Chapter VI: The Conventions Give the Consent

The proposal which came from Philadelphia in 1787 was absolutely without precedent in history. Simply stated it was that, outside of all written law save the Statute of ’76, the entire American people, who were not one nation or its citizens, should make themselves one nation and the supreme nation in America; that, simultaneously with the birth of this new nation, they should destroy the complete independence of each existing society or nation, in some one of which each American was a member or citizen, but keep alive each such society or former nation, subject to the supreme will of the citizens of the new nation; that they should keep alive the federation of those old nations also subject to the supreme will of the citizens of the new nation; that they should leave with each former nation (now to be a subordinate state) and to its citizens much of its own and their own national power to govern themselves on many matters without interference from any government or governments outside of that state; that they should leave with those continuing states and _their_ governments their existing and limited ability to give _federal_ power to government by making _federal_ Articles in the Constitution of _federal_ government; that they should, as the citizens of America, give to no state or states or _their_ respective governments any new power of any kind, leaving to the citizens of each state to determine (within the limits fixed by the Constitution of the American citizens) how much power its own national government should have to interfere with the individual freedom of its own citizens; that--most unique and marvelous conception of all--these citizens of America, simultaneously with the birth of the new nation and in their capacity as its citizens, should grant to its government, the only government of those citizens of America, definite and enumerated _national_ powers to interfere with their individual freedom; and that--probably the most important and the least remembered feature of the whole proposal--all other possible national powers over themselves, as citizens of America, should be reserved exclusively to themselves and be exercised or granted by them alone, “in the only manner in which they can act safely, _effectively_, and wisely, _on such a subject_, by assembling in Convention.” (Marshall, in the Supreme Court, M’Culloch v. Maryland, 4 _Wheat._ 316.)

We have not forgotten that these Americans, to whom that proposal was made, did act upon it in that only _effective_ way, by assembling in their conventions.

To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, _and of deriving its powers directly from them_, was felt and acknowledged by all. The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. _Its powers are granted by them_, and are to be exercised directly on them, and for their benefit. (Marshall, M’Culloch v. Maryland, 4 _Wheat._ 316.)

In view of the startling fact that _our_ leaders and “constitutional” lawyers have neither felt nor acknowledged the necessity that _new_ national powers of that government, new powers to interfere directly with the individual freedom of _its_ citizens, must be derived “directly” from those citizens, in the only effective way in which they can act, on such a subject, by assembling in their conventions, it is the duty of ourselves, the average American citizens of this generation, to insist that _they_ learn this legal fact. When _they_ shall have learned what all Americans once knew, the freedom of the American individual will be as secure as it was in 1790. No legislature, no matter whence comes a suggestion to the contrary, will dare to issue any command except to its own citizens, and only to them in matters on which those citizens have granted power to that legislature to command them.

That we may intelligently so insist, and that our insistence may be made in the proper place and at the proper time, let us briefly consider on what subjects, in the making of our Constitution, our predecessors, as American citizens, granted their enumerated national powers to our only government of all Americans. Like those predecessors, assembled in their conventions, we find all those enumerated powers in the First Article of the Constitution proposed from Philadelphia.

In substance they are the war power; the power of making treaties; the power of regulating commerce between ourselves and all people outside of America and between the citizens of the different states; the power of taxation; and all other incidental and supplementary powers necessary to make laws in the execution of these enumerated and granted powers.

Noticeably absent from these enumerated powers granted to the only general government of the citizens of America is that power, then existing and still in the national government of each nation or state, known (rather inaccurately) as the police power or the power to pass any law, in restraint of individual human freedom, reasonably designed, _in the judgment of that particular legislature_, to promote the general welfare of its own citizens. It seems hardly necessary, at this moment, to refer to the innumerable decisions of the Supreme Court that such power was not among those enumerated and granted to the American government by _its_ citizens. It was solely because such power had definitely not been granted by them to it that _the_ government of the American citizens made its famous proposal that a portion of such power, in relation to one subject, be granted to it in the supposed Eighteenth Amendment of our Constitution.

As a matter of fact, the police power of any government is really all its power to pass any laws which interfere with the exercise of individual freedom. In that respect, the American people made a marked distinction between the quantum _of that kind_ of power which they _granted_ to their one general national government and the quantum they _left_ in the national government of the citizens of each state. The quantum they granted to their own government was definitely enumerated in the First Article. On the other hand, except for the limitations which they themselves imposed upon the respective governments of each state, they left the citizens of each state to determine what quantum the government of that state should have.

