CHAPTER VIII. Philadelphia Answers “conventions, Not Legislatures”

PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES”

We recall how clearly the Americans at Philadelphia, in 1787, knew that any grant of national power to interfere with the freedom of individuals was the constitution of government. We recall the bitter conflict of opinion, threatening the destruction of the assembly, over the manner of choosing the members of the legislature to exercise whatever powers of that kind the citizens of America might grant. We recall the great opposition to the proposal of a grant of any power of that kind and to the particular proposal of each of the enumerated powers of that kind, all embodied in the First Article.

We have thus come to know with certainty that the minds of the Americans at Philadelphia, during those strenuous four months, were concentrated mainly upon a proposal to grant some national power to interfere with the human freedom of all Americans. In other words, we have their knowledge that their proposed First Article, by reason of its grants of such power, would constitute a new nation and government of men, if those grants were validly made by those competent to make such grants.

Under which circumstances, we realize that it became necessary for them to make a great legal decision, in the construction of basic American law, and, before making that decision, which was compelled to be the result of judgment and not of will, accurately to ascertain one important legal fact. Indeed, their decision was to be the actual conclusion reached in the effort to ascertain that legal fact. This was the single question to which they must find the right answer: “Under our basic American law, can legislatures ever give to government any power to interfere with the human freedom of men, or must every government in America obtain its only valid powers of that kind by direct grant from its own citizens?”

It is easy for us to state that they should have known that the answer to that question was expressly and authoritatively given in the Statute of ’76. It was there plainly enacted that every just power of any government must be derived from the direct grant of those to be governed by its exercise. Yet our own leaders for the last five years have not even asked the question, much less known the right answer.

At Philadelphia, in 1787, they did know it. They had no doubt whatever about it. We shall see that quickly in our brief review of the record they made at Philadelphia in ascertaining and deciding, as a legal necessity, to whom their First Article and its enumerated grants of national power must be sent and, when we boast of how quickly we knew the answer, we should admit that we did not know it until after we had lived again with them through their experience of the preceding ten or twelve years which had educated them, as it has just educated us, to that knowledge. Furthermore, many of us average Americans will be unable to explain, until later herein, why, during the last five years, our own leaders have not known the right answer. The Statute of ’76 has not been wholly unknown to them. The record of the Philadelphia Convention and the ratifying conventions has not been entirely a closed book to them. The important and authentic statements of Webster and other leaders of past generations have been read by many of them. If they did not understand and know the correct answer, as we now realize they have not known, let us not withhold from the Americans at Philadelphia our just tribute of gratitude that they did accurately know, when it was amazingly important to us that they should know.

When those Americans came to answer that question, there were facts which might have misled them as other similar facts of lesser importance have undoubtedly misled our leaders.

In 1776, from that same Philadelphia had gone a suggestion that a constitution of government, with Articles granting power to government, be made in each former colony. In 1787, there had gone from that same Philadelphia a proposal that a constitution of a general government for America be made, with Articles granting power to that government. The proposal of 1776 had suggested that the proposed Articles be made by the people themselves, assembled in conventions. The proposal of 1777 had suggested that the proposed Articles be made by the legislative governments of the states. Both proposals, even as to the makers of the respective Articles, had been acted upon. All the Articles, although some had been made by the people themselves and others by legislatures, had been generally recognized as valid law. Some of the men at Philadelphia in 1787 had been members of the proposing Second Continental Congress, when the respective proposals of 1776 and 1777 had gone from Philadelphia. When, in 1787, they were called upon to find and state, as their legal decision, the correct answer to their important question, it was necessary for them to ascertain, as between state “legislatures” and the people themselves, in “conventions,” which could validly make the Articles which had been worded and were about to be proposed. It would not, therefore, have been beyond the pale of our own experience if the earlier proposals had misled them and they had made the wrong answer to the question which confronted them. Furthermore, as we have already noted, although we can little realize the influence of such a fact upon men seeking the correct legal answer to an important question, their whole proposal was a new adventure for men on an uncharted sea of self-government. Under all of which circumstances, let us again pay them their deserved tribute that they went unerringly to the only correct answer.

