Citizen or subject?

by Francis X. Hennessy

We feel that it will be quite difficult, when we come later to the constitutional thinkers of 1917 and 1920, for them to convince us that Madison meant his Fifth Article to alter “the dependent derivative authority of the legislatures of the state” and, whenever another government makes the suggestion, put that dependent authority above what he calls “the superior power of the people.”

And we feel that these “constitutional thinkers” will find it impossible to convince us when we recall Madison’s other words, directly referring to his Fifth Article and the existing power of the people, mentioned therein by the word “conventions.” These are the words to which we allude: “Were it [his Fifth Article] wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union, and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.” It is Madison himself who puts the one word “majority” in italics. He does so to call attention to the fact that his Article leaves “the supreme and ultimate authority” in the people (named as “conventions” in his Article) but not necessarily capable of exercise by the majority in any constitutional manner. He goes on to explain this very fact by saying that when the mode of procedure prescribed in his Article is read, it is found that “in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character.” (Fed. No. 39.)

In New York we find Hamilton, who seconded the suggestion of Madison’s Fifth Article at Philadelphia, almost immediately after he had stated that there would be no danger in permitting Congress to propose amendments since “the final decision in the case will rest with the people.” As we recall, Hamilton said this when the tentative Fifth Article mentioned no one but the people, “conventions,” as the maker of future Articles, because he and Madison and their associates at Philadelphia, whose minds had so far been concentrated upon the national First Article, had not yet grasped the fact, later stated by Hamilton to be his conviction, that all future changes would probably relate “to the organization of government and not to the mass of its powers.” We are, therefore, interested to find Hamilton, in New York, on Friday, December 14, 1787, pointing out that “It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers.... The possibility of a question of this nature proves the necessity of laying the foundations of our national government [the First Article grant of national powers] deeper than in the mere sanction of delegated authority [referring directly to the state legislatures which are mentioned in the Fifth Article]. The fabric of American empire ought to rest on the solid basis OF THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (Fed. No. 22.) The capitals are those of Hamilton himself. We rather feel that his stress upon the “PEOPLE” sharply contrasted with the state “legislatures,” as the only legitimate direct source of national power, such as is granted in the First Article and the Eighteenth Amendment, will be somewhat of a shock to the “constitutional thinkers” of 1917 and 1920. Sitting in the conventions of old, we rather recognize the capitalized words, where Hamilton says that national power in America “ought to rest on the solid basis of the CONSENT OF THE PEOPLE,” as a direct echo from the Statute of ’76, enacted only eleven years before those conventions. That Statute says that every just power of government must be derived directly from the governed.

And we become rather convinced that Hamilton and Madison, when submitting the Fifth Article at Philadelphia, never worded it so that national power in America could be granted through the illegitimate authority of the state legislatures, when we read what either one or both of them have to say on Tuesday, February 5, 1788, in The Federalist, No. 49. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority”—a direct reference to the “conventions” of the Seventh and the Fifth Articles—“whenever it may be necessary to enlarge, diminish, or new-model the powers of government.”

If we ever had any doubt as to what Hamilton meant the Fifth Article to provide, our doubt is ended forever when we hear Hamilton, in the New York Convention, speak of the state legislatures, which the “constitutional thinkers” of 1917 and 1920 assume to have been made attorney in fact for the American people for every purpose by that Fifth Article. “Look through their history,” he says, speaking of those state legislative governments. “What factions have arisen from the most trifling causes! What intrigues have been practiced for the most illiberal purposes! Is not the State of Rhode Island, at this moment, struggling under difficulties and distresses, for having been led blindly by the spirit of the multitude? What is her legislature but the picture of a mob?” Most of the states “are either governed by a single democratic assembly, or have a senate constituted entirely upon democratic principles. These have been more or less embroiled in factions, and have generally been the image and echo of the multitude.... Let us beware that we do not make the state legislatures a vehicle in which the evil humors may be conveyed into the national system.” (2 Ell. Deb. 317.) When Hamilton knew that these state legislatures were not the legitimate source of national powers in a republic and when he had this view of their general character, will any sane man believe that he advocated that the citizens of America should make these legislatures (although the citizens of America elect not a single member in them) absolute attorney in fact for the citizens of America for all purposes? Will any sane man believe that he proposed to substitute them, as grantors of national power, for the “conventions” of the Fifth Article, which “conventions” already excited the admiration of the entire world, according to the author of the Fifth Article, as the only safe or effective mode in which the free citizens of a nation could vest its government with any power to interfere with their own individual liberty.

