Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Outside the language of the Fifth Article itself, many other things
make that fact clear to us. For instance, we recall what Madison has
just told us. He had written this Article at Philadelphia. Then,
asking the American people to prescribe this _constitutional_ mode
of procedure for the future exercise of either respective existing
ability, he has explained to us, just before the convention in which we
sit, what the Fifth Article means.
“That useful alterations will be suggested by experience, could not but
be foreseen. It was requisite, therefore, that A MODE FOR INTRODUCING
THEM should be provided. The mode preferred by the Convention seems to
be stamped with every mark of propriety. It guards equally against
that extreme facility, which would render the Constitution too mutable;
and that extreme difficulty, which might perpetuate its discovered
faults. It, moreover, equally enables the general and State governments
TO ORIGINATE the amendment of errors, as they may be pointed out by the
experience on one side, or on the other.” (_Fed._ No. 43.).
Sitting in the conventions of more than a century ago, we are naturally
uninfluenced (in our reading of plain English) by the story of a
century which has not even yet begun, the century that later began in
1800. And so we get from his own words the knowledge that the author
of the Fifth Article knew it to be nothing but a _constitutional_
mode of procedure, for the future exercise of either ability to make
Articles. We see that the mode _leaves_ with either “the general and
state governments” the ability to _propose_ an Amendment to those
with existing power to make the particular proposed Amendment. And we
note, with intent to remember, that the author of the Fifth Article,
while he tells us about this reservation of existing abilities to
_propose_ amendments, pointedly does _not_ tell us that the Article
_grants_ any power to any government or governments to _make_
Amendments. In other words, we know that the Fifth Article _reserves_
to the general government and to the state governments exclusively
what _otherwise_ they and every one else would have had--what Madison
himself called “the unauthorized privilege of any respectable citizen
or body of citizens”--the ability _to propose_, but that it does not
_grant_ to any of those governments or all of them collectively the
ability which none of them ever had or can have, the ability _to
make_, constitutional Articles of a _national_ kind, which relate to
interference with individual freedom. With this knowledge confirmed
by the clear statement of the author of the Fifth Article, we read
with interest its procedural provisions about the originating of new
Articles, about their drafting and their proposal and the proposal of a
mode of ratification for them, after they have been drafted and their
nature has determined who can make them.
Public-domain text, read in full here on John Shaqi.
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