Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Therefore, noting and remembering these significant facts, we turn
with interest to the short story of how those able Americans at
Philadelphia, their minds no longer exclusively concentrated on their
own enumerated grants, remembered that there was another maker of
Articles with _existing_ but limited ability to make _federal_ or
declaratory Articles. And, with interest, we shall learn how this last
week thought caused the Convention to change the Fifth Article by
adding a mention of that existing limited ability and prescribing the
mode of its future _constitutional_ exercise.
That we average Americans may never be misled by inaccurate statements
of the short story of how the mention of that limited ability was
added to the mention of the unlimited ability of the “people” or
“conventions” of the Fifth Article, it is fitting that the full record
of the story be given verbatim. It adds not a little to our amusement
that the story is copied from the brief of the leading “constitutional”
lawyer of 1920 who championed the validity of the Eighteenth Amendment
on the remarkable assumption and error, common to all his associates
and his opponents, that the new mention changed the Fifth Article into
a _grant_ of ability to those legislatures instead of what its author,
Madison, knew and stated that Article to be, a “mode of procedure” for
the future _constitutional_ exercise either of that existing limited
ability or the other existing unlimited ability of the “people” or
“conventions” of the Seventh and Fifth Articles. This is the record of
that September 10, as copied from that brief, beginning immediately
after Hamilton had voiced his opinion that there could be no danger in
letting Congress _propose_ an Amendment “as the _people_ would finally
decide in the case.”
“Mr. Madison remarked on the vagueness of the terms, ‘call a Convention
for the purpose’ as sufficient reason for reconsidering the Article.
How was a Convention to be formed? by what rule decide? what the force
of its acts?
“On the motion of Mr. Gerry to reconsider
“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay.
N. C. ay. S. C. ay. Geo. ay. (Ayes--9; noes--1; divided--1.)
“Mr. Sherman moved to add to the article ‘or the Legislature may
propose amendments to the several States for their approbation, but no
amendments shall be binding until consented to by the several States.’
“Mr. Gerry 2ded. the motion.
“Mr. Wilson moved to insert ‘two thirds of’ before the words ‘several
States’--on which amendment to the motion of Mr. Sherman
“N. H. ay. Mas. (no). Ct. no. N. J. (no). Pa. ay. Del. ay. Md. ay. Va.
ay. N. C. no. S. C. no. Geo. no. (Ayes--5; noes--6).
“Mr. Wilson then moved to insert ‘three fourths of’ before ‘the several
Sts.’ which was agreed to nem: con:
“Mr. Madison moved to postpone the consideration of the amended
proposition in order to take up the following,
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