“The authority of Constitutions over governments, and the sovereignty of the people over Constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.” This impressive statement of the truth that the “governments,” state “legislatures,” never were placed by the Fifth Article above the Constitution in which it is, and above the sovereignty of the people, mentioned therein as “conventions,” and cannot be placed there by another government, the Congress, is not a statement made in the heat of the controversy about the Eighteenth Amendment. It is the statement of James Madison, author of the Fifth Article, made in the Virginia House of Delegates in 1799;

It is becoming almost impossible for us, as we sit in these conventions and hear every word that is said, to understand the source of the modern thought, if we can dignify it by calling it “thought,” that the Fifth Article is a power of attorney from the citizens of America to the state governments, every member of which is elected by the citizens of the respective states and not by the citizens of America. It is beginning to grow upon us that any such “thought” is based on sheer assumption and that the entire record of the “conventions” is a closed book to those who hold the assumption. We know that they have the explicit statement of the Tenth Amendment, that the Constitution gives no power of any kind to any donee except the one new American government, the government with the enumerated powers of the First Article. As no power of attorney was ever written or can be conceived except one which grants the attorney in fact some power, the Tenth Amendment makes absolutely certain that neither the Fifth Article nor the entire Constitution gives to the state legislatures any power as attorneys in fact for the citizens of America.

Moreover, breathing the atmosphere of those first “conventions” of the kind named in the Seventh and the Fifth Articles, the “conventions” where individual liberty of the American is the only object of advocate and opponent of the Articles under consideration, we begin to sense that the holders of the impossible assumption have never fully grasped the amazing and vital distinction between “state legislatures” and “conventions” of the kind named in the Seventh and the Fifth Articles. When we shall hear the “constitutional thinkers” of 1917 and 1920 speak of the “legislatures” and the “conventions” as two different agents given omnipotent attorneyship in fact over all the individual rights of the citizens of America, we shall wonder if these thinkers appreciate that the “state legislatures” are permanent bodies, always existing, and that the “conventions” of the Fifth Article are, to the “conventions” in which we sit, bodies that never would have an existence until some future moment, when the American citizens themselves would again be called to assemble in and thus make those “conventions.” Nothing could show more clearly that the “conventions” of the Seventh Article looked upon the “conventions” of the Fifth Article, not as the donee of any power of attorney, but as themselves or their posterity, the citizens of America, assembling again to determine whether there shall be any change in the distribution of power to interfere with their individual liberty. And our thought, re-echoed again and again by Marshall and others from the Bench of the Supreme Court in the century that follows the first assembling of these “conventions,” seems but the repetition of what we hear said in the Massachusetts Convention as the tribute of its Americans to the Fifth Article.

On January 23, 1788, the Americans, assembled in Massachusetts, took up the consideration of that Article. As in every convention, there had been great opposition to the earlier Articles; as in every convention, nearly all of it had been to the great national powers of the First Article granted to the new government and taken from the state governments; and, as in every convention, almost all of this opposition had been the continued complaint that the state governments were being destroyed.

It was not that the Americans loved the state governments. The truth is that, like every natural human being, they objected to all governments. Their sole thought was fear of oppressive government infringement upon their individual liberty. In this respect, the Americans in each convention feared their own legislative government less than the new proposed Congress, because they would elect all the members of the former and only a few members of the latter. If it had been suggested, by any of the many opponents of the new Constitution, that any possible twisting of the words of the Fifth Article meant that governments outside their state, not one of whose members they themselves would elect, could infringe upon their every individual right, without any constitutional restraint, the record of every convention would have been one unanimous “NO,” against the new Constitution. But, as no “constitutional thinker” of 1917 or 1920 sat in any of those conventions, no such suggestion was ever made therein.