To those who hold such a concept there comes no shock when they are asked to imagine that the language of the Fifth Article implies a grant of ability to the state governments to do what those governments will with the liberties of the citizens of America. But we are sitting in “conventions” of Americans of a different type, Americans who, eleven years earlier, have repudiated forever the concept that men are made for kings or governments or political entities. And, if we wish to know what the Americans in these conventions think of the concept of the Bolshevik Russian and the Eighteenth Amendment American, we get our wish from the man who wrote the language of the Fifth Article.
“We have heard of the impious doctrine in the Old World,” the reactionary doctrine of modern Russia and of our own aggressive minority, manifested in two different disguises, “that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape—that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?... As far as the sovereignty of the states can not be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us.”
This is the language of Madison, in The Federalist, Number 45, asking the individual Americans to make the Constitution to secure their individual happiness. It will amaze us later herein to hear the thought of our modern “constitutional” thinkers that his Fifth Article makes the state governments (from whom that Constitution took sovereignty to secure the individual happiness of the American citizen) a supreme and omnipotent government of the American citizens, a government knowing no will but its own. Meanwhile let us forget this latter day nonsense and breathe again the real American atmosphere, where individuals, entering a society, give up a share of their liberty, to preserve the rest. Let us sit with the real “constitutional” thinkers of America as they sat in the conventions and read with them the Fifth Article worded by Madison. This is what they read:
ARTICLE V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Sitting with these Americans, in their “conventions,” we note immediately, as they note, that the Article names themselves. And we note, as they note, that it names themselves, the individual American citizens, the “people” of the Preamble and the Tenth Amendment, by exactly the same name, “conventions,” as in the Seventh Article and as in the Resolution of the Philadelphia Convention, which proposed the only valid mode of ratification for the constitution of government of men in the First Article, the mode which required ratification by the individual Americans themselves, the “conventions” of the Seventh and the Fifth Articles. We cannot help noting it—as we intend never to forget it—because we are sitting with them, as the people of America, in the very “conventions” so named in the Seventh Article.
Having their vital and accurate knowledge of the difference between federal and national Articles, that only the latter kind exercises or grants power to interfere with individual human freedom, we recognize at once why the state legislatures are also mentioned in the Fifth Article, although they never can make national Articles. We know it is because those “legislatures,” as the Tenth Amendment expressly declares, retain their existing ability to make federal Articles or Articles which neither exercise nor grant power to interfere with individual freedom. And, sitting in those “conventions,” where Hamilton also sits, we recall his remarkable prophecy, just made to us in The Federalist, as we were about to enter the “conventions” with the other Americans therein. “For my own part, I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers.” (Fed. No. 85.) In that absolutely accurate advance knowledge of the complete history of constitutional amendment from 1789 to 1917, we recognize the motive which prompted Madison and Hamilton, on September 10, 1787, to add the mention of those legislative governments to the Fifth Article mention of the exclusive ability of the people or “conventions” to make all future Articles which do relate to the “mass of its powers” to interfere with individual freedom conferred upon the one government of America. We understand that these legislative governments are mentioned in the Fifth Article, which we are now reading in the “conventions” of old, because those “legislatures” have an existing ability to make federal Articles which relate to other things than the national power of government to interfere with individual freedom.
Having thus satisfied ourselves, in those conventions, that we ourselves, the “people” of America, are mentioned in the Fifth Article as the sole makers of any future Article which exercises or grants power to interfere with our individual freedom, we turn with interest to the procedure which the Article establishes as the only constitutional mode of procedure in which that exclusive ability of our own may hereafter be evoked to exercise and be exercised.
From the language of the Article itself, we know at once that it is simply the statement of a mode of procedure in which our own unlimited ability or the limited ability of the state legislatures, when the occasion seems to arise for the respective exercise of either ability, are hereafter to be evoked by some body of men, playing the part which the Philadelphia Convention has just played in evoking our own exclusive ability, the ability of the “people” or “conventions.”
Outside the language of the Fifth Article itself, many other things make that fact clear to us. For instance, we recall what Madison has just told us. He had written this Article at Philadelphia. Then, asking the American people to prescribe this constitutional mode of procedure for the future exercise of either respective existing ability, he has explained to us, just before the convention in which we sit, what the Fifth Article means.