Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Moreover, breathing the atmosphere of those first “conventions” of the
kind named in the Seventh _and the Fifth_ Articles, the “conventions”
where individual liberty of the American is the only object of advocate
and opponent of the Articles under consideration, we begin to sense
that the holders of the impossible assumption have never fully grasped
the amazing and vital distinction between “state legislatures” and
“conventions” of the kind named in the Seventh _and the Fifth_
Articles. When we shall hear the “constitutional thinkers” of 1917
and 1920 speak of the “legislatures” and the “conventions” as two
different agents given omnipotent attorneyship in fact over all the
individual rights of the citizens of America, we shall wonder if these
thinkers appreciate that the “state legislatures” are permanent bodies,
always existing, and that the “conventions” of the Fifth Article are,
to the “conventions” in which we sit, bodies that never would have
an existence until some future moment, when the American citizens
themselves would again be called to assemble in and thus make those
“conventions.” Nothing could show more clearly that the “conventions”
of the Seventh Article looked upon the “conventions” of the Fifth
Article, not as the donee of any power of attorney, but as themselves
or their posterity, the citizens of America, assembling again to
determine whether there shall be any change in the distribution of
power to interfere with their individual liberty. And our thought,
re-echoed again and again by Marshall and others from the Bench of the
Supreme Court in the century that follows the first assembling of these
“conventions,” seems but the repetition of what we hear said in the
Massachusetts Convention as the tribute of its Americans to the Fifth
Article.
On January 23, 1788, the Americans, assembled in Massachusetts, took up
the consideration of that Article. As in every convention, there had
been great opposition to the earlier Articles; as in every convention,
nearly all of it had been to the great national powers of the First
Article granted to the new government and taken from the state
governments; and, as in every convention, almost all of this opposition
had been the continued complaint that the state governments were being
destroyed.
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