“When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states.... Since states as well as citizens are represented in the Constitution before us, and form the objects on which that Constitution is purported to operate, it was necessary to notice and define federal as well as civil liberty.... Under these impressions, and with these views, was the late convention appointed; and under these impressions, and with these views, the late convention met. We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal and national Constitution ... a constitution that would insure peace, freedom, and happiness to the states and people of America.” (2 Ell. Deb. 429, et seq.)

So spoke the great Wilson, beginning his explanation of the proposed Constitution to the first Americans assembled in the “conventions” named in the Seventh and Fifth Articles, the Americans in Pennsylvania. As we listen to him, we remark the insistence upon the fact that the Constitution to be considered is both a “federal and national Constitution.” And, in strict conformity to this fact, Wilson is heard explaining the difference between the federal liberty of a state, controlled by the federal Articles of a constitution, and the natural liberty of a man, controlled by the national Articles of a constitution. We listen to him with great interest when he tells us that this federal and national Constitution has been framed to insure “peace, freedom and happiness to the states and the people of America.” In his words we hear the echo of the fact so clearly declared in the Tenth Amendment, that the federal powers, not delegated in this Constitution to the new government, are reserved “to the states respectively,” and the national powers, not therein delegated, are reserved “to the people” themselves of America.

And, remembering that the two distinct reservees of the Tenth Amendment are respectively named in the Fifth Article, we keep in mind that the new Constitution is both “a federal and a national Constitution.” From which we know, as Wilson knew, that these reservees are named in the Fifth Article, the “state legislatures” because of their limited ability to make federal or declaratory Articles, and the “conventions” because of their ability to make Articles of every kind, the “conventions” of the Fifth and Seventh Articles being the people themselves. As we are actually sitting with Wilson in one of the “conventions” of the Seventh Article, there is no possibility of our forgetting, as none of the people in any of those conventions ever forgot, that the “conventions” of the Seventh Article are exactly the same as the “conventions” of the Fifth Article and that both are the people of America, assembled in their “conventions.”

None of the Americans in those conventions could be guilty of the ridiculous modern blunder about the Fifth Article. None could possibly read that Article to mean that the American citizens, “assembled in conventions,” were granting to the American citizens, “assembled in conventions,” any ability whatever to make Articles. The modern blunder becomes clear to us. Although the Seventh and Fifth Articles have only been proposed and have not yet been made, we sit in one of those “conventions” about to exercise ability to say “Yes” to any Article, whether federal or national. So, with amazement at the blunder of 1917 and 1920 about the Fifth Article, we listen intently to the Wilson statement which brings home the absurdity of the idea that the Article is a grant of ability to make Articles.

As in all those conventions, he is meeting the usual charge that the new Constitution endangers individual liberty because it lacks a bill of rights. As in all the conventions, he is pointing out that no bill of rights is needed in a Constitution which gives to government no power to interfere with individual freedom, except the specific and enumerated powers of the First Article. He is repudiating the thought that anywhere in the Constitution, in its Fifth Article or elsewhere, outside of the First Article, is there any grant to any government of power to interfere with individual liberty. And this is what he has to say about the Philadelphia Convention, which ended in the preceding September, and about the constitutional Articles that Convention proposed, including the Fifth Article. “A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned, in that House, with the greatest indignation.” (2 Ell. Deb. 436.)

We Americans, who will listen later herein to some extraordinary ideas about the Fifth Article from our modern “constitutional” thinkers, wonder just exactly with how much indignation the Fifth Article would have been spurned in all the conventions of that earlier day, if Patrick Henry or any other great opponent of the proposed Constitution had only been able to point out that the Fifth Article was a “grant” to a general government (the legislative governments of some of the states) not only of every power “expressly reserved by the people” but also of every power given to Congress by the First Article. We also wonder whether the indignation would have been increased or entirely dissipated if Henry or some other opponent had informed those conventions, the assembled people of America, a people so jealous of all government interference, that the omnipotence was granted so that the state legislatures, never elected by the American citizens at all, might, without the slightest restraint or any constitutional restriction, interfere with every individual right of the American citizen.

While many apparently sane and reasonable modern inhabitants of America have listened to such ideas in the last five years as if those who advanced the ideas were talking or thinking intelligently, we rather believe that the Americans in those early conventions, even from Henry, would not have received such ideas complacently. However, as we have found in those early Americans much of the natural humor which is the characteristic of a human being who thinks for himself, we are inclined to believe that the modern ideas in relation to the Fifth Article, about which ideas we have just been talking, would not have been received in any of those conventions with indignation but would have been greeted with prolonged laughter.

