Citizen or subject?

by Francis X. Hennessy

Now, if Wilson and the other delegates at Philadelphia, on September 10, knew that to make a proposal was no exercise of power, they clearly understood that Madison’s Fifth Article, when it stated that Congress might propose an Amendment and Congress might propose a mode of ratification, was an Article which purported to grant no power to Congress. If we recall the truth, which Madison so often expressed, that it is the privilege of any citizen or body of citizens to propose that existing power be exercised, we realize that, if the Fifth Article had not mentioned Congress as the maker of either proposal, Congress would still have had full ability to make either or both proposals at any time. As the delegates at Philadelphia knew this as well as we now know it, as we have been helped to our appreciation of it by them and their statements, it is apparent how instantly they knew that the mention of Congress, as the proposer of an Amendment and as the proposer of its mode of ratification, meant that Congress alone was to be left with—not given—the duty which they had assumed themselves to perform at Philadelphia. That duty, as they knew and we now know, was to draft a proposed Article and, after it had been worded, to examine it and its nature and (with the validity of their ultimate proposal absolutely determined by that nature) then to propose the Article and a mode of ratification for it which would mean ratification by those competent to ratify an Article of its particular kind. In other words, they knew that, whenever Congress performed the duty they had just performed themselves, after an Article had been drafted, it would be legally necessary for Congress, as it had been for them at Philadelphia, to consider the existing and different abilities of the “people” or “conventions” and the state legislatures to make Articles, and from that consideration to ascertain a competent ratifier for the particular Article they had drafted and, the validity of the ratification to depend entirely on the accuracy of their ascertainment and not on their own proposal of ratification, to propose a mode of ratification in which that Article would be made by those competent to make it. With the meaning and effect of a “proposal” so clearly known to them all, with their own immediate recent experience in the performance of the very duty which Madison’s Fifth Article left the duty of Congress in the future, it was a simple matter for these delegates at Philadelphia to know exactly what was the only possible meaning of Madison’s words, when the same “shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the legislature of the U. S.”

How accurately Madison himself knew all this, how accurately he knew that the Philadelphia proposal would validate neither proposed Articles nor proposed mode of ratification, and that Congress proposal in the future would never validate either proposed Article or proposed mode of ratification, he has not left to speculation.

It was the charge of the opponents of the proposed Constitution that the Philadelphia Convention had exceeded its powers in proposing those Articles. Madison defended himself and his Philadelphia associates in The Federalist, Number 40, published in the New York Packet on Friday, January 18, 1788. With his logical mind, he echoed the knowledge of Wilson and his other colleagues, who had drafted and proposed the Articles and proposed their ratification by the “people” or “conventions” of the Seventh and the Fifth Articles. It was his knowledge, as it was their knowledge, that the Philadelphia proposals were, as the future Congress proposals would be, no exercise of power and that the validity of any Article, proposed at Philadelphia or proposed by Congress, must always depend, not merely upon its being ratified in the mode proposed respectively by Philadelphia or by Congress, but also—and immeasurably the most important test of valid ratification—upon its being ratified by ratifiers competent to make the particular Article.

It was his knowledge, as it was their knowledge, as it is now our knowledge, that if a proposed Article directly interfere with or grant power to interfere with human freedom, as the First Article, or the Eighteenth Amendment, it can never be validly made by government but only by the “people” of the Tenth Amendment; the “conventions” of the “Seventh” and “Fifth” Articles.

Among other things, in his defense of himself and his Philadelphia associates, this is what Madison said of them: “They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,’ since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several states for establishing the constitutions under which they are now governed;... They must have borne in mind that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of the supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.”

And so we come from that September 10, 1787, with the accurate knowledge that Madison then proposed and Hamilton seconded and all the delegates adopted the first amending Article which ever mentioned the state governments as makers of any future Amendments. And we know that they did so with the unmistakable intent and understanding that it changed not at all the existing inability of any governments in America to create, for themselves or for other governments, any national power to interfere with the citizens of America in the exercise of their human freedom. And we also come from that record with the certain knowledge that the Madison Fifth Article of September 10 merely provided that, when future Articles were suggested, the Congress should play the part which the Philadelphia Convention was playing, which part involved no exercise of power of any kind, and that such part of Congress should consist in merely proposing an Article and proposing its mode of ratification. And we also come from that day with the equally certain knowledge, which we do not intend to forget, that Madison himself knew clearly that the valid ratification of future Articles would depend, as he knew the valid ratification of the Philadelphia Articles did depend, not on the fact that ratification was in the mode proposed but on the fact that the proposer of a mode of ratification should propose a mode in which the proposed Article could be made by those competent to make an Article of its particular kind.

For these reasons, if the supporters of the Eighteenth Amendment expect us, now educated with those earlier Americans up to and including the record of September 10, 1787, to believe that the Madison Fifth Article, first worded on that day, purported to grant or was understood and intended by Madison and his colleagues to grant any power to the state legislative governments in America over ourselves, the citizens of America, we shall hereafter listen, with naught but amusement, to these amateur “constitutional” thinkers and their effort to change legal fact into fiction by assumption. Confirmed by our education with Madison and the others who had all to do with the wording and the making of that Fifth Article of September 10, 1787, we recognize, even if these “constitutional” thinkers do not recognize, that we ourselves are the “conventions” of the Fifth Article in which sit the American people to exercise their exclusive ability to grant to government any power to interfere with their individual freedom. We have now, even if these “constitutional” thinkers never have had, the knowledge of the legal necessity that power of that kind must be derived from ourselves, the “people” of the Tenth Amendment and the “conventions” of the Seventh and the Fifth Articles—the necessity in 1787 “felt and acknowledged by all.” We know, as Marshall knew in one of those “conventions” of 1788 and as he knew and stated on the Bench of the Supreme Court, that there is but one way in which we, the citizens of America, can act safely or effectively or wisely on the subject of new interference with our individual freedom, by assembling in our “conventions,” the “conventions” of the Fifth as well as the Seventh Article.

And so, with our knowledge and certainty that the Madison Fifth Article of September 10 never could change the status of the free American into that of the subject of an omnipotent government, we come to the last business day of the Philadelphia Convention, September 15, the only other day on which the Madison Fifth Article, with its mention of legislative ability to make federal Articles but not national Articles, was ever considered at Philadelphia.

On that day the Committee of Style reported the seven Articles which we now know as our Constitution. The Madison amending Article, except that “the legislature of the U. S.” was called “the Congress,” was identical with that of September 10. As it is important that we Americans shall never be told anything about the record of September 10 or September 15, in relation to this Madison Fifth Article, which is not something that is in the record, that we may be given no distorted version of what happened in that Convention about the only Article which ever mentioned state “legislatures” as makers of some future Articles, we shall have again the pleasure of reading the entire record of September 15. Again we read it from the brief of the great “constitutional” lawyer of 1920 who argued on the assumption that this Article, worded by Madison, was intended to make us and did make us, the citizens of America, the subjects of an omnipotent government, composed mostly of the client governments whom he represented in the Court Room of 1920. This is his record of the full story of September 15 in relation to the Fifth Article of Madison, from which record this “constitutional” lawyer and his associates hope to derive—how we know not—some support for this belief and this argument.

“Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.