We know that the essence of that answer is expressed in the Seventh Article proposed from Philadelphia. Only one answer was possible to Americans of that generation. They had been “subjects” and had become “citizens.” They knew the vital distinctions between the two relations to government.

The Convention which framed the Constitution was, indeed, elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with the request that it might “be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.” This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they [the American people] act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution [the First Article grants of power to interfere with individual freedom] derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people.... It required not the affirmance, and could not be negatived, by the state governments.... To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent.

But, when a general government of America was to be given any national power to interfere with the individual freedom of its citizens, as in the First Article of 1787 and in the Eighteenth Amendment of 1917,

acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. (Marshall in the Supreme Court, M’Culloch v. Maryland, 4 Wheat. 316.)

Marshall was one of the Americans who had been at Valley Forge in 1778, and at other places whose sacrifices made it the basic law of America that all power over American citizens must be derived by direct grant from themselves. Later, he was prominent in the Virginia convention where all Americans in Virginia knew and acted upon this basic law. These facts qualified him to testify, from the Bench of the Supreme Court, that all Americans then knew and acknowledged the binding command of that basic law.

Under such circumstances, it was impossible that the Americans at Philadelphia should not have known and obeyed that law in the drafting of their proposed Seventh and Fifth Articles. Both of these Articles, the Seventh wholly, and the Fifth partly, deal with the then future grant of national power over the people and its only legal gift by direct grant from the people themselves, assembled in their “conventions.” Both Articles name the people of America, by the one word “conventions.”

That Philadelphia should not have strayed from the legal road clearly marked by the Statute of ’76 was certain when we recall how large a part Madison played at Philadelphia, and particularly how he personally worded and introduced, in the closing hours at Philadelphia, what we know as its Fifth Article. As to his personal knowledge of this basic law, we recall his letter of April, 1787, where he said, “To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the legislatures.” And we recall his later words, when urging Americans to adopt the Constitution with its Fifth and Seventh Articles, he said of the Seventh, “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution,” to its grants of power over the people in its First Article. (Fed. No. 43.)

That we may fix firmly in our own minds the knowledge which all Americans then had, which our leaders never acquired or have entirely forgotten, let us briefly review what the earlier Americans did at Philadelphia in obedience to that knowledge of basic American law.

On May 28, Randolph of Virginia “opened the main business” of the Convention. He proposed fifteen resolutions embodying the suggestion of what should be in the different Articles. Resolution Number 15 was that such Articles should be submitted to “conventions,” “to be expressly chosen by the people, to consider and decide thereon.” (5 Ell. Deb. 128.)

The first short debate on this Resolution took place on June 5. In it Madison stated that he “thought this provision essential. The Articles of Confederation themselves were defective in this respect, resting, in many of the states, on the legislative sanction only.” The resolution was then postponed for further consideration. On June 12, “The question was taken on the 15th Resolution, to wit, referring the new system to the people of the United States for ratification. It passed in the affirmative.” (5 Ell. Deb. 183.) This was all in the Committee of the Whole.

On June 13, that Committee made their full report, in which the Randolph Resolution Number 15 was embodied in words as Resolution Number 19 of the report. On June 16, while the Convention was again sitting as a Committee of the Whole, the great struggle was on between the conflicting opinions as to how and in what proportion should be elected the future legislators who were to exercise the granted powers over Americans. On that day, the discussion centered on the relative merits of the Randolph national proposals and a set of federal Articles amending the existing Federal Constitution. In supporting Randolph, Wilson of Pennsylvania stated that “he did not fear that the people would not follow us into a national government; and it will be a further recommendation of Mr. Randolph’s plan that it is to be submitted to them, and not to the legislatures, for ratification.” (5 Ell. Deb. 196.)

On July 23, Resolution Number 19 came up for action. Remembering how insistent many of the delegates were that the general government should be kept a purely federal one, it is not surprising to find Oliver Ellsworth of Connecticut opening the short debate with a motion that the Constitution “be referred to the legislatures of the states for ratification.” But it will also be remembered that the powers to be granted in the new Articles had not yet been settled. The nationalists in the Convention, intent on having some national Articles, knew that the proposed ratification must be by the people themselves, “felt and acknowledged by all” to be the only competent grantors of national powers.

