When more than half a century had passed, the same thing was known to those who knew American Constitutional Law.
“It is obviously impossible for the whole people to meet, prepare and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, [ergo, no permanent state governments or legislatures] can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people—WHO ALONE ARE COMPETENT TO EXERCISE THE POWERS OF SOVEREIGNTY IN FRAMING THE FUNDAMENTAL LAW—for ratification or rejection.”
So spoke the great Cooley in reference to making changes in national constitutions in his work on Constitutional Limitations (7th ed., 1903, at p. 61).
When one hundred and seventeen years had passed since the conventions in which we just sat, the same thing was known in the Supreme Court, in 1907.
The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them. (Justice Brewer in Turner v. Williams, 194 U. S. 279.)
CHAPTER XIV
SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM
“For my own part, I acknowledge a thorough conviction that 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.)
This was the statement of Hamilton to the American people when he was asking them, about to assemble in their conventions, to make their First Article grants of enumerated powers to interfere with their individual freedom and to make their Fifth Article mode of procedure, in which they could exercise CONSTITUTIONALLY their exclusive ability, assembled again in “conventions,” to add or subtract from that grant of enumerated powers of that kind.
When he used the words, “mass of its powers,” he referred directly to that First Article grant. It contains all the powers that were ever given to any government to interfere with the individual freedom of the American citizen. He knew what the Supreme Court clearly declared in United States v. Cruikshank, 92 U. S. 542, that, beyond the scope of its enumerated powers, there is no government of the American citizens. He knew that, in the geographical territory which is each state, there would thereafter be two governments, the government of enumerated powers, governing the American citizens in that state under the First Article grants from the American citizens, and the state governments, governing the citizens of the state, under whatever grants of national power its state citizens gave that government.
The two governments in each state stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments. (Justice Field, in Tarble’s case, in the Supreme Court, 13 Wall. 397.)