In other words, the police power of the American Congress is strictly limited to the enumerated powers _of that kind_ granted by the citizens of America. And, although the fact does not seem to be generally known, it is _because_ the First Article vests in the sole Legislature of the whole American people nothing but _enumerated_ powers to interfere with the freedom of the individual American that our American government has received its universal tribute as a government of nothing but enumerated powers over a free people, who are its citizens.

In the Constitution are provisions in separate Articles for the three great departments of government,--legislative, executive, and judicial. But there is this significant difference in the grants of powers to these departments: the First Article, treating of legislative powers, does not make a general grant of legislative power. It reads: “Article one, section one. All legislative powers herein granted shall be vested in a Congress,” etc.; and then, in Article 8, mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers. (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206 _U. S._ 46.)

Among the _national_ powers, which _are_ enumerated in the First Article, there is one which (_whenever operative_) approximates the extensive police power of a state government to interfere with the freedom of its citizens. That is the war power of the Government of America. As the purpose of the Constitution of the American Government is to protect the freedom of the American and as such freedom needs effective protection from foreign attack, the Americans of that earlier generation made the war power of their government almost as unlimited as that of a despotic government. All history and their own human experience had taught them that the war power, if it was to be effective for their protection, must be practically unlimited. If we grasp this extent of the _American_ war power, we realize why our sole American government, without the grant of a new _national_ power to it, could validly enact what we know as the War Time Prohibition Statute, although without such a new grant, it was powerless to enact what we know as the Volstead Act or National Prohibition for time of peace. It is because the citizens of each state, in _their_ Constitution of _their_ national government, had given to it a general (although specifically limited) ability to interfere with their own human freedom in most matters, that each state government could validly make prohibition laws for its own citizens. It is because the _American_ citizens had not given to _their_ government any such general ability to interfere with _their_ freedom, that the _American_ Government, for any time except that of war, could not validly enact National Prohibition for the American people without a new grant of a new _national_ power directly from its own citizens. In the days of those earlier Americans, the _legal_ necessity of deriving _such_ power _directly_ from the _American_ citizens themselves was “felt and acknowledged by all.” In our day, among our leaders and our “constitutional” lawyers, there was none so humble as to know or honor this basic legal necessity.

The other enumerated _national_ powers, which American citizens _ever_ gave their national government, are few in number, although they vested a vast and necessary ability in that government to protect the freedom of its citizens and promote their happiness and welfare by laws in certain matters. For our present purpose, they need only be mentioned. They require no present explanation. They are the power to make all treaties with foreign nations or governments; the power to regulate commerce, except the commerce within any one particular state; and the power of taxation.

Having now some accurate conception of the limited and specific quantum of _national_ power which American citizens consented to grant in those earlier days, it is pertinent to our inquiry, as to whether we (their posterity) have again become subjects, to dwell briefly upon the reluctance with which they made even those grants. In considering that attitude, it is essential always to keep in mind the status of the citizens of each state, at that time, and their relation to their own _national_ government and the relation of each state to the _federal_ government of all the states. Under the existing system of governments, the citizens of each state were subject to no valid interference whatever with their own individual freedom except by laws of a legislature, _every_ member of which they themselves elected and to which they themselves granted every power of _such_ interference which that legislature could validly exercise. To those free men in those free states, men educated in the knowledge of what is real republican self-government, these two facts meant the utmost security of their human rights. No government or governments in the world, except their own one state government could interfere at all directly with those rights, and they _had given to_, and they could take from, that government _any_ power of that kind. As for the respective states and the relation of each to the federal government of all, each state had an _equal_ voice in the giving to or taking from that government any _federal_ power and each had an equal voice, in the _federal_ legislature, in exercising each valid _federal_ power. These existing facts, respectively of vast importance to the citizens of each state and to its government, influenced, more than any other facts, the framing of the new Articles, particularly the First Article, at Philadelphia and the opposition to those Articles in the conventions in which the people of America assembled.

The First Article, as we know it, starts with the explicit statement that all _national_ powers, which are granted by Americans in that Constitution, are granted _to_ the only _American_ legislature, Congress. It then provides how the members of each of the two bodies in that legislature shall be elected. It then enumerates the granted powers, confining them to specific subjects of interference with the human freedom of the American citizen. It then, for the particular security of that human freedom, imposes specific restraints upon that legislature even in the exercise of its granted national powers. Finally, it prohibits the further exercise of specific powers by any state government.

