Citizen or subject?

by Francis X. Hennessy

“That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that A MODE FOR INTRODUCING THEM should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and State governments TO ORIGINATE the amendment of errors, as they may be pointed out by the experience on one side, or on the other.” (Fed. No. 43.).

Sitting in the conventions of more than a century ago, we are naturally uninfluenced (in our reading of plain English) by the story of a century which has not even yet begun, the century that later began in 1800. And so we get from his own words the knowledge that the author of the Fifth Article knew it to be nothing but a constitutional mode of procedure, for the future exercise of either ability to make Articles. We see that the mode leaves with either “the general and state governments” the ability to propose an Amendment to those with existing power to make the particular proposed Amendment. And we note, with intent to remember, that the author of the Fifth Article, while he tells us about this reservation of existing abilities to propose amendments, pointedly does not tell us that the Article grants any power to any government or governments to make Amendments. In other words, we know that the Fifth Article reserves to the general government and to the state governments exclusively what otherwise they and every one else would have had—what Madison himself called “the unauthorized privilege of any respectable citizen or body of citizens”—the ability to propose, but that it does not grant to any of those governments or all of them collectively the ability which none of them ever had or can have, the ability to make, constitutional Articles of a national kind, which relate to interference with individual freedom. With this knowledge confirmed by the clear statement of the author of the Fifth Article, we read with interest its procedural provisions about the originating of new Articles, about their drafting and their proposal and the proposal of a mode of ratification for them, after they have been drafted and their nature has determined who can make them.

Sitting in those conventions of old, we are in the company of many of the men who were at the Philadelphia Convention. In Virginia we see Madison and Randolph and Mason and others; in New York we see Hamilton and others; in Pennsylvania we see Wilson and others; in South Carolina we see the Pinckneys and others. That is our experience in all the conventions. On all sides, among the American people assembled therein, are those familiar with and talking about the work at Philadelphia and the great debate there, in which was ascertained, from the character of the Articles drafted there, which maker of Articles, the state legislatures, with their existing ability to make federal Articles, or the “people” themselves, the “conventions,” with their existing unlimited ability to make all Articles, could make the Articles drafted and about to be proposed. These men, by their presence and their words, remind us how the nature of their First Article, the fact that it constituted government to interfere with human freedom, compelled the announcement of the decision that legislative governments could never make that kind of an Article. These men, by their presence and their words, remind us how they reached the ascertainment of the fact which compelled their Proposing Resolution to propose a mode of ratification by the “people” themselves, by the “conventions” of the Seventh and the Fifth Articles. They remind us, as one of the men with us later said in the Supreme Court, that all assembled in our “conventions” feel and acknowledge the legal necessity that every power to interfere with individual freedom must be derived by direct grant from the people. And, sitting in those conventions with them, where we all read the Fifth Article they are asked to make, we recognize with certainty that it prescribes that the Congress shall do exactly what the Philadelphia Convention has just done—propose, and nothing more.

The words of the Fifth Article tell us that only Congress shall draft and propose a new Article, just as the Philadelphia Convention drafted and proposed its new Articles; that, after Congress has drafted its new Article and is about to propose it, just as the Philadelphia Convention did, when it exercised no power at all, Congress shall examine carefully the nature of the drafted Article and, having ascertained by such examination which existing ability to make Articles (the limited ability of legislative governments or the unlimited ability of the “people” or “conventions”) is competent to make that particular Article, Congress shall propose ratification by the ability which can make the proposed Article.

We are not misled because the Article prescribes this one constitutional mode to evoke the existing limited ability or the existing unlimited ability. Providing a CONSTITUTIONAL mode for the exercise of either does not lessen one ability or increase the other. By reason of our education, we know the difference between the revolutionary exercise of existing power and the constitutional exercise of existing power. Because we have become of the “people better acquainted with the science of government than any other people in the world,” we know that to do something in a revolutionary manner does not necessarily mean to do it by bloodshed or on the battle-field. We know that to do something in a revolutionary manner means to do it outside of any legally prescribed mode of procedure for the exercise of existing power. We know that to do the same thing, in a constitutional mode, is to do it in some mode prescribed by human law or constitution. And that is why we understand, as did the men with whom we are sitting in those conventions, that Congress, in the future, is to do exactly what the Philadelphia Convention did and nothing more. Congress is to do it constitutionally (where the Philadelphia Convention did it outside of any human law and in a revolutionary manner) because the Fifth Article commands that Congress alone shall do it. Congress, when doing it, will be exercising no power. The Philadelphia Convention exercised no power when it did exactly the same things. And, when Congress does it, Congress will be bound, as Philadelphia was bound, to ascertain and propose the mode of ratification by which the proposed Article will be ratified by ratifiers competent to make that particular kind of an Article.

