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BRIEF CONTENTS
Prefacexix

Chapter 1 INTRODUCTION: UNDERSTANDING

WORLD RELIGIONS IN GLOBAL PERSPECTIVE3

Chapter 2 INDIGENOUS RELIGIONS35

Chapter 3 THE MANY STORIES OF JUDAISM:

SACRED AND SECULAR67

Chapter 4 CHRISTIAN DIVERSITY AND THE ROAD

TO MODERNITY125

Chapter 5 ISLAM: THE MANY FACES OF THE

MUSLIM EXPERIENCE183

Chapter 6 HINDUISM, JAINISM, AND SIKHISM:

SOUTH ASIAN RELIGIONS261

Chapter 7 BUDDHISM: PATHS TOWARD NIRVANA337

Chapter 8 EAST ASIAN RELIGIONS: CONFUCIANISM,

DAOISM, SHINTO, BUDDHISM413

Chapter 9 GLOBALIZATION: FROM NEW TO

NEW AGE RELIGIONS487

GlossaryG-1

Art CreditsA-1

IndexI-1

vii
CONTENTS
Prefacexix

Chapter 1 INTRODUCTION: UNDERSTANDING WORLD

RELIGIONS IN GLOBAL PERSPECTIVE3

Why Study World Religions? 4

Our Task 7
Understanding Religious Experience and Its Formative Elements 8
The Sacred 9
Myth, Scripture, and Beliefs 10
Ritual 13
Community and Morality 14
Religious Leaders/Experts 15
The Great Religious Stories of the World 16
Myths of Nature 16
China and the Myths of Harmony 16
India and the Myths of Liberation 18
The Middle East and the Myths of History 19
Religious Diversity and Historical Change: The Structure of This Book 20
Historical Overview: From Premodern to Postmodern 23
The Modern/Postmodern Transition: Colonialism, Socialism,
and the End of Modernity 27
Postmodern Trends in a Postcolonial World 30
Conclusion: We Are All Heretics in Our Postmodern Situation 31
Discussion Questions 32 • Key Terms 33 • Notes 33

Chapter 2 INDIGENOUS RELIGIONS35

OVERVIEW35

Origins of Homo religiosus: Prehistory 36

Religion’s Origins Among Hunter-Gatherers 41

ix
x CONTENTS

Fertility, Childbirth, and Survival 42

Religion in Prehistory: The Secret of Early Cave Rituals 42
Indigenous Religious Traditions: Soul Belief and Afterlife 44
Totemism: Australian Aboriginal Religion 47
Shamans: “Technicians of the Sacred” 49
Case Studies in Indigenous Religious Practices Today 50
Bear Sacrifice: A Widespread Arctic and Pacific
Rim Tradition 52
Shamans Who Repair the World 53
Indigenous Religions Today 55
The Cataclysms of Colonialism 55
Shamanism in Modern Asia: Division of Labor
Within the World Religions 59
Global Neo-Shamanism: Expropriation by “White Shamans” 61
Conclusion 62
Discussion Questions 63 • Key Terms 64 • Suggested
Readings 64 • Notes 65 • Additional Resources 65

Chapter 3 THE MANY STORIES OF JUDAISM:

SACRED AND SECULAR67

OVERVIEW67

Encounter with Modernity: Modern Judaisms and the

Challenge of Ultra-Orthodoxy 71
The Conflict over Public Life: Religion and Politics
in the State of Israel 71
Premodern Judaism: The Formative Era (2000 BCE–500 CE) 73
The Biblical Roots of Judaism 73
The Historical Roots of Diversity 78
Exodus and Exile: Story, History, and Modernity 80
From Torah to Talmud 81
Premodern Judaism: The Classical Era (500 CE–1729 CE) 87
The Premodern Rabbinic World: God, Torah, and Israel 87
The Medieval Journey of Judaism 89
Two Great Medieval Scholars: Rashi and Maimonides 96
Kabbalah—Jewish Mysticism 96
Hasidism 97
 CONTENTS xi

Judaism and Modernity (1729–1967 CE) 98

The Emergence of Modern Religious Forms of Judaism 98
The Emergence of Secular Forms of Judaism 103
Judaism and Postmodern Trends in a Postcolonial World (1967–) 110
Challenges to Jewish Faith After the Holocaust 110
Challenges to Jewish Existence After the Holocaust 114
Conclusion 120
Discussion Questions 121 • Key Terms 122 • Suggested
Readings 122 • Notes 122 • Additional Resources 123

