At once we notice with interest that these men, renowned as the marvelous leaders of a people better acquainted with the science of government than any other people in the world, men who have spent three entire months and fifteen days in their wonderful effort to frame a constitution which will secure “the Blessings of Liberty” to all American individuals and their posterity, still have no knowledge whatever, the weird and marvelous knowledge of 1917 and 1920, that this Madison Fifth Article gives to the state governments the very omnipotence which the American people, by a successful Revolution, had just wrested from the British Parliament. We note with interest Mason’s objection to the Madison “mode of procedure” in which may thereafter be exercised the limited ability of these very state governments to make federal Articles and the unlimited ability of the people or conventions to make national Articles. Mason’s objection, having direct reference to the grant of national powers in the First Article and his fear (the continued and expressed fear for the next two years in the “conventions” of the Seventh and the Fifth Articles) that the people may find these enumerated powers oppressive, is that, if the people do find them oppressive, Congress, which has these powers, will never propose an Amendment to take any of these powers away from Congress. For which reason Morris and Gerry moved to amend the Article so that, if Congress does not propose an Amendment for which there seems to be a demand, the legislatures of two thirds of the states may insist that Congress call a convention and that such convention may propose an Amendment. This suggestion was carried.

We next find Sherman moving to strike out the words “three fourths” after the word “legislatures” and after the word “conventions.” This motion was defeated. We next find, and we fix firmly in our mind with intent never to forget, that Gerry moved to strike out of Madison’s Article all reference to the “people” of the Preamble and the Tenth Amendment, the “conventions” of the Seventh and the Fifth Article, as the makers of any future Articles or changes in the Constitution. His motion was “to strike out the words ‘or by conventions in three fourths thereof.’”

As almost every one, during the last five years, including the sponsor of the Eighteenth Amendment in the House of Representatives, seems to have had an edition of our Constitution, in which the Fifth Article does not contain these words, and as everyone, during the same five years, has argued and acted as if these words were not in the Fifth Article or have no meaning whatever of the slightest importance, we intend to note and never forget that Gerry’s motion to strike these words out was beaten by a vote of ten to one.

As we know, the “people” of America themselves are identified by the word “conventions” in this Fifth Article, just as they are identified by the same word in the Seventh Article. As we know, we ourselves—the posterity of the “people” of the Preamble—are identified by this word “conventions” in the Fifth Article, just as we are identified in the Tenth Amendment as the most important reservee thereof by the word “people.” Wherefore our interest in this motion of Gerry and its overwhelming defeat is only exceeded by our absolute amazement, for the last five years, at the universal ignorance of the fact that it was defeated and of the fact that we are mentioned in the Fifth Article as the only competent makers of any new Articles which either directly interfere or grant power to interfere with our individual freedom.

We do not know, and to an extent we do not care, what was the purpose of Gerry. Gerry was always an opponent of a Constitution which vested national power in a general government. He was an advocate of the continued complete independence of each state and its government and of a mere federal union of states with a purely federal constitution. He was also always a consistent Tory in his mental attitude as to the relation of human being to government. If he had been successful in striking out any mention of ourselves, the “people” or “conventions,” leaving only the mention of the state legislatures, with their existing ability to make federal Articles, it would have been impossible that any further national power (beyond the grants of the First Article) be vested in the general government or taken from each state government, as only we ourselves could make national Articles like the First. We surmise that a mixture of his Tory mental attitude and his opposition to a general national government (which minimized the importance and diminished the independent sovereignty of each state government) prompted his motion. That his motion was overwhelmingly defeated is the only important fact for us American citizens. We shall not forget it even if our leaders and our “constitutional” thinkers forget it and ignore it.

We have no further interest in the short record of that September 15. No other change was made in the Madison Fifth Article except to take out of it any constitutional mode of procedure for the exercise of the existing ability of ourselves, the “people” or “conventions,” to deprive any state of an equal representation in the Senate with every other state. We still can do that, but we have no constitutional mode of procedure under the Fifth Article by which we can exercise our ability to do it. This change was not, however, as so many have absurdly thought, an exception to an imaginary power which we ourselves, the “conventions” of the Seventh Article and the “people” of the Preamble and the Tenth Amendment, in those very “conventions,” “granted” to ourselves, the same “people” and “conventions” mentioned in the Fifth Article. It was a recognition of our existing ability, about to be exercised in those “conventions,” the ability of the supreme will in America to deprive any state of its equal representation in the Senate; and it was our own exclusion of that ability from any constitutional exercise. The reflecting mind will remember that, in the heated arguments at Philadelphia, there was strong sentiment in favor of asking us, the people of America, the “conventions” of the Seventh Article, to exercise our exclusive ability in that very respect and make the Senate a body composed of members elected from larger proportions of the people than the members of the House of Representatives. It was the recollection of that effort which prompted the request that our exclusive ability to do that very thing should not be provided with a constitutional mode of future exercise.

We average Americans may now leave, in our present education, the entire story of that wonderful Convention at Philadelphia. We leave it with a knowledge of our Constitution we never had until we had lived with those Americans through the actual record of those three months and seventeen days from the end of May to September 17, 1787. We bring from it a knowledge that brooks no contradiction. We are certain that nothing in any of the Articles proposed at Philadelphia purported to give the state legislatures any power of any kind whatever, in the Fifth Article or anywhere else, either to interfere with the individual freedom of the American citizen or to grant the power of such interference to themselves or to our only government, the Congress. We bring from that Convention the knowledge that, unless something in the conventions of the American people, the “conventions” of the Seventh Article and the Fifth Article, changed the free men of America, the citizens of America, into subjects of an omnipotent legislative government, we ourselves in 1923 are still the citizens of America and possessors of the supreme will in America and are subjects of no government or governments in the world.

CHAPTER XI
CONVENTIONS CREATE GOVERNMENT OF MEN

The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government its language is general.... While the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grant of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded. (Justice Brewer, in the Supreme Court, South Carolina v. United States, 199 U. S. 437, at p. 448.)

It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words; but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. (Scott v. Sandford, 19 How. 393, p. 426.)