But the Henry of those days had not the intellectual calibre of our “constitutional” thinkers. Therefore, in those conventions, not even from one of the many bitter opponents of the proposed Constitution, do we hear any suggestion that there lurks somewhere in the Fifth Article, between its lines, because not hinted at in its apt, precise and classic English, the extraordinary grant of omnipotence to the legislative governments of some of the states. On the contrary, in every convention, we find the new Constitution bitterly assailed because its provisions reduce the state governments to that pitiable condition where Henry calls them the weakened, enervated and defenseless state governments. Indeed, we are inclined to mirth when we contrast these modern ideas of the Fifth Article (that it grants omnipotence over individual rights to some state governments) with many of Henry’s word pictures of the effect of the proposed Constitution on those state governments.

This is one of those pictures which he exhibits to the Americans in Virginia, assembled in their conventions: “What shall the states have to do? Take care of the poor, repair and make highways, erect bridges, and so on, and so on? Abolish the state legislatures at once. What purposes should they be continued for? Our legislature will be indeed a ludicrous spectacle—one hundred and eighty men marching in solemn, farcical procession, exhibiting a mournful proof of the lost liberty of their country, without the power of restoring it. But, sir, we have the consolation that it is a mixed government; that is, it may work sorely on your neck, but you have some comfort by saying, that it was a federal government in its origin.” (3 Ell. Deb. 171.)

Clearly, neither Henry nor the other opponents of the new Constitution had the modern ability to discern that it only appeared to deprive the state governments of much of their former powers. They could not see, they did not know, that its Fifth Article granted those state governments the omnipotence over individual liberty which the Statute of ’76 had denied to the British Parliament. And because Henry and his colleagues had not the discernment of our leaders, we hear Wilson and the supporters of the Constitution defending it against the plain fact that it did rob the state governments of much of their former power. For example, we hear Wilson saying: “The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power.... I know very well, sir, that the people have hitherto been shut out of the federal government; but it is not meant that they should any longer be dispossessed of their rights. In order to recognize this leading principle, the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone.... When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?... I have no idea that a safe system of power in the government, sufficient to manage the general interest of the United States, could be drawn from any other source, or vested in any other authority, than that of the people at large; and I consider this authority as the rock on which this structure will stand. If this principle is unfounded, the system must fall.... With how much contempt have we seen the authority of the people treated by the legislature of this state!” (2 Ell. Deb. 443, et seq.)

But we cannot stay much longer in the Pennsylvania Convention. It would be unwise, however, for us to depart therefrom without hearing the accurate confirmation of our own reading and understanding of the Fifth Article from its own “apt, precise and classic English.” Wilson was explaining his opposition to the doctrine that a constitution is a compact between a master government and servant people. In other words, he was explaining the American Statute of ’76, stating the legal principle that Americans are not “subjects.” “The citizens of united America, I presume, do not wish to stand on that footing with those to whom, from convenience, they please to delegate the exercise of the general powers necessary for sustaining and preserving the Union. They wish a principle established, by the operation of which the legislatures may feel the direct authority of the people. The people, possessing that authority, will continue to exercise it by amending and improving their own work.” (2 Ell. Deb. 498.)

To us average Americans this seems like sound American law and in strict keeping with our reading of the plain language of the Fifth Article, as we read it with the Americans in those old conventions. Wilson and his associates seem to know with certainty that the Fifth Article is not to change all the free individual Americans into “subjects” of the legislative governments of which he speaks. Indeed, he calls all those free Americans, to some of whom he was speaking, “the citizens of America,” although the nation of America would not exist and they would not be its citizens until they and the Americans, in eight other conventions, had said “Yes” to the Constitution they were discussing. Therefore, when he speaks of that Constitution as establishing a principle “by the operation of which the legislatures may feel the direct authority of the people” or “citizens of America,” and immediately adds that those citizens, possessing the exclusive authority to exercise and vest ability to interfere with individual freedom, “will continue to exercise it by amending and improving their own work,” the enumerated grants of such authority in the First Article, we realize with certainty that he and his associates know that the Fifth Article in that Constitution does not mean that the legislatures (who are to feel the direct authority of the people) can thereafter exercise the authority of the citizens of America by altering, subtracting from or adding to the First Article quantum of delegated power to interfere with the individual freedom of the American people.

