Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Seventh and the Fifth Articles proposed by Philadelphia.
And so, when the Philadelphia Convention had drafted its Articles
and was about to propose them, it recognized the legal necessity of
ascertaining, from the nature of those Articles, whether they were in
the power of both or only of one of those existing makers of Articles.
In the ascertainment, with their minds on the First Article grants of
national power to interfere with individual liberty, they knew that
no governments in America could make an Article _of that kind_. Their
ascertainment was then ended and they knew that they _must_ propose
that mode of ratification which would send their Articles to the only
valid ratifiers, the people themselves, the “conventions” of the
Seventh and the Fifth Articles.
This was the procedure they had followed, when there was no
_constitutional_ mode of procedure provided. And so, with the
extraordinary wisdom that characterized everything they did, that
Philadelphia Convention wrote exactly the same procedure into the
Fifth Article so that never again there might be lacking in America a
_constitutional_ mode of procedure for the evoking and the exercise
of the only power that is ever exercised when constitutional Articles
are made, the power of making them. As the Philadelphia Convention
ended its existence with its own proposals, some new body had to do
that work, when any new Article was to be proposed. As the work of
the Philadelphia Convention had not been the exercise of any power
but merely the work of proposing, it was a certainty that the new
_constitutional_ mode, exactly the same mode as that of Philadelphia,
would also be the exercise of no power. And so, the Philadelphia
Convention named the Congress (or a convention demanded by the state
legislatures) to do the work of the Philadelphia Convention in drafting
and proposing any new Article, and it named the Congress to perform
the duty of ascertaining (by the nature of the new drafted Article)
_which_ of the two makers could make it, and then to propose a mode of
ratification by which it would be _validly_ ratified by such competent
maker. As to the only powers ever to be exercised in the making of any
new Article, the power of legislatures to make _federal_ Articles, and
the exclusive power of the people or “conventions” to make _national_
Articles, the _constitutional_ mode of procedure did not (nor could
it, if Americans were not to become “subjects”) give the governments
any of the exclusive ability of the people or “conventions,” and it
did not (nor could it, if America were to be a republic) alter the
existing ability of the majority of the American people to make their
governments what they will. But, for the very practical purpose which
Madison so clearly explained, the purpose of providing some check
upon the tyranny of the majority or an aggressive minority over the
individual rights of all Americans, the Fifth Article procedure could
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