Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Could anything be more vitally important to individual liberty than
that just such “conventions,” so chosen, not the state legislatures,
each elected by the citizens of its own state _for an entirely
different purpose_, should continue to have their exclusive ability to
determine _how much_ power to interfere with individual freedom shall
be surrendered by the American people, and how the quantum (which _is_
surrendered) shall be apportioned for exercise between the one American
government and the respective states and their respective legislative
governments? Later herein we shall learn how clearly Madison and
Hamilton, responsible for the wording and meaning of the Fifth
Article, knew and appreciated the practical and amazing importance as
security to individual liberty, in this distinction between the _two_
makers (“conventions” of the American people themselves and state
“legislatures”) named in their Fifth Article and in the distinction
between their respective and _existing_ abilities to make Articles in
a Constitution which is both a _federal_ and _national_ Constitution.
And, as we know, as the Supreme Court has declared in the voice of the
Marshall who sits with us in that Virginia convention, the knowledge
and appreciation was not peculiar to Madison and Hamilton. It was the
common knowledge and appreciation of all the Americans who _made_ the
Fifth Article in those conventions. “To the formation of a league,
such as was the Confederation, the state sovereignties were certainly
competent”; but when a grant of enumerated power to interfere with
individual freedom was asked, “the legal necessity of referring it to
the people and of deriving its powers directly from them was felt and
acknowledged by all.” When such a grant is asked, whether it be asked
in the shape of the First Article or of the Eighteenth Amendment, it
is not referred to the people at all, unless it is sent to them to be
considered and discussed _before_ they choose, from among themselves,
those of themselves who will assemble in the “conventions” for the one
and sole purpose of uttering the carefully weighed “Yes” or “No” of
the Americans in the state where the particular convention assembles.
As all in those early conventions knew, as Marshall declared from the
Supreme Court, _that_ assembling in those “conventions” is the only way
in which the American people can act “safely, effectively and wisely”
when asked for a grant of power to interfere with individual freedom,
and, as the Statute of ’76 and good sense and practical experience
alike teach all free men, that is the only way in which any just power
of government can be derived “directly” from the citizens upon whom it
is to be exercised.
Public-domain text, read in full here on John Shaqi.
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