Chapter 4 CHRISTIAN DIVERSITY AND THE ROAD TO

MODERNITY125

OVERVIEW125

Overview: The Beliefs of Christians 126

Encounter with Modernity: The Fundamentalist–
Modernist Controversy (1859–) 130
The Protestant Confrontation with Modernity 130
The Catholic Confrontation with Modernity 131
Premodern Christianity: The Formative Era (31–451 CE) 132
The New Testament and the Life of Jesus 132
Apocalypse: The Book of Revelation 136
Christianity’s Emergence from Judaism 138
The Fall of the Temple 140
The Origins of Christian Anti-Jewish Sentiment 141
Jesus as Son of God 142
Constantinianism: The Marriage of Christianity and Empire 143
Augustine, Architect of Western Christianity 145
The Eastern Orthodox Churches 147
Premodern Christianity: The Classical Era (451–1517 CE) 148
The Medieval Worldview: Sacraments and Festivals 149
The Two Cities Revisited 151
The Promise and Threat of Christian Mysticism 154
Christianity, Judaism, Islam: Crusades and Inquisition 154
Christianity and Modernity (1517–1962) 156
The Early Roots of Modernity 156
xii CONTENTS

Millennialism: History as Progress 156

The Via Moderna and Devotio Moderna 157
Devotio Moderna and the Protestant Reformation 158
Calvin and the Protestant Ethic 160
Other Reform Movements 160
Religious Diversity: Church and State in War and Peace 162
Enlightenment Rationalism and Christian Pietism 163
Nineteenth-Century Romanticism and Existentialism 166
From the Holocaust to Hiroshima: The Global Collapse of the Modern
Myth of History as Progress 169
Christianity and Postmodern Trends in a Postcolonial
World (1962–) 171
From Colonial to Postcolonial Christianity 171
Conclusion: The Challenge of Religious Pluralism 179
Discussion Questions 180 • Key Terms 180 • Suggested Readings 181
• Additional Resources 181

Chapter 5 ISLAM: THE MANY FACES OF THE MUSLIM

EXPERIENCE183

OVERVIEW183

Encounter with Modernity: The Challenge of Western Colonialism 189

The Islamic Resurgence 190
Islam in the West 191
Premodern Islam: The Formative Era 191
Muhammad’s Early Life 192
After the Hijra 194
The Message of the Quran 197
A Golden Age of Expansion, Conquest, and Creativity 198
Diversity, Division, and Dissent 201
The Origins of the Sunni–Shiah Split 203
Premodern Islam: The Classical Era 204
Law and Mysticism: The Exterior and Interior Paths to God 205
The Five Pillars of Islam 206
Women and Muslim Family Law 211
The Interior Path of Love: Islamic Mysticism 215
Islam and the State 217
 CONTENTS xiii

Islam and the West (Christendom): The Crusades 219

Premodern Revivalist Movements 222
Islam and Modernity 223
Islamic Modernism 224
Modern Islamic Revivalist Movements 224
Radical Islam 226
Islam and Postmodern Trends in a Postcolonial World 228
The Impact of the Islamic Resurgence 228
Islam in Modern State and Society 228
The Failure of Modernity and the Islamic Revival 229
The Religious Worldview of Contemporary Islamic Activism 230
From the Periphery to Mainstream Politics and Society 231
The Road to 9/11 232
Globalization and Hijacking of Jihad 234
Jihad as Armed Struggle 234
Suicide Bombing: War of the Fatwas 236
Post 9/11: Impact and Response 236
European Muslims 238
A Common Word Between Us and You 239
Islam and the Arab Awakening: Between
Authoritarianism and Pluralism 240
Questions for Postmodern Times: Issues of Authority
and Interpretation 241
Islam in the West 242
Islam: Postmodern Challenges 249
Islamization of the Law 251
Women and Minorities 251
Islamic Reform 254
Conclusion 255
Discussion Questions 256 • Key Terms 257 • Suggested Readings 257
• Notes 258 • Additional Resources 258

Chapter 6 HINDUISM, JAINISM, AND SIKHISM:

SOUTH ASIAN RELIGIONS261

OVERVIEW261

Defining Hinduism: Unity, Diversity, Localities 263

Encounter with Modernity: Hindu Challenges to
India as a Secular State 266
xiv CONTENTS

Premodern Hinduism: The Formative Era 268

The Aryans and Religion in the Vedic Era 268
Vedic Religion 268
Karma, Yoga, and the Quest for Liberation 270
Yoga 271
Premodern Hinduism: The Classical Era (180 BCE–900 CE) 273
Early Heterodox Indic Religions: Jainism and Buddhism 274
Jainism: The Tradition of Spiritual Conquerors 274
The Reality of Karma and Caste 276
The Four Stages and Four Aims of Life 277
Epics and the Development of Classical Hinduism 278
Mainstream Hinduism and the Rise
of Devotion to the Great Deities 279
Premodern Hinduism: The Postclassical Era (900–1500 CE) 284
The Formation of Major Hindu Schools of Thought 284
The Early Islamic Era: Delhi Sultanate (1192–1525) 287
Religion in the Mughal Era (1526–1707) 287
The Rise of Sikhism 287
Hinduism and Modernity 291
Hinduism Under British Colonialism 292
Challenges and Responses to Colonialism 293
The Work of Gandhi: Hindu Elements in Indian Nationalism 298
Hinduism and Postmodern Trends in a Postcolonial World 301
The Persistence of Traditional Religious Understandings 301
Contemporary Hindu Practices 303
Hindu and Sikh Festival Practice 308
Pilgrimage Festivals 309
Sikh Festivals 314
The Religious Institutions of Contemporary Hinduism 315
Changes and Continuities: Examples of Postcolonial Hinduism 316
The Connection of Religion with Philanthropy and Social Reform 323
Religious Nationalism: Secular India and Its Discontents 323
A Growing Global Tradition 326
Conclusion 330
Discussion Questions 332 • Key Terms 333 • Suggested Readings 333
• Notes 334 • Additional Resources 334
 CONTENTS xv