In this convention, where the Americans in Pennsylvania are assembled, we have heard the consistent emphasis laid upon the fact that the Constitution is both a federal and a national Constitution, the distinction from all other constitutions so clearly recognized by the Fifth Article mention of the two makers of Articles. Later herein we will learn how this distinctive quality of our Constitution, this distinction recognized in its Fifth Article as well as in its Tenth Amendment, has neither been felt or acknowledged but has been wholly ignored by our modern “constitutional” thinkers for five years last past. At this point, therefore, it is well that we sit for a moment in the Virginia convention and listen to Henry, the greatest and most determined opponent of the Constitution before it was adopted. With our minds fixed upon the language of the Fifth Article and its clear mention of the exclusive existing ability of “conventions” to make national Articles, a mention emphasized by the equally clear recognition of the limited ability of the legislative state governments to make Articles which are not national, it is interesting to hear Henry refer to the difference between federal and national Articles; and it is more than interesting, it is amazingly important to hear him proving, by the fact that the Americans in Virginia are assembled in one of the “conventions,” that the Articles which have been just proposed from Philadelphia, are national and, therefore, of the kind that legislative governments can never make.

It is Thursday, June 5, 1788, the day on which began the immortal Virginia debate. For a year, since the proposal from Philadelphia, the new Articles have been the subject of the severest scrutiny on the part of those determined to secure the rejection of those Articles by the American people in Virginia. Throughout all America, these Articles have been examined and assailed and condemned in public writing and speech by those equally determined to secure their rejection by the Americans assembled in the other “conventions.” On the other hand, the same Articles have been explained and their necessity, if American individual liberty is to be secure, has been demonstrated in the famous essays which we now know as The Federalist, nearly all of which essays were the work of Madison and Hamilton, who are responsible for the wording and the meaning of the Fifth Article. Like the other “conventions,” assembling when all minds sought the best protection for individual liberty against oppressive governments, the members of the Virginia convention have been carefully chosen to speak the will of the Americans in Virginia by a simple “Yes” or “No” to these seven Articles, the first of which constitutes government ability to interfere with individual liberty.

Could anything be more vitally important to individual liberty than that just such “conventions,” so chosen, not the state legislatures, each elected by the citizens of its own state for an entirely different purpose, should continue to have their exclusive ability to determine how much power to interfere with individual freedom shall be surrendered by the American people, and how the quantum (which is surrendered) shall be apportioned for exercise between the one American government and the respective states and their respective legislative governments? Later herein we shall learn how clearly Madison and Hamilton, responsible for the wording and meaning of the Fifth Article, knew and appreciated the practical and amazing importance as security to individual liberty, in this distinction between the two makers (“conventions” of the American people themselves and state “legislatures”) named in their Fifth Article and in the distinction between their respective and existing abilities to make Articles in a Constitution which is both a federal and national Constitution. And, as we know, as the Supreme Court has declared in the voice of the Marshall who sits with us in that Virginia convention, the knowledge and appreciation was not peculiar to Madison and Hamilton. It was the common knowledge and appreciation of all the Americans who made the Fifth Article in those conventions. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent”; but when a grant of enumerated power to interfere with individual freedom was asked, “the legal necessity of referring it to the people and of deriving its powers directly from them was felt and acknowledged by all.” When such a grant is asked, whether it be asked in the shape of the First Article or of the Eighteenth Amendment, it is not referred to the people at all, unless it is sent to them to be considered and discussed before they choose, from among themselves, those of themselves who will assemble in the “conventions” for the one and sole purpose of uttering the carefully weighed “Yes” or “No” of the Americans in the state where the particular convention assembles. As all in those early conventions knew, as Marshall declared from the Supreme Court, that assembling in those “conventions” is the only way in which the American people can act “safely, effectively and wisely” when asked for a grant of power to interfere with individual freedom, and, as the Statute of ’76 and good sense and practical experience alike teach all free men, that is the only way in which any just power of government can be derived “directly” from the citizens upon whom it is to be exercised.

We commend a careful thought of this distinction, vital and important to individual human liberty, to the constitutional thinkers of 1917 and 1920. Whenever they read a Fifth Article which included the words “or in conventions in three fourths thereof,” they have assumed that two makers of Articles were named in the amending procedure of the Constitution (which is both federal and national) in order that Congress, when it wanted new power to interfere with individual freedom, might weigh the chance of getting it from each maker and then ask it either from those who reserved it exclusively to themselves, the “people” of the Tenth Amendment, or from those who never had it or the ability to grant it, the other reservee of the Tenth Amendment, “the states respectively” and their governments. Or perhaps it was the concept of these modern constitutional thinkers that the Fifth Article mentions two makers of Articles merely that Congress may choose either, according to its whim, as a fortunate golfer chooses between his two golf suits. That is their idea of the security to human individual liberty against government usurpation which Madison and Hamilton and the American people established about eleven years after they declared that no just power to interfere with human freedom could ever be obtained, except from the citizens with whose individual liberty the exercise of the power was to interfere!

