at Philadelphia, had known that no governments, then or in the future, if individual welfare was to be secured, could ever legally determine either proportion or could ever alter either proportion, when once established by the supreme will in America, the “people” of the Preamble and Tenth Amendment, the “conventions” of the Seventh and Fifth Articles.

And so we, of this later generation, sit in those “conventions” of the Seventh Article and we read the Fifth Article, where the same “conventions” are named, and look with awe upon the practical wisdom which dictated these words “in three fourths thereof,” after that mention of those “conventions” of the American people in the future. We realize now that those words are among the greatest securities to individual welfare written into the proposed Constitution by the wisdom and ability and patriotism of America, at Philadelphia. In that Constitution, other great securities protect individual welfare against usurpation from outside America and against usurpation by government or governments in America beyond the exercise of the national powers granted to each government by its own respective individual citizens. But this particular great security of individual welfare, the words “in three fourths thereof,” secures individual welfare against the unjust oppression of a majority or an aggressive minority of the Americans themselves unless that majority or minority secure a majority of the Americans in each of three fourths of the states to support the unjust oppression of individual welfare.

And thus, in those conventions, we realize, perhaps for the first time, that the important statements of the Seventh and the Fifth Articles are, in substance, identical statements by the supreme will of the American people. They are respectively the two statements or commands of the citizens of America, the new nation, as to WHEN the grants of power in the First Article shall be the grant of the American citizens and as to WHEN the grants of any similar power, in the generations to come, shall be the grants of the American citizens. In their language, in their purpose and in their plain command, both statements are exactly alike in substance. The statement or command of the American people, in the Seventh Article, is that the constitution of the government of interference with individual freedom, the First Article, shall be the Constitution of the American people when nine of the “conventions” (named in the Seventh and Fifth Articles) shall have said “Yes” to that constitution, to the enumerated grants of national power in the First Article. The statement or command of the American people, in the Fifth Article, is that any new proposed constitution of government of interference with individual freedom of the American citizen (the supposed Eighteenth Amendment being the first new constitution of that kind) shall be the Constitution of the American people when three fourths of the “conventions” (named in the Seventh and the Fifth Articles) shall have said “Yes” to that new proposed constitution.

At this point, we average Americans, sitting with those amazing Americans in their “conventions,” fix firmly in our minds, with intent never to forget, the fact that the “conventions” of the Seventh Article command are indisputably the American people themselves; that the “conventions” of the Fifth Article command are identical (except as to the time in which the American people assemble) with the “conventions” of the Seventh Article command; and that, therefore, the “conventions” of the Fifth Article command are also the people of America themselves. But the whole people of America are the “We, the people” of the Preamble. They are the only reservee of the Ninth Amendment, “the people” therein. They are the “most important factor” and reservee of the Tenth Amendment, “the people” therein. Wherefore, we grasp clearly why they are mentioned in the Fifth Article, because they have no government attorney in fact—as they could not have if we are “citizens of America”—to surrender what they reserved to themselves in the Ninth and Tenth Amendments.

Sitting in those conventions, we recall the limited ability of state legislatures, each speaking for its own state, to make federal Articles, Articles that neither interfere nor give power to interfere with individual liberty, the ability that made all the federal Articles of 1781. And we recall that the Constitution does not take that ability from the “states respectively” and their governments but reserves it to the “states respectively” and their governments, as the Tenth Amendment expressly declares. And so we understand the mention of that limited ability in the Fifth Article in the words “ratified by the legislatures of three fourths of the several states.” And, educated by the experience of the amazing Americans with whom we sit, we realize the meaning of this particular statement or command of the supreme will, the people of America. That supreme will is creating a new nation out of its human possessors. It is destroying forever the complete independence of the respective states, but leaving each of the states a political entity with citizens and much independence. It is incorporating the system of a federal union of states into the new national system of a union of all individual Americans, and it is subordinating the members of the federal union and also the federation itself to the union of human beings, to the supreme will in America, the will of the citizens of that nation. Therefore, as each state is no longer completely independent, it is no longer necessary that every member of the federal union shall utter its “Yes” to the making of any new Article of the federal or declaratory kind, the only kind which governments ever can make. And so we clearly understand, as the early Americans in their conventions understood at once, that the words “ratified by the legislatures of three fourths of the several states” was to be the command of the American people, sitting in those conventions, that a “Yes” from three fourths of the state governments would, thereafter, be necessary and sufficient for the making of a new proposed federal or declaratory Article. And we do not understand, as the Americans in those conventions never understood, that those words implied any “grant” of ability to the state governments to make any Articles in our Constitution, much less Articles by which governments interfere or give power to interfere with the individual freedom of the American citizen outside the matters enumerated in our First Article.