As we sit in the “conventions” and keep clearly in our mind that the “conventions” and the “state legislatures” (both of which are mentioned in the Fifth Article) each have existing but very different abilities to make Articles, every part of the language of the Fifth Article confirms our knowledge that the whole Article is no “grant” of power but is a “constitutional” mode for the exercise of existing powers.

Long after the conventions in which we sit, the Supreme Court paid the tribute to those who wrote the Fifth Article that they were “masters of apt, precise and classic English.” Keeping this thought in mind, our attention is directed to the three-time use of the one word “propose” in the Fifth Article. We know that to use the same word three times in one sentence is very poor English unless there is a distinct and definite intent and purpose that the meaning each time shall be identically the same. Such definite intent and purpose is the only deduction from what would otherwise be the inexcusable tautology of the language of the Fifth Article. So, when we read that Congress “shall propose amendments” or shall “call a convention for proposing Amendments” and that “one or the other mode of ratification may be proposed by the Congress,” we know with certainty that each use of the word “propose” is intended to convey an identical shade of meaning. From which we know that, as the proposal of a new Article (by Congress or a Convention) will be a mere proposal and will not make the proposed Article valid, so also the Congress proposal of a mode of ratification will remain a mere proposal and will not make that proposed mode valid for that proposed Article, unless its proposed ratifiers are competent to make that particular kind of an Article. This is what they had just known at Philadelphia about their own proposals (both of Articles and of mode of ratification) to us as we sit in the “conventions.” And so, in these conventions, we know the proposals mentioned in the Fifth Article to be identical (in nature) with the proposals made from Philadelphia. We know the procedure outlined in the Fifth Article to be exactly the same procedure as has just been followed at Philadelphia. We know that our ratification (in these “conventions”) of that procedure will be our approval of the procedure they followed at Philadelphia and will be its prescription as the CONSTITUTIONAL procedure hereafter to be followed when either existing ability, that of the state governments or that of ourselves in “conventions,” is to be hereafter evoked to exercise. From all of which we recognize that, if Congress should propose a mode of ratification by state legislatures and the proposed Article is a grant of power to interfere with the individual liberty of the American citizen, the state legislatures will remain just as incompetent to make that Article as they were known to be at Philadelphia when Madison and his colleagues held them to be incompetent to make their proposed Article of that kind, the First Article. And so we understand that the mere Congress proposal of a mode of ratification (for such an Article) by state governments will not give state governments ability to make such an Article.

Sitting in those old conventions, we now have read the procedural provisions of the Fifth Article up to the point where proposals bring, in a constitutional manner, a proposed new Article to makers with existing ability to make the particular Article which has come to them.

We now read with interest the next chronological step of the procedural provisions, the mention of the two existing makers of Articles—the state legislatures, makers of federal or declaratory Articles, and the “conventions” of the American citizens, makers of any Article.

We are actually sitting in “conventions” identical with those named in the Fifth Article. We are in the “conventions” mentioned in the Seventh Article and named therein by exactly the same word as is used in the Fifth Article, the word “conventions.” Both Seventh and Fifth Articles have been worded at Philadelphia. We, assembled in the “conventions” named in the Seventh Article, are the whole American people. In our conventions, so assembled, we are to make both the Seventh and the Fifth Articles, with their common use of exactly the same word “conventions.” And so we understand, with a knowledge which nothing can disturb, that the “conventions” of the Fifth Article mean exactly what the “conventions” of the Seventh Article mean. Thus we know, with knowledge which nothing can disturb, that the “conventions,” named in both Articles, are the American people, only competent makers (in 1787 or at any future time) of national Articles which interfere with or grant power to interfere with the individual freedom of the American citizen.