As Henry and his fellow Americans in the Virginia convention had no such absurd concept, we return to hear him charge that the Philadelphia Convention had exceeded its authority in proposing the Constitution of national government and to prove that the proposed Constitution was national by the fact that the Americans in Virginia are assembled in “convention” to say “Yes” or “No” to that Constitution, whereas, if it had consisted only of federal Articles, it would have been sent to the legislatures.

“The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates, who were sent to Philadelphia, a power to propose a consolidated government instead of a confederacy? Were they not deputed by states, and not by the people? The assent of the people, in their collective capacity, is not necessary to the formation of a federal government.... They are not the proper agents for this purpose. States and foreign powers are the only proper agents for this kind of government. Show me an instance where the people have exercised this business. Has it not always gone through the legislatures?... Are the people, therefore, in their aggregate capacity, the proper persons to form a confederacy? This, therefore, ought to depend on the consent of the legislatures, the people having never sent delegates to make any proposition for changing the government.” (3 Ell. Deb. 52.)

In these words, as always in the convention where we sit and listen to him, Henry attests the universal knowledge, common to advocate and opponent of the proposed Constitution, that the Constitution has not been referred to the state governments because of their absolute inability to constitute government of individuals, to give to government any power to interfere with individual liberty. In this, he and the others but echo the knowledge of the Americans at Concord, on that October day, eleven years earlier, where they returned a proposed Constitution with Articles of that kind to the legislature which had proposed it. We recall their own statements that even a supreme legislative government “either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution.” We recall their statements of the important knowledge that “a Constitution, alterable” even “by the supreme legislative, is no security at all against the encroachment of the governing part on any or on all their rights and privileges.” But we also hear, in these words of Henry, his knowledge—the knowledge of all Americans at that time—of something else interesting and important to us. We hear him twice identify the assembling of the American people, in the “conventions” named in the Seventh and the Fifth Articles, as the people “in their collective capacity” and the people “in their aggregate capacity.” As we hear him, and as we hear Wilson in the Pennsylvania convention stating that “in this Constitution the citizens of America appear dispensing a portion of their power,” as we hear similar statements in all those “conventions,” we sense the universal knowledge of all those conventions that they are the American people, the citizens of the new republic. And later herein, with our education of 1790 completed by sitting in these very conventions, we intend to listen (with amazement and without the slightest belief) to the remarkable statements of 1917 and 1920, that the states, political entities, made our Constitution or that the citizens of the different states, in their capacity as such citizens, gave to the American government the enumerated First Article powers to interfere with the individual liberty of the citizens of that entirely different and greater nation, America. Impressed by Henry’s knowledge that the conventions which made the Constitution were the people of America, “in their collective capacity,” “in their aggregate capacity,” and impressed with Wilson’s knowledge that “the citizens of America”—not the states or the citizens of the states—“are seen dispensing a portion of their power,” we are going to laugh at the concepts of 1917 and 1920 and know that Marshall was right when he said, speaking of the American people and their assembling in those “conventions”: “It is true, they assembled in their several states, and where else could they have assembled?... When they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves or become the measures of the state governments.”

Yet, when we later come to the modern days of 1917 and 1920, we shall see all our leaders, whether for or against the Eighteenth Amendment, blandly assume a most extraordinary meaning from the Fifth Article mention of the state legislatures. Not a single member of any state legislature is elected by the citizens of America. Moreover, the Tenth Amendment expressly declares that the Constitution—that great power of attorney from American citizens to their only American government—gives no power whatever to the states or their governments. Nevertheless, with amusement and absolute incredulity, we shall hear every statesman of 1917 and every lawyer of 1920 assume and act and argue upon the extraordinary concept that the Fifth Article of that Constitution is a great power of attorney to the state legislatures as attorneys in fact for the American citizens.

“We all know the severe scrutiny to which the Constitution was exposed—some from their own knowledge, others from different sources. We know with what jealousy, with what watchfulness, with what scrupulous care its minutest provisions were examined, discussed, resisted, and supported by those who opposed and those who advocated its ratification.” (4 Ell. Deb. 486.) So spoke Martin Van Buren in the Senate on April 7, 1826. We sit in the conventions which made the Constitution of which he spoke. We listen to every word that is said therein. We hear the Fifth Article explained by its worder, Madison, as nothing but a mode of procedure. From not one of the opponents of the Constitution, not even from Henry, do we hear a single word of attack upon the Fifth Article except as to the weakness of the mode of procedure which it provides for evoking the power of the “people” themselves, assembled in “conventions” of the very same kind, to withdraw from the one American legislature, the Congress, some enumerated power of the First Article which is found oppressive to individual liberty. On the contrary, we not only hear no single word of complaint that the Fifth Article or any Article gives one iota of power to the state legislatures, but the whole complaint of all the opponents of the Constitution which we do hear is that it practically destroys all existing ability and power of those state governments. Only a moment ago we have heard Henry ask: “If you adopt this Constitution, why continue the state legislatures at all?”

