Only a week earlier, because the First Article did grant enumerated powers to interfere with individual rights, the Convention had known that the seven articles must go to the people directly to say their “Yes” or “No” to those grants of the First Article. For that reason the Convention (considering limited legislative ability to make federal Articles and omnipotent ability of the “people” to make all Articles) had decided that it MUST propose the mode of ratification by the “people,” the “conventions” of the Seventh and the Fifth Articles. As Marshall later authoritatively stated in the Supreme Court, the legal necessity of deriving national powers from the people themselves, the “conventions,” was then known and acknowledged by all.
It was natural, therefore, up to that September 10, that a convention, concentrated entirely upon grants of that kind, when wording its Article with a mode of procedure for making future changes, should have forgotten any changes except of the kind on which its own mind was concentrated and should have mentioned in its amending Article, up to September 10, no maker of future changes except the people themselves, “conventions” of the Seventh and the Fifth Articles.
And, at this point, we average Americans note, again with intent never to forget, that if the one competent maker of such Articles, the “conventions,” had remained the only maker of Articles mentioned in the Fifth Article, even the great “constitutional” lawyers of 1920 would never have made the monumental error of assuming that the Fifth Article was a grant of power (to those who made it and all the original Constitution) to make future Articles. Even they would have noticed and applied to their reading of the Fifth Article the well known legal fact that grantors never can and never do grant to themselves what they already have or a part of it.
Therefore, noting and remembering these significant facts, we turn with interest to the short story of how those able Americans at Philadelphia, their minds no longer exclusively concentrated on their own enumerated grants, remembered that there was another maker of Articles with existing but limited ability to make federal or declaratory Articles. And, with interest, we shall learn how this last week thought caused the Convention to change the Fifth Article by adding a mention of that existing limited ability and prescribing the mode of its future constitutional exercise.
That we average Americans may never be misled by inaccurate statements of the short story of how the mention of that limited ability was added to the mention of the unlimited ability of the “people” or “conventions” of the Fifth Article, it is fitting that the full record of the story be given verbatim. It adds not a little to our amusement that the story is copied from the brief of the leading “constitutional” lawyer of 1920 who championed the validity of the Eighteenth Amendment on the remarkable assumption and error, common to all his associates and his opponents, that the new mention changed the Fifth Article into a grant of ability to those legislatures instead of what its author, Madison, knew and stated that Article to be, a “mode of procedure” for the future constitutional exercise either of that existing limited ability or the other existing unlimited ability of the “people” or “conventions” of the Seventh and Fifth Articles. This is the record of that September 10, as copied from that brief, beginning immediately after Hamilton had voiced his opinion that there could be no danger in letting Congress propose an Amendment “as the people would finally decide in the case.”
“Mr. Madison remarked on the vagueness of the terms, ‘call a Convention for the purpose’ as sufficient reason for reconsidering the Article. How was a Convention to be formed? by what rule decide? what the force of its acts?
“On the motion of Mr. Gerry to reconsider
“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. (Ayes—9; noes—1; divided—1.)
“Mr. Sherman moved to add to the article ‘or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.’
“Mr. Gerry 2ded. the motion.