No American, who reads the debates of the Philadelphia Convention of 1787, can fail to realize that the grant of any _national_ power,--power to interfere with human freedom--_is_ the constitution of government. The First Article was the subject of almost all the discussion of those four months at Philadelphia. Seemingly invincible differences of desire and opinion, as to who should elect and the proportion (for citizens of the new nation and for states of the continuing federation) in which there should be elected the members of the legislature which was to exercise the granted _national_ powers, almost ended the effort of that Convention. This was in the early part of July. For exhausting days patriotic men had struggled to reconcile the conflict of desire and opinion in that respect. One element, mainly from the larger states, insisted that the members (from each state) of both branches of the new legislature should be proportioned to the number of Americans in that state. The other element, mainly from the smaller states, insisted that the Americans in each state should have an equal representation in each branch of the new legislature. Each element was further divided as to who should choose the members of that legislature. Some held that the people should choose every member. Others held that the state legislatures should choose every member. Still others held that each state should, by its legislature, choose the members of one branch, so that those members might speak for that state, and that the American people themselves, divided into districts, should choose the members of the other branch, so that those members might speak for the general citizens of America.

Mason of Virginia, later one of the great opponents of the adoption of all the Articles, insisted that election by the people was “the only security for the rights of the people.” (5 _Ell. Deb._ 223.)

Madison “considered an election of one branch, at least of the legislature by the people immediately, as a clear principle of free government.” (5 _Ell. Deb._ 161.)

Wilson of Pennsylvania “wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority.” (5 _Ell. Deb._ 160.) Later he said, “If we are to establish a _national_ government, that government ought to flow from the people at large. If one branch of it should be chosen by the legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them.” (5 _Ell. Deb._ 167.)

Dickenson of Delaware “considered it _essential_ that one branch of the legislature should be drawn immediately from the people, and _expedient_ that the other should be chosen by the legislatures of the states.” (5 _Ell. Deb._ 163.)

Gerry of Massachusetts, consistent Tory in his mental attitude toward the relation of government to people, insisted that “the commercial and moneyed interest would be more secure in the hands of the state legislatures than of the people at large. The former have more sense of character, and will be restrained by that from injustice.” (5 _Ell. Deb._ 169.)

On June 25, Wilson, at some length, opposed the election of senators by the state legislatures. He stated that: “He was opposed to an election by state legislatures. In explaining his reasons, it was necessary to observe the two-fold relation in which the people would stand--first, as citizens of the general government; and, secondly, as citizens of their particular state. The general government was meant for them in the first capacity; the state governments in the second. Both governments were derived from the people; both meant for the people; both therefore ought to be regulated on the same principles.... The general government is not an assemblage of states, but of individuals, for certain political purposes. It is not meant for the states, but for the individuals composing them; the _individuals_, therefore, not the _states_, ought to be represented in it.” (5 _Ell. Deb._ 239.)

There came a day, early in that memorable July, when all hope of continuing the Convention was almost abandoned, by reason of the difference of desire and opinion on this one subject. Let us average Americans of this generation remember that this one subject was merely the decision whether the people were to choose all the members of the legislature which was to exercise granted national powers to interfere with the human freedom of the citizens of America. Happily for all of us, there were many patriotic as well as able leaders at Philadelphia. From their patriotism and ability they evolved the compromise, on that question, which is expressed in their First Article. When it came from Philadelphia, it provided that each state should have equal representation in the Senate, senators to be chosen by the state legislatures, and that the House of Representatives should consist of members chosen directly by the citizens of America, in districts proportioned to the number of those citizens in it.

No one has read the recorded debates of the Convention which proposed and the conventions which adopted our Constitution without learning that the Americans in those conventions knew that the grant of enumerated _national_ powers in the First Article WAS the constitution of the _American_ government of men. In and out of the Philadelphia Convention, the greatest and most persistent attack upon its proposal was the insistent claim that it had acted wholly without authority in proposing an Article which purported to grant _any_ such _national_ power to interfere with the human freedom of all Americans. Since July 4, 1776, no legislature or legislatures in the world had possessed _any national_ powers over all Americans. The Americans in each existing nation elected every member of the one legislature which had any such power over them. It was felt and stated at Philadelphia, it was felt and urged and insisted upon, sometimes with decency and reason, sometimes with bitterness and rancor and hatred, between the closing day at Philadelphia and the assembling of various Americans in each state, that the Americans in each state would be unwilling to give _any_ such _national_ power over themselves to any legislature whose members were not all elected by the people in that state. In all the conventions which adopted the Constitution, the one great object of attack was the grant even of _enumerated_ powers of a _national_ kind to a legislature whose members would not all be chosen by the Americans in the state in which the convention was held. The record of the Virginia convention fills one entire volume of Elliot’s Debates. Almost one-half of the pages of that volume are claimed by the eloquent attacks of Patrick Henry upon those grants of enumerated powers in that First Article. The basis of all his argument was the fact that this grant of national power in the First Article would make him and all his fellow Virginians, for the first time since the Declaration of Independence, citizens of a nation--_not Virginia_--who must obey the laws of a legislature only some of whose members Virginians would elect.

