This instrument contains an enumeration of powers expressly granted by the people to their government.... In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized “to make all laws which shall be necessary and proper” for the purpose. (Gibbons v. Ogden, 9 Wheat. 1.)
This “last” of the enumerated powers, as Marshall accurately terms it, is that granted in the last paragraph of Section 8 of the First Article.
It is because the First Article IS the constitution of government of the American citizen that his government has received its tribute as a government of enumerated powers. This fact is clearly explained in the Supreme Court in Kansas v. Colorado, 206 U. S. 46.
Indeed, we need no Marshall to make us fully understand that when human beings constitute a government, the one important thing which they do is to grant government power to interfere, within a limited discretion, with their own individual freedom by issuing commands in restraint of the exercise of that freedom. Anything else that the government is authorized to do is a mere incident of its existence as a government. The power to issue commands interfering with human freedom is the substance and essence of government. That is why all the national powers of any American government are included in whatever ability its legislature has to make valid commands of that kind. The letter which went from the Philadelphia Convention, with the proposed Constitution, accurately expresses this fact in the words, “Individuals entering into society must give up a share of liberty to preserve the rest.” (1 Ell. Deb. 17.) By surrender of some of their liberties is meant their grant of power to make commands or laws interfering with those surrendered liberties. Whenever government is constituted, “the people must cede to it some of their natural rights, in order to vest it with requisite powers.” (Jay, Fed. No. 2.)
We thus know for a certainty that the First Article of our Constitution is the only one which purports to vest in government any national powers.
The Second Article deals entirely with the executive department, the authority of the president and that department to enforce valid laws, the election of the president and vice-president, etc. The Third Article deals with the authority of the judicial department [including authority to declare what laws have been validly passed, etc.] and with the manner of the appointment of the members of that department, etc. The Fourth Article contains miscellaneous declaratory statements of certain things which the citizens of America make the fundamental law of America. The Sixth Article contains other declaratory statements of what is also made the fundamental law of America.
This leaves to be considered only the Fifth and the Seventh Articles. Like the First Article, they relate to the vesting of national power in our American national government; but, unlike the First Article, neither of them purports to grant any such power to any government. They deal with the manner of its grant by the only competent grantors of power of that kind, the “conventions” of the American people, called by that name, “conventions,” in the Fifth and Seventh Articles. As the Seventh Article was intended by those who worded it to accomplish its purpose simultaneously with and by reason of its ratification, and as its purpose was the main object of the Convention which framed all the Articles, we will consider it before the Fifth.
The Seventh is merely the explicit declaratory statement of those whose “expressed authority ... alone could give due validity to the Constitution,” the Americans themselves assembled in their conventions, that when the Americans, assembled in nine of those thirteen conventions, have answered “Yes” to the entire proposed Constitution, the American nation shall instantly exist, all Americans in those former nations where those nine conventions assembled shall instantly be the citizens of the new nation, and all the grants of national power, expressed in the First Article of that Constitution, shall have been validly made as the first important act of that collective citizenship.
We now consider for a moment the Fifth Article, the only remaining one which relates to grant of national power. That Fifth Article does not relate to grant of national power alone. It also relates to grant of federal power. It relates to the future grant of either of those vitally distinct kinds of power. It is further proof of the logical mind of the man who wrote that extraordinary letter of April, 1787, and who largely, in substance, planned the entire system of a constitution of government, both federal and national, which is embodied in our Constitution. Madison and his associates, in The Federalist and in the Philadelphia Convention and in the various ratifying conventions, repeatedly stated their knowledge that the proposed Constitution could not possibly be perfect. With the utmost frankness, they expressed the sane conviction that it would be contrary to all human experience, if it were found perfect in the working out of an entirely new and remarkable dual system of government of a free people by themselves, For this reason, the Fifth Article was worded so as to prescribe a constitutional mode of procedure in which the existing ability of the American citizens to make any kind of Article, whether national or federal, could thereafter be invoked to exercise and be exercised. It was also worded so as to provide a constitutional mode of procedure in which there could be likewise invoked to exercise and be exercised the existing limited ability of the state legislatures to make articles which were not national. As a matter of fact, it was only at the last moment, in the Convention, that Madison and Hamilton, remembering this limited ability of those legislatures, wrote into Article V any mention of it and its future constitutional exercise. As the story of the First, Fifth and Seventh Articles, at Philadelphia in 1787, will be more fully treated hereinafter, we leave them now to continue the brief story of the voluntary and direct action of the Americans themselves, by which they created the nation that is America, became its citizens and, as such, vested its only government with its enumerated national powers.
When the Philadelphia Convention, on September 17, 1787, had completed its voluntary task of wording the proposed Constitution of a nation and its supreme government of enumerated powers, the proposed Constitution was referred to the American people, for their own approval or rejection, assembled in their conventions.