On the contrary, it becomes amazingly clear to us that the “conventions” of the American citizens are mentioned in the Fifth Article because the American citizens are the important reservee of the Ninth and Tenth Amendments. And it becomes equally clear that the “legislatures of the several states” are mentioned in the Fifth Article because the “states respectively” are the lesser reservees named in the Tenth Amendment.

The Tenth Amendment tells us that no power of any kind is given, by the new Constitution, to any grantee except to the new nation and its government, the American government. It tells us that some powers, which each state had hitherto possessed, are taken from it; that the exercise of other powers, which each state had hitherto possessed, are now prohibited to it; and that only the other powers (which each state had hitherto possessed) are left with that state by the command of the supreme will in America, ourselves, the citizens of America. It tells us emphatically that no new powers of any kind are given to any state or to any collection of states or to their governments. It tells us that the American people, in making their Constitution, left each state and each state government powerless, as they had been, alone or in combination with other governments, to interfere with the individual rights of any human being outside that particular state. And finally it tells us, what the Supreme Court has expressly declared to be the most important declaration in that Tenth Amendment, that we ourselves, the individual citizens of America, the “people” of the Preamble and of that Tenth Amendment, retain (secure from any valid exercise by any government or governments in the world and only capable of exercise by ourselves in our “conventions”) every power to interfere with the individual freedom of the American citizen except in the matters enumerated in the First Article.

And so, in those “conventions,” we need no constitutional thinker to tell us the simple fact that only those who have can give. If the state legislatures have not, as indisputably they have not, any ability to exercise or to grant power of general interference with individual rights throughout America, and if, as the Tenth Amendment expressly declares, the entire Constitution adds naught to their existing ability to make Articles of another kind, the Fifth Article merely prescribes the constitutional mode of procedure, in which, by command of the American people, that existing and limited ability shall thereafter be exercised.

And likewise, if the American people themselves, the Seventh Article “conventions” in which we are sitting, have exclusive ability to exercise or to give power of general interference with their own individual rights, and if, as the Ninth and Tenth Amendments together expressly state, those “conventions” retain that exclusive ability, clearly the Fifth Article reference to the same “conventions” of the American citizens is but prescribing the constitutional mode of procedure in which, by command of the American people, that exclusive ability of their own shall thereafter be exercised. When the “apt, precise and classic English” of the Fifth Article permits no other meaning, we cannot imply that the Article intends to grant what one supposed grantee (who is the supposed grantor) already has and what the other cannot ever have. Nor can we imply that the Article intends to provide a constitutional mode of procedure in which those, who have not, may give. Moreover, as this absurd implication would make the individual American people “subjects,” as soon as they adopted that Article, we now know, with absolute certainty, that the Americans, in the “conventions” in which we are sitting, adopted it as their fundamental law of procedure with the only meaning which its own “apt, precise and classic English” permits.

We have now read, in those conventions of old and with the Americans therein who made it, all of the Madison Fifth Article save the two exceptions at the end thereof, beginning “provided that no amendment, etc.” In those conventions, the meaning of those two exceptions needs but a moment’s thought. One exception is that no change may be constitutionally made, prior to 1808, in relation to the existing evil of human slavery. The other exception is that no change may be constitutionally made which shall give any state greater representation in the Senate than each other state. These are not exceptions to any power “granted” in the Article. No power of any kind, as we already know, is “granted” anywhere in the Article, but the Article does mention two existing abilities, one limited and the other unlimited, and prescribes the constitutional mode of procedure in which each of the respective existing abilities may be exercised. The exceptions simply mean that the Article provides no constitutional mode of procedure in which may be exercised existing ability to change the Constitution in the matters mentioned in the two exceptions.

We average Americans have now examined carefully the record of the wording of all our Constitution at Philadelphia and particularly the record of the wording of the three Articles, the First and the Seventh and the Fifth, which either purport to give or mention future giving (by the “people,” who alone can give) power to interfere with the individual freedom of the American citizen. Furthermore, we have sat in the “conventions” of the American people, in which all those worded Articles were made, and have read, with the Americans in those “conventions,” the apt, precise and classic English of the Fifth Article, which told them, as it tells us, that the Article merely prescribes the constitutional mode of procedure, in which thereafter can be exercised either the existing limited ability of the state governments or the existing unlimited ability of the American citizens themselves, the “conventions” of the Seventh and the Fifth Articles. We are certain, therefore, that nowhere in the Constitution, made in those early “conventions,” can the most ingenious mind discover what would have been the greatest blunder in the history of mankind, anything which changed the actual and legal relation of the individual American to government and made him the “subject” of any government or collection of governments in America. It would be unwise, however, for us to leave those conventions without listening to some few of the great Americans, who sat therein, telling us how the new Constitution does secure the status of the free individual American and protect his individual freedom from all usurpation by any government or governments in America.