Citizen or subject?

by Francis X. Hennessy

Sitting again in the conventions of old, we recall exactly the same thought expressed by Madison himself in The Federalist, No. 10, where he says: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great object to which our inquiries are directed.... Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” These thoughts, from the worder of the Fifth Article, sink deep into our minds and hearts as we sit in those conventions. They come before us with startling clearness, when we read his words in that Article, “conventions in three fourths thereof,” and his words in reference to that Fifth Article mode of procedure, “In requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances toward the federal character.” (Fed. No. 39.)

We realize that his mode of procedure is national, in its strict conformity to the Statute of ’76, that all power over the people must come directly from the people, but that a judicious mixture of the federal system, in counting the votes of the people, is the best check human ingenuity has yet devised to protect individual rights against a tyrannical majority or an aggressive minority.

CHAPTER XII
TWO ARTICLES NAME “CONVENTIONS”

As we sit in those conventions and dwell upon the wisdom of the practical thought which inspired those words, “in three fourths thereof” after the word “conventions,” we know why the people with whom we sit compelled the tribute that they grasped the science of government better than any other people in the world. The one aim of all of them was the happiness and welfare of the individual. The welfare or prosperity of the political entities, which we know as America and the respective states, were of no importance to these people, except as they contributed to the welfare of the individual. The prestige and the power of each and every government in America and of all governments in America together were of no importance to these people, except as they contributed to the welfare of the individual.

And when we sit with them in their conventions, after living with them through their experience from 1775, we realize (as we have never realized before) that the Statute of ’76 was enacted, that the national constitutions of government were made by the people in each colony, that the sacrifices of the Revolution were endured for eight years, that the federation of states was established by states in 1781, that the wisdom and ability and patriotism of America had just assembled at Philadelphia in 1787 and made its proposal which we are considering in these conventions—all that the welfare of the INDIVIDUAL might be secured. We realize that the wisdom and ability and patriotism of America, at Philadelphia, had labored for months to ascertain, by the light of all human experience, in what proportion (solely to secure the welfare of the individual) power to interfere with individual freedom ought to be surrendered at all to governments and retained by the people, and in what proportion the quantum of surrendered power should be left with each state government over its own individuals and given to the new general government over its individual citizens. We realize that the wisdom and ability and patriotism of America, at Philadelphia, had known that no governments, then or in the future, if individual welfare was to be secured, could ever legally determine either proportion or could ever alter either proportion, when once established by the supreme will in America, the “people” of the Preamble and Tenth Amendment, the “conventions” of the Seventh and Fifth Articles.

And so we, of this later generation, sit in those “conventions” of the Seventh Article and we read the Fifth Article, where the same “conventions” are named, and look with awe upon the practical wisdom which dictated these words “in three fourths thereof,” after that mention of those “conventions” of the American people in the future. We realize now that those words are among the greatest securities to individual welfare written into the proposed Constitution by the wisdom and ability and patriotism of America, at Philadelphia. In that Constitution, other great securities protect individual welfare against usurpation from outside America and against usurpation by government or governments in America beyond the exercise of the national powers granted to each government by its own respective individual citizens. But this particular great security of individual welfare, the words “in three fourths thereof,” secures individual welfare against the unjust oppression of a majority or an aggressive minority of the Americans themselves unless that majority or minority secure a majority of the Americans in each of three fourths of the states to support the unjust oppression of individual welfare.

And thus, in those conventions, we realize, perhaps for the first time, that the important statements of the Seventh and the Fifth Articles are, in substance, identical statements by the supreme will of the American people. They are respectively the two statements or commands of the citizens of America, the new nation, as to WHEN the grants of power in the First Article shall be the grant of the American citizens and as to WHEN the grants of any similar power, in the generations to come, shall be the grants of the American citizens. In their language, in their purpose and in their plain command, both statements are exactly alike in substance. The statement or command of the American people, in the Seventh Article, is that the constitution of the government of interference with individual freedom, the First Article, shall be the Constitution of the American people when nine of the “conventions” (named in the Seventh and Fifth Articles) shall have said “Yes” to that constitution, to the enumerated grants of national power in the First Article. The statement or command of the American people, in the Fifth Article, is that any new proposed constitution of government of interference with individual freedom of the American citizen (the supposed Eighteenth Amendment being the first new constitution of that kind) shall be the Constitution of the American people when three fourths of the “conventions” (named in the Seventh and the Fifth Articles) shall have said “Yes” to that new proposed constitution.

At this point, we average Americans, sitting with those amazing Americans in their “conventions,” fix firmly in our minds, with intent never to forget, the fact that the “conventions” of the Seventh Article command are indisputably the American people themselves; that the “conventions” of the Fifth Article command are identical (except as to the time in which the American people assemble) with the “conventions” of the Seventh Article command; and that, therefore, the “conventions” of the Fifth Article command are also the people of America themselves. But the whole people of America are the “We, the people” of the Preamble. They are the only reservee of the Ninth Amendment, “the people” therein. They are the “most important factor” and reservee of the Tenth Amendment, “the people” therein. Wherefore, we grasp clearly why they are mentioned in the Fifth Article, because they have no government attorney in fact—as they could not have if we are “citizens of America”—to surrender what they reserved to themselves in the Ninth and Tenth Amendments.

Sitting in those conventions, we recall the limited ability of state legislatures, each speaking for its own state, to make federal Articles, Articles that neither interfere nor give power to interfere with individual liberty, the ability that made all the federal Articles of 1781. And we recall that the Constitution does not take that ability from the “states respectively” and their governments but reserves it to the “states respectively” and their governments, as the Tenth Amendment expressly declares. And so we understand the mention of that limited ability in the Fifth Article in the words “ratified by the legislatures of three fourths of the several states.” And, educated by the experience of the amazing Americans with whom we sit, we realize the meaning of this particular statement or command of the supreme will, the people of America. That supreme will is creating a new nation out of its human possessors. It is destroying forever the complete independence of the respective states, but leaving each of the states a political entity with citizens and much independence. It is incorporating the system of a federal union of states into the new national system of a union of all individual Americans, and it is subordinating the members of the federal union and also the federation itself to the union of human beings, to the supreme will in America, the will of the citizens of that nation. Therefore, as each state is no longer completely independent, it is no longer necessary that every member of the federal union shall utter its “Yes” to the making of any new Article of the federal or declaratory kind, the only kind which governments ever can make. And so we clearly understand, as the early Americans in their conventions understood at once, that the words “ratified by the legislatures of three fourths of the several states” was to be the command of the American people, sitting in those conventions, that a “Yes” from three fourths of the state governments would, thereafter, be necessary and sufficient for the making of a new proposed federal or declaratory Article. And we do not understand, as the Americans in those conventions never understood, that those words implied any “grant” of ability to the state governments to make any Articles in our Constitution, much less Articles by which governments interfere or give power to interfere with the individual freedom of the American citizen outside the matters enumerated in our First Article.

On the contrary, it becomes amazingly clear to us that the “conventions” of the American citizens are mentioned in the Fifth Article because the American citizens are the important reservee of the Ninth and Tenth Amendments. And it becomes equally clear that the “legislatures of the several states” are mentioned in the Fifth Article because the “states respectively” are the lesser reservees named in the Tenth Amendment.