Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Now, if Wilson and the other delegates at Philadelphia, on September
10, knew that to make a proposal was no exercise of power, they clearly
understood that Madison’s Fifth Article, when it stated that Congress
might _propose_ an Amendment and Congress might _propose_ a mode of
ratification, was an Article which purported to grant no power to
Congress. If we recall the truth, which Madison so often expressed,
that it is the privilege of any citizen or body of citizens to propose
that existing power be exercised, we realize that, if the Fifth Article
had not mentioned Congress as the maker of either proposal, Congress
would still have had full ability to make either or both proposals
at any time. As the delegates at Philadelphia knew this as well as
we now know it, as we have been helped to our appreciation of it by
them and their statements, it is apparent how instantly they knew
that the mention of Congress, as the _proposer_ of an Amendment and
as the _proposer_ of its mode of ratification, meant that Congress
_alone_ was to be left with--_not given_--the duty which they had
assumed themselves to perform at Philadelphia. That duty, as they knew
and we now know, was to draft a proposed Article and, after it had
been worded, to examine it and its nature and (with the validity of
their ultimate proposal absolutely determined by that nature) then to
propose the Article and a mode of ratification for it which would mean
ratification by those competent to ratify an Article of _its particular
kind_. In other words, they knew that, whenever Congress performed the
duty they had just performed themselves, after an Article had been
drafted, it would be legally necessary for Congress, as it had been for
them at Philadelphia, to consider the existing and different abilities
of the “people” or “conventions” and the state legislatures to make
Articles, and from that consideration to ascertain a competent ratifier
for the particular Article they had drafted and, the validity of the
ratification to depend entirely on the accuracy of their ascertainment
and not on their own proposal of ratification, to propose a mode of
ratification in which that Article would be made by those competent
to make it. With the meaning and effect of a “proposal” so clearly
known to them all, with their own immediate recent experience in the
performance of the very duty which Madison’s Fifth Article _left_
the duty of Congress in the future, it was a simple matter for these
delegates at Philadelphia to know exactly what was the only possible
meaning of Madison’s words, when the same “shall have been ratified by
three fourths at least of the legislatures of the several states, or
by conventions in three fourths thereof, as one or the other mode of
ratification may be proposed by the legislature of the U. S.”
Public-domain text, read in full here on John Shaqi.
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