Anticipating the extraordinary concept which we are later to hear in 1917 and 1920, that the citizens of America by the Fifth Article made a collection of the state legislatures an omnipotent government over everything in America, including every individual right, we wonder if the constitutional thinkers of 1917 and 1920 remember that we are sitting with a people who, just five years before the conventions in which they and we sit, ended an eight-year war to make certain that there never again should be a government of that kind in America, to make certain that they themselves should never be the “subjects” of any government or the citizens of any nation whose government should have even one power to interfere with individual liberty, except power of that kind granted directly by its citizens themselves.

It was Maclaine in the North Carolina convention who first used the exact expression that the Americans, who sit in the conventions where we are, were a people “better acquainted with the science of government than any other people in the world.” In the same convention, on July 29, 1788, this is what he had to say about the consistent attack upon the Constitution, because it robbed the state legislative governments of so much of their previous power. “Mr. Chairman, that it will destroy the state sovereignty is a very popular argument.... Government is formed for the happiness and prosperity of the people at large. The powers given it are for their own good.... The powers to be given the general government are proposed to be withdrawn from the authority of the state governments, in order to protect and secure the union at large. This proposal is made to the people. No man will deny their authority to delegate powers and recall them, in all free countries.... It may be justly said that it [the Constitution which contains the Fifth Article] diminishes the power of the state legislatures, and the diminution is necessary to the safety and prosperity of the people.” (4 Ell. Deb. 180.) It certainly would have surprised Maclaine, as well as all the Americans in those conventions, to have heard any one of themselves stating that the same Constitution vested the state governments with an omnipotence they had never possessed, the very omnipotence denied to the British Parliament eleven years earlier.

In the Virginia convention we hear Madison, who drafted and suggested the Fifth Article at Philadelphia, speak of the important distinction between the makers of the federal Articles of 1781, only seven years made, when we sit in that Virginia convention, and the “convention” makers of the proposed Articles of the new national Constitution. If these “conventions” make it, he says, it will be a government established, not through the intervention of the legislatures but by the people at large. Fie goes on to say “In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made,” now referring directly to the Fifth Article, “the same idea is, in some degree, attended to.” (3 Ell. Deb. 94.)

We feel that it will be quite difficult, when we come later to the constitutional thinkers of 1917 and 1920, for them to convince us that Madison meant his Fifth Article to alter “the dependent derivative authority of the legislatures of the state” and, whenever another government makes the suggestion, put that dependent authority above what he calls “the superior power of the people.”

And we feel that these “constitutional thinkers” will find it impossible to convince us when we recall Madison’s other words, directly referring to his Fifth Article and the existing power of the people, mentioned therein by the word “conventions.” These are the words to which we allude: “Were it [his Fifth Article] wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union, and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.” It is Madison himself who puts the one word “majority” in italics. He does so to call attention to the fact that his Article leaves “the supreme and ultimate authority” in the people (named as “conventions” in his Article) but not necessarily capable of exercise by the majority in any constitutional manner. He goes on to explain this very fact by saying that when the mode of procedure prescribed in his Article is read, it is found that “in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character.” (Fed. No. 39.)

In New York we find Hamilton, who seconded the suggestion of Madison’s Fifth Article at Philadelphia, almost immediately after he had stated that there would be no danger in permitting Congress to propose amendments since “the final decision in the case will rest with the people.” As we recall, Hamilton said this when the tentative Fifth Article mentioned no one but the people, “conventions,” as the maker of future Articles, because he and Madison and their associates at Philadelphia, whose minds had so far been concentrated upon the national First Article, had not yet grasped the fact, later stated by Hamilton to be his conviction, that all future changes would probably relate “to the organization of government and not to the mass of its powers.” We are, therefore, interested to find Hamilton, in New York, on Friday, December 14, 1787, pointing out that “It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers.... The possibility of a question of this nature proves the necessity of laying the foundations of our national government [the First Article grant of national powers] deeper than in the mere sanction of delegated authority [referring directly to the state legislatures which are mentioned in the Fifth Article]. The fabric of American empire ought to rest on the solid basis OF THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (Fed. No. 22.) The capitals are those of Hamilton himself. We rather feel that his stress upon the “PEOPLE” sharply contrasted with the state “legislatures,” as the only legitimate direct source of national power, such as is granted in the First Article and the Eighteenth Amendment, will be somewhat of a shock to the “constitutional thinkers” of 1917 and 1920. Sitting in the conventions of old, we rather recognize the capitalized words, where Hamilton says that national power in America “ought to rest on the solid basis of the CONSENT OF THE PEOPLE,” as a direct echo from the Statute of ’76, enacted only eleven years before those conventions. That Statute says that every just power of government must be derived directly from the governed.

