In the brief of this champion, we find no pretense that there is any support for this weird claim. On the contrary we find the whole claim depending entirely upon the sheer assumption—asserted as if to state it was to state an axiom—that the Fifth Article is a “grant,” wherein the “conventions” grant to the grantors and to the state governments ability to exercise omnipotence over the American citizens, ability to interfere with their individual freedom, in any matter whatsoever.
In his brief, Hughes emphatically asserts the truth that “the people never become a legislature.” Yet, the basis of his whole argument is that what “the people” of the Tenth Amendment expressly reserved to themselves may be given away by the “legislatures” of the states, although the “states” are an entirely different reservee in the Tenth Amendment. He does not know, what all knew when the Fifth Article was made, that the “conventions,” who made it and who are named in it, meant “the people” themselves. He does not know the tribute of Madison, in the Virginia convention which ratified the Fifth Article, to the American “conventions” in which the people themselves directly constituted new government of men; “Mr. Chairman: Nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” (3 Ell. Deb. p. 616.)
Hughes does not know, as Story did, that the drafter and the makers of the Fifth Article put into it the lessons of their own experience in the making of national Articles, by the “conventions” of 1776, and in the making of federal Articles by the state “legislatures” between 1777 and 1781. “It is wise, therefore, in every government, and especially in a Republic, to provide means for altering and improving the fabric of government as time and experience or the new phases of human affairs may render proper to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation and caution; and to follow experience, rather than to open a way for experiment suggested by mere speculation or theory.” (2 Story on the Constitution, Sec. 1827.)
For all of which reasons, Hughes and his associates, although they might be certain that the people never became the legislature, were not aware that, to the Americans who made the Fifth Article, its “conventions” were “the people” of the Tenth Amendment.
Naturally, we are not surprised to find a briefer who ignores this fact, possibly the legal fact in America most important to individual liberty, also indulging in the monumental error of the thought that these “conventions,” in their Fifth Article, made a grant, to themselves and to his clients, of equal omnipotence over themselves, the citizens of America. We recognize that, if the Article was such a grant to his clients, the grant would have been the greatest grant ever made in the history of mankind. We recognize that it would have been a grant by three million free men, four years after the war by which they had become free men, surrendering to governments absolute control of every individual liberty and making themselves absolute “subjects.”
We know that Hughes did maintain that the one government created by or given any power in the Constitution, in which is the Fifth Article, had not power to forbid a candidate for Senator to do what he did. It is interesting and instructive to know that the same lawyer holds, as an axiom which needs no proof, that the same Constitution gave unlimited ability to his client governments to interfere with every individual liberty of the Americans who are not candidates for a Senatorship.
We have the word of the man who wrote the language of that Fifth Article that it is merely “a mode of procedure” in which may be exercised either the existing unlimited ability of ourselves in “conventions” or the limited ability of the state governments to make federal Articles. We recognize, no one who reads it could recognize otherwise, that the Fifth Article, outside of two exceptions to CONSTITUTIONAL exercise of existing abilities to make Articles, contains nothing but procedural provisions. This knowledge we brought to the reading of the Hughes brief, after we had acquired the certainty in our education with the Americans who made the Fifth Article. Then we read this brief of the champion of champions for the validity of the supposed new Article and found therein the sheer assumption, as an axiom which needed no proof, that the Fifth Article, with nothing but its procedural provisions, was a grant of omnipotence to his government clients over ourselves!
Imagine, therefore, our amazement and our amusement, in the same brief, to find this clear echo of the statement of Madison and of our own knowledge, this accurate and complete statement of exactly what the Fifth Article contains: “Article V, apart from procedural provisions, contains two limitations of the power to amend, as follows: ‘Provided that no Amendment which may be made prior, etc.’”
If, “apart from procedural provisions,” the Article has nothing but “two limitations” of existing abilities to make Articles, where does he or anyone find in it the greatest “grant” known to the history of mankind?
When this briefer made his argument for his client who had been a candidate for Senator, he had no attack to make upon the procedure in which Congress had passed the Corrupt Practices Act. When he went to ascertain whether Congress had the power to make that command, about “elections,” he did not look for the power in any “procedural provisions,” which prescribe how Congress should exercise its ability to make commands.