Citizen or subject?

by Francis X. Hennessy

If there were no Fifth Article, could not Congress draft an Article and propose it and propose a mode of ratification? Philadelphia did all these things and knew and stated that it exercised no power in doing any of them. The mention of Congress implies no “grant.” On the contrary, it is a command which prevents the rest of us from making such proposals and prevents “conventions” or state “legislatures” from making Articles, within their respective abilities, unless proposed to them by “two thirds of both houses of Congress.”

If there were no Fifth Article, could not “conventions” make any kind of an article, as they had made the National Articles of 1776 and as they were making the Articles of 1787? The mention of “conventions” implies no grant. On the contrary, it is a command telling the “conventions” that a “Yes” from three fourths of the “conventions” shall be necessary and sufficient for “constitutional” exercise of the power they have. It is a great security for human freedom. It makes very difficult oppression of the people by the people.

If there were no Fifth Article, could not state “legislatures” make declaratory or federal Articles, which neither exercise nor create power to interfere with human individual freedom? They had, in 1781, made an entire constitution of Articles of that kind. The mention of “legislatures” implies no “grant.” On the contrary it is a command to these “legislatures,” representing the members of the union of states. The command comes from the superiors of the states, the “conventions” of the whole American people.

It is not the only command which the “conventions” of that one people made to the states and their “legislatures.” How absurd to imply from that command that it is a “grant” of power to those commanded governments, giving them omnipotence over every human freedom of the American people who made the command!

We know what Madison told the Americans in the “conventions,” when he asked them to make his Fifth Article. He told them that it was a “mode of procedure” in which either the general government or the state governments could originate, by proposal, the introduction of changes into the Constitution which is both national and federal. He pointedly did not tell those Americans that the Fifth Article is a “grant” of any ability to the state governments to make national Articles and he pointedly did not tell them that it is a “grant” of ability to anyone to make any Articles.

Why then was it necessary for the leading brief, in support of the Eighteenth Amendment, to add to Madison’s explanation of his own Fifth Article (the explanation that it was a “mode of procedure”) the absurd statement that it was a “grant” from the “conventions” to the “conventions” and the state legislatures of power to make Amendments? Why then was it necessary that this brief, speaking of the Fifth Article, should say: “The people thus ordained the mode of Amendment,” exactly what Madison said, “and in their own interest they established this power of Amendment”—exactly what Madison pointedly omitted to state to the Americans he asked to make the Fifth Article?

The answer is simple. Without adding to the Madison statement what he pointedly omitted to state, without stating the addition as axiomatic, Hughes could not even begin any argument for the Eighteenth Amendment.

The statement which Hughes adds to that of Madison is a statement which flatly contradicts everything we have heard in the “conventions.” It flatly contradicts everything the Americans did from 1775 on. It flatly contradicts the Tenth Amendment declaration that the Fifth Article gives no power whatever to the states or their governments. The added statement is sheer “nonsense,” assumed and asserted as axiomatic fact.

And, during the last five years, how has every argument against the Eighteenth Amendment met the “nonsense” of the assumption that the Fifth Article is a “grant?” In no way at all, except by assuming and asserting the same “nonsense,” and by then undertaking to prove another absurdity, namely, that the Fifth Article does not relate to the making of fundamental changes because the imaginary “grant” is limited in extent and does not include power to take away from the importance of the respective political entities which are the states.

Let no American citizen make any mistake as to this one fact. In no argument either for or against the Eighteenth Amendment has there been any challenge to the sheer assumption that the Fifth Article is a “grant” of ability to make changes in the Constitution which is both federal and national. On the contrary, in every argument, the foundation of everything asserted and urged is that very assumption.