And we become rather convinced that Hamilton and Madison, when submitting the Fifth Article at Philadelphia, never worded it so that national power in America could be granted through the illegitimate authority of the state legislatures, when we read what either one or both of them have to say on Tuesday, February 5, 1788, in The Federalist, No. 49. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority”—a direct reference to the “conventions” of the Seventh and the Fifth Articles—“whenever it may be necessary to enlarge, diminish, or new-model the powers of government.”

If we ever had any doubt as to what Hamilton meant the Fifth Article to provide, our doubt is ended forever when we hear Hamilton, in the New York Convention, speak of the state legislatures, which the “constitutional thinkers” of 1917 and 1920 assume to have been made attorney in fact for the American people for every purpose by that Fifth Article. “Look through their history,” he says, speaking of those state legislative governments. “What factions have arisen from the most trifling causes! What intrigues have been practiced for the most illiberal purposes! Is not the State of Rhode Island, at this moment, struggling under difficulties and distresses, for having been led blindly by the spirit of the multitude? What is her legislature but the picture of a mob?” Most of the states “are either governed by a single democratic assembly, or have a senate constituted entirely upon democratic principles. These have been more or less embroiled in factions, and have generally been the image and echo of the multitude.... Let us beware that we do not make the state legislatures a vehicle in which the evil humors may be conveyed into the national system.” (2 Ell. Deb. 317.) When Hamilton knew that these state legislatures were not the legitimate source of national powers in a republic and when he had this view of their general character, will any sane man believe that he advocated that the citizens of America should make these legislatures (although the citizens of America elect not a single member in them) absolute attorney in fact for the citizens of America for all purposes? Will any sane man believe that he proposed to substitute them, as grantors of national power, for the “conventions” of the Fifth Article, which “conventions” already excited the admiration of the entire world, according to the author of the Fifth Article, as the only safe or effective mode in which the free citizens of a nation could vest its government with any power to interfere with their own individual liberty.

“The authority of Constitutions over governments, and the sovereignty of the people over Constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.” This impressive statement of the truth that the “governments,” state “legislatures,” never were placed by the Fifth Article above the Constitution in which it is, and above the sovereignty of the people, mentioned therein as “conventions,” and cannot be placed there by another government, the Congress, is not a statement made in the heat of the controversy about the Eighteenth Amendment. It is the statement of James Madison, author of the Fifth Article, made in the Virginia House of Delegates in 1799;

It is becoming almost impossible for us, as we sit in these conventions and hear every word that is said, to understand the source of the modern thought, if we can dignify it by calling it “thought,” that the Fifth Article is a power of attorney from the citizens of America to the state governments, every member of which is elected by the citizens of the respective states and not by the citizens of America. It is beginning to grow upon us that any such “thought” is based on sheer assumption and that the entire record of the “conventions” is a closed book to those who hold the assumption. We know that they have the explicit statement of the Tenth Amendment, that the Constitution gives no power of any kind to any donee except the one new American government, the government with the enumerated powers of the First Article. As no power of attorney was ever written or can be conceived except one which grants the attorney in fact some power, the Tenth Amendment makes absolutely certain that neither the Fifth Article nor the entire Constitution gives to the state legislatures any power as attorneys in fact for the citizens of America.

Moreover, breathing the atmosphere of those first “conventions” of the kind named in the Seventh and the Fifth Articles, the “conventions” where individual liberty of the American is the only object of advocate and opponent of the Articles under consideration, we begin to sense that the holders of the impossible assumption have never fully grasped the amazing and vital distinction between “state legislatures” and “conventions” of the kind named in the Seventh and the Fifth Articles. When we shall hear the “constitutional thinkers” of 1917 and 1920 speak of the “legislatures” and the “conventions” as two different agents given omnipotent attorneyship in fact over all the individual rights of the citizens of America, we shall wonder if these thinkers appreciate that the “state legislatures” are permanent bodies, always existing, and that the “conventions” of the Fifth Article are, to the “conventions” in which we sit, bodies that never would have an existence until some future moment, when the American citizens themselves would again be called to assemble in and thus make those “conventions.” Nothing could show more clearly that the “conventions” of the Seventh Article looked upon the “conventions” of the Fifth Article, not as the donee of any power of attorney, but as themselves or their posterity, the citizens of America, assembling again to determine whether there shall be any change in the distribution of power to interfere with their individual liberty. And our thought, re-echoed again and again by Marshall and others from the Bench of the Supreme Court in the century that follows the first assembling of these “conventions,” seems but the repetition of what we hear said in the Massachusetts Convention as the tribute of its Americans to the Fifth Article.

