Citizen or subject?

by Francis X. Hennessy

That we may fix firmly in our own minds the knowledge which all Americans then had, which our leaders never acquired or have entirely forgotten, let us briefly review what the earlier Americans did at Philadelphia in obedience to that knowledge of basic American law.

On May 28, Randolph of Virginia “opened the main business” of the Convention. He proposed fifteen resolutions embodying the suggestion of what should be in the different Articles. Resolution Number 15 was that such Articles should be submitted to “conventions,” “to be expressly chosen by the people, to consider and decide thereon.” (5 Ell. Deb. 128.)

The first short debate on this Resolution took place on June 5. In it Madison stated that he “thought this provision essential. The Articles of Confederation themselves were defective in this respect, resting, in many of the states, on the legislative sanction only.” The resolution was then postponed for further consideration. On June 12, “The question was taken on the 15th Resolution, to wit, referring the new system to the people of the United States for ratification. It passed in the affirmative.” (5 Ell. Deb. 183.) This was all in the Committee of the Whole.

On June 13, that Committee made their full report, in which the Randolph Resolution Number 15 was embodied in words as Resolution Number 19 of the report. On June 16, while the Convention was again sitting as a Committee of the Whole, the great struggle was on between the conflicting opinions as to how and in what proportion should be elected the future legislators who were to exercise the granted powers over Americans. On that day, the discussion centered on the relative merits of the Randolph national proposals and a set of federal Articles amending the existing Federal Constitution. In supporting Randolph, Wilson of Pennsylvania stated that “he did not fear that the people would not follow us into a national government; and it will be a further recommendation of Mr. Randolph’s plan that it is to be submitted to them, and not to the legislatures, for ratification.” (5 Ell. Deb. 196.)

On July 23, Resolution Number 19 came up for action. Remembering how insistent many of the delegates were that the general government should be kept a purely federal one, it is not surprising to find Oliver Ellsworth of Connecticut opening the short debate with a motion that the Constitution “be referred to the legislatures of the states for ratification.” But it will also be remembered that the powers to be granted in the new Articles had not yet been settled. The nationalists in the Convention, intent on having some national Articles, knew that the proposed ratification must be by the people themselves, “felt and acknowledged by all” to be the only competent grantors of national powers.

Colonel Mason of Virginia “considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. They are the mere creatures of the state constitutions, and cannot be greater than their creators.... Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment that this doctrine should be cherished, as the basis of free government.” (5 Ell. Deb. 352.)

Rufus King of Massachusetts, influenced undoubtedly by the error of thinking that the Convention meant to act within the Articles of Confederation, was inclined to agree with Ellsworth “that the legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people.... At the same time, he preferred a reference to the authority of the people, expressly delegated to conventions, as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution.” (5 Ell. Deb. 355.)

Madison “thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the state constitutions; and it would be a novel and dangerous doctrine, that a legislature could change the constitution under which it held its existence.” (5 Ell. Deb. 355.)

Ellsworth’s motion to send to the state legislative governments, and not to the people themselves, assembled in “conventions,” was lost by a vote of seven to three. Resolution Number 19, that the new Articles must be sent to the people themselves was adopted by a vote of nine to one, Ellsworth and King both voting for it. (5 Ell. Deb. 356.)

This impressive discussion, now continued for over a month of 1787, with its display of accurate knowledge of the distinction between sending Articles to legislatures and “referring” them to the people, makes quite amusing what we shall hear later in 1917. It will come from the counsel of the political organization which dictated that governments should make the supposed Eighteenth Amendment. After he kindly tells us that history has proven that these Americans of 1787 “builded more wisely than they knew,” meaning “than he knew,” he shall later impart to us the remarkable information that “the framers in the Constitutional Convention knew very little, if anything, about referendums.”