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Philadelphia of 1787. As we have just lived through all that period with them, we are in a wonderful position to read it and understand it as they understood it. Moreover, we are in a wonderful position to listen to the statements of the men in those “conventions.” In those statements, whether by advocates or opponents of the Constitution, we shall find the invincible negation—without one dissent—of the absurd assumption that Madison’s Fifth Article is a “grant” of any ability to make Articles. In those statements, we shall find all discussion of that Fifth Article centering upon the one question, i.e., whether it provides a practical mode of procedure in which the exclusive ability of the “people” or “conventions” can defend individual rights by withdrawal of some part of the power of interference therewith granted in the First Article. Mason had pointed out at Philadelphia that the procedural provisions of the Fifth Article and it consists entirely of procedural provisions for the exercise of existing powers left the drafting and proposal of Amendments entirely to governments. For which reason, in the “conventions,” Henry and all the great opponents of the Constitution argued that, if the individual Americans found the granted national powers of the First Article dangerous to human liberty, the “people” or “conventions” would never get the constitutional opportunity to exercise their ability to withdraw.
“You”—the “you” being the individual Americans assembled in one convention—“therefore, by a natural and unavoidable implication, give up your rights to the general government.... If you give up these powers,” the enumerated powers of the First Article, “without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw—a government that has abandoned all its powers—the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights—without check, limitation, or control. And still you have checks and guards; still you keep barriers—pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless,” the state legislatures mentioned in the Fifth
Article, “and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?”
So thundered Henry in the Virginia convention. (3 Ell. Deb. 446.)
“To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut. Let us consider this plain, easy way.” Then follows the verbatim statement of the Madison Fifth Article as proposed from Philadelphia. “Hence it appears that three fourths of the states must ultimately agree to any amendments that may be necessary. Let us consider the consequence of this. However uncharitable it may appear, yet I must tell my opinion—that the most unworthy characters may get into power and prevent the introduction of amendments. Let us suppose—for the case is supposable, possible, and probable—that you happen to deal those powers to unworthy hands; will they relinquish powers already in their possession, or agree to amendments? Two thirds of the Congress, or of the state legislatures, are necessary even to propose amendments.... To suppose that so large a number as three fourths of the states will concur is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous. It would indeed be miraculous that they should concur in the same amendments, or even in such as would bear some likeness to one another; for four of the smallest states, that do not collectively contain one tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six tenths of the people may reject these amendments.... So that we may fairly and justly conclude that one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments. A trifling minority may reject the most salutary amendments. Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such.” (3 Ell. Deb. 48.)
So thundered Henry against the weakness of the Madison procedure in which only by proposal from governments could there be constitutionally evoked the exclusive ability of the citizens of America to dictate how much power to interfere with individual freedom should be left for the citizens of each state to use in governing themselves, and how much power of that kind should be retained by the individual people of America themselves. Henry was opposing a Constitution in which the individual people of America were dictating that their general government, the Congress, should have only the enumerated powers of that kind which are in the First Article. In it, they were dictating that each state government, except as the American people forbade it, should have just so much of that kind of power as the citizens of that particular state should grant that government. And in it, they were dictating that the people of America themselves, the most important factor and reservee of the Tenth Amendment, should retain all other power of that kind to be granted only by themselves, the “conventions” of the Madison Fifth Article. Throughout all his thunder against that Constitution, Henry, like every other opponent of that Constitution, never questioned that this was the exact distribution of power to interfere with individual freedom which was dictated in the Constitution. His only complaint, and their only complaint, was that the Madison Fifth Article, because its constitutional procedure could only be evoked by a proposal from governments, was no protection to human liberty against the granted power of that kind in the First Article. The absurd thought of our modern “constitutional” thinkers (contradicting the plain statement of the Tenth Amendment and contradicting everything that was said in the “conventions” that made the Fifth Article) is that the Article itself is a “grant” of omnipotent power to governments (the legislative governments of the states) to interfere with individual freedom. When we contrast the knowledge of Henry and his colleagues with the modern absurdity, we echo Henry’s words and exclaim, “We suppose that we are mad, or that our modern constitutional thinkers are so.” If Henry had read into that Fifth Article, if the opponents of the proposed Constitution had read into it, any “grant” of ability to state governments, certainly it was an absurdity for him to refer to
those governments as “weakened, prostrated, enervated” by the proposed Constitution.
And so, educated in the experience of those Americans who assembled in those “conventions” named in the Seventh and Fifth Articles, we sit with them in the conventions of that earlier day and read that Fifth Article with them, while they decide to make it with the six other Articles. Living through their experience, like them we have become “a people better acquainted with the science of government than any other people in the world,” so far as government is intended to secure individual liberty and happiness. When we sit with them, we intend not to forget, as they never did forget in those conventions, that this was the sole purpose of the Constitution they considered and made, the purpose of securing individual liberty and happiness. In this respect, they differed in their whole philosophy of government with the new school of thought that, in our day, has its different manifestations of exactly the same philosophy of government on the part of the Bolshevik in Russia and the minority in America which has dictated that government enactment of the new constitution of government, known as the Eighteenth Amendment.
The Americans of ’76 and ’87 set the individual liberty and freedom of man above everything in this world except the Divine Will of the Creator of man. In the Preamble of their Constitution, they echo the declarations of their Statute of ’76. Their creed was that the laws of right and wrong are immutable; that the Creator made the individual man and granted human freedom to him; that such freedom is inherently subject only to the Divine Will, the immutable law of right and wrong, but that it may voluntarily become subject, by the will of the individual man, to the exercise of powers of interference which only he and his fellow men themselves can ever validly grant to government.
“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control
the governed; and in the next place, oblige it to control itself.” (Madison or Hamilton, Fed. No. 51.)
When we sit in the conventions of 1787 and 1788 with the Americans who had this common concept of the only purpose of government of men, their concept is our own as we read with them the language of the Fifth Article. And it is impossible for us, as it is impossible for them, to find concealed in that language the thought of a “grant” to government, a “grant” which would challenge this concept of the very purpose of government. They are sitting in “conventions” assembled to determine whether American individuals will enter into the new society of men, which is to be America. They have received the Fifth Article from Americans in Philadelphia, who have accompanied the proposal of that Fifth Article with a letter which states, “Individuals entering into society must give up a share of liberty, to preserve the rest.” This statement is recognized by the Americans, in the “conventions” where we sit, as the exact statement of the concept of the sole purpose of a government of men. With that concept and that letter before us, how can we or the Americans with whom we sit find in the Fifth Article the remarkable idea that Americans, entering the society of America, are to give up all their liberties to the state governments in order that Americans may preserve the rest of their liberties?
In these modern days, however, there has asserted itself, in Bolshevik Russia and in the America of which we are the citizens, two distinct manifestations of an entirely different concept of the purpose of government than was the concept of the Americans in the “conventions.” Although the manifestation of the new concept by the Bolshevik in Russia has been different from the manifestation of the new concept by an aggressive and organized minority in America, the new concept, at the bottom of each manifestation, is exactly the same. It is the concept that the purpose of constituting a government of men is to secure the welfare of the state or community or nation and not the liberty and happiness of the individuals who compose the nation. This is the exact concept of the Bolshevik Russian and the Eighteenth Amendment American. To neither of them would the words of that letter from Philadelphia convey the slightest meaning,