On January 23, 1788, the Americans, assembled in Massachusetts, took up the consideration of that Article. As in every convention, there had been great opposition to the earlier Articles; as in every convention, nearly all of it had been to the great national powers of the First Article granted to the new government and taken from the state governments; and, as in every convention, almost all of this opposition had been the continued complaint that the state governments were being destroyed.

It was not that the Americans loved the state governments. The truth is that, like every natural human being, they objected to all governments. Their sole thought was fear of oppressive government infringement upon their individual liberty. In this respect, the Americans in each convention feared their own legislative government less than the new proposed Congress, because they would elect all the members of the former and only a few members of the latter. If it had been suggested, by any of the many opponents of the new Constitution, that any possible twisting of the words of the Fifth Article meant that governments outside their state, not one of whose members they themselves would elect, could infringe upon their every individual right, without any constitutional restraint, the record of every convention would have been one unanimous “NO,” against the new Constitution. But, as no “constitutional thinker” of 1917 or 1920 sat in any of those conventions, no such suggestion was ever made therein.

And so, on that January 23, we hear the Fifth Article read in that Massachusetts convention, and we see Rufus King rising and we hear him state that “He believed gentlemen had not, in their objections to the Constitution, recollected that this Article was a part of it; for many of the arguments of gentlemen were founded on the idea of future amendments being impracticable.” He dwelt “on the superior excellence of the proposed Constitution in this particular, and called upon gentlemen to produce an instance, in any other national constitution, where the people had so fair an opportunity to correct any abuse which might take place in the future administration of the government under it.”

And then we hear Dr. Jarvis: “Mr. President, I cannot suffer the present Article to be passed, without rising to express my entire and perfect approbation of it. Whatever may have been my private opinion of any other part, or whatever faults or imperfections I have remarked, or fancied I have seen, in any other instance, here, sir, I have found complete satisfaction: this has been a resting place, on which I have reposed myself in the fullest security, whenever a doubt has occurred, in considering any other passage in the proposed Constitution. The honorable gentleman last speaking has called upon those persons who are opposed to our receiving the present system, to show another government, in which such a wise precaution has been taken to secure to the people the right of making such alterations and amendments, in a peaceable way, as experience shall have proved to be necessary. Allow me to say, sir, as far as the narrow limits of my own information extend, I know of no such example. In other countries, sir,—unhappily for mankind,—the history of their respective revolutions has been written in blood; and it is in this only that any great or important change in our political situation has been effected, without public commotions. When we shall have adopted the Constitution before us, we shall have in this Article an adequate provision for all the purposes of political reformation. If, in the course of its operation, this government shall appear to be too severe, here are the means by which this severity may be assuaged and corrected.... We have united against the British; we have united in calling the late federal convention; and we may certainly unite again in such alterations as in reason shall appear to be important for the peace and happiness of America.” (2 Ell. Deb. 116.)

No man ever voiced such sentiments, no conventions of Americans ever listened to them, with any knowledge or thought that the Fifth Article, “the wise precaution” to secure the liberty of the individual if the government with the national powers of the First Article oppressed that liberty, was itself a grant to another government, ten legislatures outside of the Massachusetts in which that convention was held, to infringe upon the individual liberty of every American in Massachusetts on every subject without any constitutional restraint.

And so, we average Americans end our education in the only “conventions,” named in the Seventh or the Fifth Articles, which yet have assembled. And we end that education knowing that there is nothing anywhere in the Constitution those conventions adopted, and especially nothing in the Fifth Article, which changed the free American into a subject of any government or governments in America. Everything we have heard—and what we have repeated is but little of what we have heard—serves but to emphasize the only meaning of its “apt, precise and classic English,” the plain meaning which we got from its language when we read it at the beginning of these conventions with the Americans who made it.