“Suppose,” he says, “the people of Virginia should wish to alter” this new government which governs them. “Can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States. The founders of your own Constitution made your government changeable: but the power of changing it is gone from you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold those rights have right and power to keep them. It is not the particular government of Virginia: one of the leading features of that government is, that a majority can alter it, when necessary for the public good. This government is not a Virginian, but an American government.” (3 _Ell. Deb._ 55.)

How forceful and effective was this objection, we average Americans of this generation may well realize when we know that the Constitution was ratified in Virginia by the scant majority of ten votes. In New York and Massachusetts and other states, the adoption was secured by similar small majorities. In North Carolina, the first convention refused to adopt at all.

Furthermore, it is recorded history that, in Massachusetts, in Virginia, in New York, and elsewhere, the vote of the people would have been against the adoption of the Constitution, if a promise had not been made to them by the advocates of the Constitution. It was the historic promise that Congress, under the _mode of procedure_ prescribed in Article V, would propose new _declaratory_ Articles, suggested by the various conventions and specifically securing certain _reserved_ rights and powers of all Americans from all ability of _government_ to interfere therewith. This historic promise was fulfilled, when the first Congress of the new nation proposed the suggested declaratory Articles and ten of them were adopted. These are the Articles now known as the first ten Amendments. It has been settled beyond dispute, in the Supreme Court, that every one of the declarations in these ten Articles was already in the Constitution when it was originally adopted by the citizens of America.

The most important declaration in those amazingly important ten declarations, which secured the adoption of our Constitution, is the plain statement that every _national_ power to interfere with the human freedom of Americans, not granted in Article I, was reserved to the American people themselves in their capacity as the citizens of America. That is the explicit statement of what we know as the Tenth Amendment. In itself, that statement was but the plain and accurate echo of what was stated by the American people (who made the enumerated grants of such powers in Article I) in the conventions where they made those grants. Their statement was nowhere more accurately expressed, in that respect, than in the resolution of the Virginia Convention, which ratified the Constitution. That resolution began, “Whereas the powers granted under the proposed constitution are the gift of the PEOPLE, and every power NOT GRANTED thereby remains with THEM, and at THEIR will, etc.” (3 _Ell. Deb._ 653.)

After the same statement had been expressly made (with authoritative effect as part of the original Constitution) in that Article which we know as the Tenth Amendment, it was again and again echoed, in the plainest language, from the Bench of the Supreme Court.

As far back as 1795, in the case of Vanhorne’s Lessee vs. Dorrance, 2 _Dall._ 304, Justice Patterson stated that the Constitution of England is at the mercy of Parliament, but “in America, the case is widely different.”... A Constitution “is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand.... The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move.... Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature, repugnant to the Constitution, is absolutely void.”

To us average Americans, who have lived with those earlier Americans through the days in which they constituted their nation and distributed all _granted_ national powers between governments _in_ America and _reserved_ all other _general_ American national powers exclusively to themselves, the Virginia Resolution, the Tenth Amendment, and the quoted language of the Circuit Court are in strict conformity with the education _we_ have received.

What, however, are we to think of the Tory education of so many of _our_ leaders and “constitutional” lawyers, who have calmly accepted and acted upon the amazing assumption that state governments in America can exercise and can grant to other governments any or all _general_ national powers to interfere with the human freedom of American citizens, including even the national powers expressly reserved by those citizens to _themselves_ in the Tenth Amendment?

If they adopt their familiar mental attitude that all these statements were made more than a hundred years ago and have no meaning or weight now, we refer them to the Supreme Court, in 1907, when it stated:

The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to THE PEOPLE and can be exercised only by THEM, or UPON FURTHER grant from them. (Justice Brewer in Turner v. Williams, 194, _U. S._ 279.)

For ourselves, we average Americans turn now to examine in detail how clearly the Americans at Philadelphia in 1787 _did_ know and obey the basic law of America that all _national_ powers to interfere with individual freedom are the powers of the people themselves and can be exercised only by them or upon direct grant from them. We find their knowledge, in that respect, evidenced by an examination of the reasoning by which they reached the correct legal conclusion that their proposed grants of general national powers, in their First Article, could only be made by the citizens of America themselves, assembled in their “conventions”--that grants of _such_ powers could not be made even by all the legislatures of the then independent states.