Colonel Mason of Virginia “considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. They are the mere creatures of the state constitutions, and cannot be greater than their creators.... Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment that this doctrine should be cherished, as the basis of free government.” (5 Ell. Deb. 352.)

Rufus King of Massachusetts, influenced undoubtedly by the error of thinking that the Convention meant to act within the Articles of Confederation, was inclined to agree with Ellsworth “that the legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people.... At the same time, he preferred a reference to the authority of the people, expressly delegated to conventions, as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution.” (5 Ell. Deb. 355.)

Madison “thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the state constitutions; and it would be a novel and dangerous doctrine, that a legislature could change the constitution under which it held its existence.” (5 Ell. Deb. 355.)

Ellsworth’s motion to send to the state legislative governments, and not to the people themselves, assembled in “conventions,” was lost by a vote of seven to three. Resolution Number 19, that the new Articles must be sent to the people themselves was adopted by a vote of nine to one, Ellsworth and King both voting for it. (5 Ell. Deb. 356.)

This impressive discussion, now continued for over a month of 1787, with its display of accurate knowledge of the distinction between sending Articles to legislatures and “referring” them to the people, makes quite amusing what we shall hear later in 1917. It will come from the counsel of the political organization which dictated that governments should make the supposed Eighteenth Amendment. After he kindly tells us that history has proven that these Americans of 1787 “builded more wisely than they knew,” meaning “than he knew,” he shall later impart to us the remarkable information that “the framers in the Constitutional Convention knew very little, if anything, about referendums.”

The Resolutions, which had now become twenty-three in number, on July 26, were referred to the Committee of Detail to prepare Articles in conformity therewith. On August 6, that Committee made its report of twenty-three worded Articles. In Article XXII was embodied the requirement that the Constitution should be submitted “to a convention chosen in each state, under the recommendation of its legislature, in order to receive the ratification of such convention.” This provision, the Philadelphia answer and always the only legal answer to the question as to who can validly grant power to interfere with individual freedom, was later seen not properly to belong in the Constitution itself. For which reason, it was taken out of the Constitution and embodied in a separate Resolution which went with the Constitution from Philadelphia.

In Article XXI, the first draft of our Article VII, it was provided: “The ratification of the conventions of ---- states shall be sufficient for organizing this Constitution.” (5 Ell. Deb. 381.)

The month of August was passed in the great debates on the proposed grants of national power and the other proposed Articles. When the Convention was drawing to a close on August 30, Articles XXI and XXII were reached.

Gouverneur Morris of Pennsylvania “moved to strike out of Article XXI the words, ‘conventions of the,’ after ‘ratification,’ leaving the states to pursue their own modes of ratification.” Rufus King “thought that striking out ‘conventions,’ as the requisite mode, was equivalent to giving up the business altogether.” Madison pointed out that, “The people were, in fact, the fountain of all power.” The motion of Morris was beaten. An attempt was made to fill the blank in Article XXI with the word “thirteen.” “All the states were ‘No’ except Maryland.” The blank was then filled by the word “nine” the vote being eight to three. The two articles were then passed, the vote thereon being ten to one. (5 Ell. Deb. 499-502.)

On September 10, the beginning of the last business week of the Convention, Gerry of Massachusetts moved to reconsider these two Articles. The short discussion was not in connection with any matter in which we are now interested. His motion was lost. The entire set of worded Articles was then referred to a committee for revising the style and arrangement of the Articles agreed upon. (5 Ell. Deb. 535.)

On Wednesday, September 12, that Committee reported our Constitution, with its seven Articles, as we know them except for some slight changes made during the discussions of the last three or four days of the Convention. In these seven Articles, the language of the earlier Article XXII did not appear. As it really was the statement of the correct legal conclusion of the Convention that its proposed Articles, because they would grant power to interfere with individual freedom, must necessarily be made by the people themselves, its proper place was outside the Constitution itself and in a special Resolution of the same nature as every Congress resolution proposing an amendment to that Constitution. That was the view of the Committee and, on Thursday, September 13, the Committee reported such special Resolutions, in the very words of the former Article XXII. “The proceedings on these Resolutions are not given by Mr. Madison, nor in the Journal of the Federal Convention. In the Journal of Congress, September 28, 1787,