It is, as its author explained it, naught but a constitutional mode of procedure in which may be thereafter exercised, in a constitutional manner, either the limited ability of state governments to make Articles which do not concern themselves with the infringement of individual liberty or the unlimited ability of the people themselves, the “conventions” of the kind in which we have sat, to make any Articles. The procedure prescribed for such constitutional exercise is simplicity itself to those who sit in those conventions. It is exactly the procedure just followed (up to the point where the work of any proposer of a new Article and its mode of ratification must end) by the Philadelphia Convention which drafted it and the other six Articles. The Philadelphia Convention found itself without any CONSTITUTIONAL mode of procedure in which could be evoked to exercise the existing and exclusive power of the people of America to grant any government power to infringe upon the individual liberty of the American citizens. There being no constitutional mode of procedure, no designated body to draft Articles with such grants and to propose them and to ascertain and propose the valid mode of ratification for them, the Philadelphia Convention did that work, guided only by basic American doctrine, the Statute of ’76 and the experience of the “conventions” which had made the national Articles of 1776. It followed a certain mode of procedure in the doing of these things, knowing and stating that to draft Articles and propose them and ascertain and propose the right mode of ratification for them is not the exercise of any power. With a knowledge which we of a later generation never should have forgotten—and which we who have been educated with them never will forget—the Philadelphia Convention knew that there were two makers of Articles in America, each of which had exercised its respective and different ability to make them, during the eleven years which preceded the Philadelphia Convention. They knew that every Article that was national could be made by no one but the people themselves, the “conventions,” which had made the national Articles of ’76 and which are named as the makers of all future Articles of that kind in the Seventh and the Fifth Articles proposed by Philadelphia.

And so, when the Philadelphia Convention had drafted its Articles and was about to propose them, it recognized the legal necessity of ascertaining, from the nature of those Articles, whether they were in the power of both or only of one of those existing makers of Articles. In the ascertainment, with their minds on the First Article grants of national power to interfere with individual liberty, they knew that no governments in America could make an Article of that kind. Their ascertainment was then ended and they knew that they must propose that mode of ratification which would send their Articles to the only valid ratifiers, the people themselves, the “conventions” of the Seventh and the Fifth Articles.

This was the procedure they had followed, when there was no constitutional mode of procedure provided. And so, with the extraordinary wisdom that characterized everything they did, that Philadelphia Convention wrote exactly the same procedure into the Fifth Article so that never again there might be lacking in America a constitutional mode of procedure for the evoking and the exercise of the only power that is ever exercised when constitutional Articles are made, the power of making them. As the Philadelphia Convention ended its existence with its own proposals, some new body had to do that work, when any new Article was to be proposed. As the work of the Philadelphia Convention had not been the exercise of any power but merely the work of proposing, it was a certainty that the new constitutional mode, exactly the same mode as that of Philadelphia, would also be the exercise of no power. And so, the Philadelphia Convention named the Congress (or a convention demanded by the state legislatures) to do the work of the Philadelphia Convention in drafting and proposing any new Article, and it named the Congress to perform the duty of ascertaining (by the nature of the new drafted Article) which of the two makers could make it, and then to propose a mode of ratification by which it would be validly ratified by such competent maker. As to the only powers ever to be exercised in the making of any new Article, the power of legislatures to make federal Articles, and the exclusive power of the people or “conventions” to make national Articles, the constitutional mode of procedure did not (nor could it, if Americans were not to become “subjects”) give the governments any of the exclusive ability of the people or “conventions,” and it did not (nor could it, if America were to be a republic) alter the existing ability of the majority of the American people to make their governments what they will. But, for the very practical purpose which Madison so clearly explained, the purpose of providing some check upon the tyranny of the majority or an aggressive minority over the individual rights of all Americans, the Fifth Article procedure could and did fail to provide any CONSTITUTIONAL method in which government power to interfere with individual liberty, as all surrendered power of that kind was distributed between different governments in the Constitution, could be changed in any way or transferred from one government to another, unless the “conventions” of the American citizens in three fourths of the states said “Yes” to any proposed change or transfer.

The Philadelphia Convention having proposed this particular check upon the existing ability of the people themselves to oppress individual liberty, a check which makes the words “by conventions in three fourths thereof” by far the most important words, the Fifth Article goes on to prescribe exactly the same check on the exercise of the ability of the state legislatures to make federal Articles.

That the Fifth Article, a constitutional mode of procedure for the exercise of two different existing abilities, was not a grant of any power to the state legislative governments is something that was known to every man in the conventions which made that Fifth Article.

In the Pennsylvania convention, Wilson plainly stated the knowledge of all that the supreme power “resides in the people, as the fountain of government; that the people have not—that the people meant not—and that the people ought not—to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.... My position is, sir, that, in this country, the supreme, absolute, and uncontrollable power resides in the people at large.” (2 Ell. Deb. 456 et seq.)

When more than half a century had passed, the same thing was known to those who knew American Constitutional Law.

“It is obviously impossible for the whole people to meet, prepare and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, [ergo, no permanent state governments or legislatures] can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people—WHO ALONE ARE COMPETENT TO EXERCISE THE POWERS OF SOVEREIGNTY IN FRAMING THE FUNDAMENTAL LAW—for ratification or rejection.”

So spoke the great Cooley in reference to making changes in national constitutions in his work on Constitutional Limitations (7th ed., 1903, at p. 61).

When one hundred and seventeen years had passed since the conventions in which we just sat, the same thing was known in the Supreme Court, in 1907.