Citizen or subject?

by Francis X. Hennessy

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.”

CHAPTER X
ABILITY OF LEGISLATURES REMEMBERED

Living through the days of that Convention, we have now seen three months and ten days of its sincere and able effort to word a Constitution which would “secure the Blessings of Liberty” to the individual American. We have seen them spend most of their time in the patriotic endeavor to adjust and settle how much, if any, national power to interfere with individual freedom that Constitution shall give to its only donee, the new and general government. In other words, we have seen the mind and thought and will of that Convention almost entirely concentrated, for those three months and ten days, upon the Article which is the constitution of government, the First Article, with its enumerated grants of general power to interfere with the human rights of the American citizen.

Keeping in mind the object of that intense concentration, the First Article grants of power of that kind, we average Americans note, with determined intent never to forget, the effect of that concentration upon the wording of our Fifth Article up to that tenth day of September. We note, with determined intent never to forget, that, from May 30 to September 10, the only maker of future changes mentioned was the “people” of America, the most important reservee of the Tenth Amendment, the “conventions” of the American people named in both the Seventh and the Fifth Articles.

As this fact and its tremendous meaning have never been known or mentioned in the sorry tale of the five years from 1917 to 1922, we average Americans are determined to dwell upon it briefly so that we cannot escape an accurate appreciation of the short remaining story of the one week at Philadelphia, in 1787, in relation to our Fifth Article.