Citizen or subject?

by Francis X. Hennessy

And so, on that January 23, we hear the Fifth Article read in that Massachusetts convention, and we see Rufus King rising and we hear him state that “He believed gentlemen had not, in their objections to the Constitution, recollected that this Article was a part of it; for many of the arguments of gentlemen were founded on the idea of future amendments being impracticable.” He dwelt “on the superior excellence of the proposed Constitution in this particular, and called upon gentlemen to produce an instance, in any other national constitution, where the people had so fair an opportunity to correct any abuse which might take place in the future administration of the government under it.”

And then we hear Dr. Jarvis: “Mr. President, I cannot suffer the present Article to be passed, without rising to express my entire and perfect approbation of it. Whatever may have been my private opinion of any other part, or whatever faults or imperfections I have remarked, or fancied I have seen, in any other instance, here, sir, I have found complete satisfaction: this has been a resting place, on which I have reposed myself in the fullest security, whenever a doubt has occurred, in considering any other passage in the proposed Constitution. The honorable gentleman last speaking has called upon those persons who are opposed to our receiving the present system, to show another government, in which such a wise precaution has been taken to secure to the people the right of making such alterations and amendments, in a peaceable way, as experience shall have proved to be necessary. Allow me to say, sir, as far as the narrow limits of my own information extend, I know of no such example. In other countries, sir,—unhappily for mankind,—the history of their respective revolutions has been written in blood; and it is in this only that any great or important change in our political situation has been effected, without public commotions. When we shall have adopted the Constitution before us, we shall have in this Article an adequate provision for all the purposes of political reformation. If, in the course of its operation, this government shall appear to be too severe, here are the means by which this severity may be assuaged and corrected.... We have united against the British; we have united in calling the late federal convention; and we may certainly unite again in such alterations as in reason shall appear to be important for the peace and happiness of America.” (2 Ell. Deb. 116.)

No man ever voiced such sentiments, no conventions of Americans ever listened to them, with any knowledge or thought that the Fifth Article, “the wise precaution” to secure the liberty of the individual if the government with the national powers of the First Article oppressed that liberty, was itself a grant to another government, ten legislatures outside of the Massachusetts in which that convention was held, to infringe upon the individual liberty of every American in Massachusetts on every subject without any constitutional restraint.

And so, we average Americans end our education in the only “conventions,” named in the Seventh or the Fifth Articles, which yet have assembled. And we end that education knowing that there is nothing anywhere in the Constitution those conventions adopted, and especially nothing in the Fifth Article, which changed the free American into a subject of any government or governments in America. Everything we have heard—and what we have repeated is but little of what we have heard—serves but to emphasize the only meaning of its “apt, precise and classic English,” the plain meaning which we got from its language when we read it at the beginning of these conventions with the Americans who made it.

It is, as its author explained it, naught but a constitutional mode of procedure in which may be thereafter exercised, in a constitutional manner, either the limited ability of state governments to make Articles which do not concern themselves with the infringement of individual liberty or the unlimited ability of the people themselves, the “conventions” of the kind in which we have sat, to make any Articles. The procedure prescribed for such constitutional exercise is simplicity itself to those who sit in those conventions. It is exactly the procedure just followed (up to the point where the work of any proposer of a new Article and its mode of ratification must end) by the Philadelphia Convention which drafted it and the other six Articles. The Philadelphia Convention found itself without any CONSTITUTIONAL mode of procedure in which could be evoked to exercise the existing and exclusive power of the people of America to grant any government power to infringe upon the individual liberty of the American citizens. There being no constitutional mode of procedure, no designated body to draft Articles with such grants and to propose them and to ascertain and propose the valid mode of ratification for them, the Philadelphia Convention did that work, guided only by basic American doctrine, the Statute of ’76 and the experience of the “conventions” which had made the national Articles of 1776. It followed a certain mode of procedure in the doing of these things, knowing and stating that to draft Articles and propose them and ascertain and propose the right mode of ratification for them is not the exercise of any power. With a knowledge which we of a later generation never should have forgotten—and which we who have been educated with them never will forget—the Philadelphia Convention knew that there were two makers of Articles in America, each of which had exercised its respective and different ability to make them, during the eleven years which preceded the Philadelphia Convention. They knew that every Article that was national could be made by no one but the people themselves, the “conventions,” which had made the national Articles of ’76 and which are named as the makers of all future Articles of that kind in the Seventh and the Fifth Articles proposed by Philadelphia.

And so, when the Philadelphia Convention had drafted its Articles and was about to propose them, it recognized the legal necessity of ascertaining, from the nature of those Articles, whether they were in the power of both or only of one of those existing makers of Articles. In the ascertainment, with their minds on the First Article grants of national power to interfere with individual liberty, they knew that no governments in America could make an Article of that kind. Their ascertainment was then ended and they knew that they must propose that mode of ratification which would send their Articles to the only valid ratifiers, the people themselves, the “conventions” of the Seventh and the Fifth Articles.

This was the procedure they had followed, when there was no constitutional mode of procedure provided. And so, with the extraordinary wisdom that characterized everything they did, that Philadelphia Convention wrote exactly the same procedure into the Fifth Article so that never again there might be lacking in America a constitutional mode of procedure for the evoking and the exercise of the only power that is ever exercised when constitutional Articles are made, the power of making them. As the Philadelphia Convention ended its existence with its own proposals, some new body had to do that work, when any new Article was to be proposed. As the work of the Philadelphia Convention had not been the exercise of any power but merely the work of proposing, it was a certainty that the new constitutional mode, exactly the same mode as that of Philadelphia, would also be the exercise of no power. And so, the Philadelphia Convention named the Congress (or a convention demanded by the state legislatures) to do the work of the Philadelphia Convention in drafting and proposing any new Article, and it named the Congress to perform the duty of ascertaining (by the nature of the new drafted Article) which of the two makers could make it, and then to propose a mode of ratification by which it would be validly ratified by such competent maker. As to the only powers ever to be exercised in the making of any new Article, the power of legislatures to make federal Articles, and the exclusive power of the people or “conventions” to make national Articles, the constitutional mode of procedure did not (nor could it, if Americans were not to become “subjects”) give the governments any of the exclusive ability of the people or “conventions,” and it did not (nor could it, if America were to be a republic) alter the existing ability of the majority of the American people to make their governments what they will. But, for the very practical purpose which Madison so clearly explained, the purpose of providing some check upon the tyranny of the majority or an aggressive minority over the individual rights of all Americans, the Fifth Article procedure could and did fail to provide any CONSTITUTIONAL method in which government power to interfere with individual liberty, as all surrendered power of that kind was distributed between different governments in the Constitution, could be changed in any way or transferred from one government to another, unless the “conventions” of the American citizens in three fourths of the states said “Yes” to any proposed change or transfer.

The Philadelphia Convention having proposed this particular check upon the existing ability of the people themselves to oppress individual liberty, a check which makes the words “by conventions in three fourths thereof” by far the most important words, the Fifth Article goes on to prescribe exactly the same check on the exercise of the ability of the state legislatures to make federal Articles.

That the Fifth Article, a constitutional mode of procedure for the exercise of two different existing abilities, was not a grant of any power to the state legislative governments is something that was known to every man in the conventions which made that Fifth Article.

In the Pennsylvania convention, Wilson plainly stated the knowledge of all that the supreme power “resides in the people, as the fountain of government; that the people have not—that the people meant not—and that the people ought not—to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.... My position is, sir, that, in this country, the supreme, absolute, and uncontrollable power resides in the people at large.” (2 Ell. Deb. 456 et seq.)