Chapter 7 BUDDHISM: PATHS TOWARD NIRVANA337

OVERVIEW337

Encounter with Modernity: Socially “Engaged Buddhism” 341

Premodern Buddhism: The Formative Era (600 BCE–100 CE) 342
The Buddha: Context and Biography 342
Buddhism as the Path to Nirvana 348
The First Community and Its Development 351
How Buddhism Became a World Religion 352
Sangha and Monastery: The Institutional Vehicles
of Buddhism’s Expansion 353
Premodern Buddhism: The Classical Era (100–800 CE) 356
The Pan-Asian Expansion of Buddhism 356
The Core Doctrines 356
The Classical Ideal: Buddhist Civilization 362
The Mahayana: Philosophies and East Asian Monastic Schools 363
Premodern Buddhism: Buddhist Expansion (400–1500 CE) 368
South Asia 369
China 370
Southeast Asia 371
Japan 372
The Himalayan Region 373
Buddhism and Modernity 374
Early Modern Buddhist Polities: Monastics, Householders, Kings 374
Buddhist Monasticism 375
Buddhism Under Colonialism (1500–1960) 381
Challenges from Colonialism, Communism,
and Modern Critics (1800–Present) 382
The Twentieth-Century Buddhist Revival Gains Strength 383
Buddhism and Postmodern Trends in a Postcolonial World 385
South Asia 385
Theravada Buddhism Today in Southeast Asia 389
Tooth Relics and Anti-Muslim Riots in Myanmar 390
Three Contemporary Faces of Thai Buddhism 392
East Asia 395
Buddhism Today in Diaspora and in Asia 398
xvi CONTENTS

Buddhism’s Affinity for Modernization 401

The Sangha: Adaptive Reformism? 402
State Buddhism and the Poison of Ethnic Passion 405
Conclusion 406
Discussion Questions 409 • Key Terms 409 • Suggested Readings 410
• Note 411 • Additional Resources 411

Chapter 8 EAST ASIAN RELIGIONS: CONFUCIANISM,

DAOISM, SHINTO, BUDDHISM413

OVERVIEW413

Encounter with Modernity: The Fall and Return of Confucianism 420

The Postcolonial Challenge of Confucianism 420
East Asian Religions in the Formative Era (1500 BCE –617 CE) 421
Earliest History: Shang (1766–1122 BCE) 421
Development of the Multiple Traditions in Post-Han China 432
Religion Under the Early Japanese
Imperial State: Buddhism and Shinto 434
East Asian Religions in the Classical Era (645–1800 CE) 436
Classical Imperial China (645–1271 CE) 436
The Development of Buddhism, Daoism, and
Confucianism in Korea and Japan 438
East Asian Religions in the Late Classical Era (1400–1800) 440
East Asian Religions in the Early Modern Era 444
Disruptive European Intrusions 444
Traumatic Transitions of the Modern Era 445
The Appearance of New Religious Movements
and Religions 449
East Asian Religions and Postmodern
Trends in a Postcolonial World 453
Continuities and Transformations in the
East Asian Religions 453
The Religious Institutions: Monasteries, Temples, Shrines 456
The Return of Religion to China: Case Studies 461
Japan’s Creative Diversity: Old Traditions and New 469
Korea’s Strong Confucian Tradition Accommodates Diversity 476
 CONTENTS xvii

Conclusion: Have We Entered

a Third Confucian Age? 480
Discussion Questions 483 • Key Terms 483 • Suggested Readings 484
• Notes 485 • Additional Resources 485

Chapter 9 GLOBALIZATION: FROM NEW TO NEW AGE

RELIGIONS487

OVERVIEW487

Encounter with Modernity: The Challenge of Global Diversity to the

“Purity” of Tradition 488
New Religions 489
Old Religions and New Religions in the History of Religions 489
The New Age and New Age Religions 494
Postmodernism and the New Age 494
Theosophy, Christian Science, and
the Unity School of Christianity 498
Scientology 499
The Baha’i Global Religious Vision 501
Conclusion: The Postmodern Challenge—Can There Be a
Global Ethic in a World of Religious Diversity? 504
Beyond Atheism: The Challenge
of Postmodern Secular Relativism 505
“Passing Over”: A Postmodern Spiritual Adventure
That Responds to the Challenge of Globalization 508
Tolstoy, Jesus, and “Saint Buddha”: An Ancient
Tale with a Thousand Faces 511
The Children of Gandhi: An Experiment in
Postmodern Global Ethics 514
The Future of Religion in an Age of Globalization 516
Discussion Questions 517 • Suggested Readings 517
• Notes 518 • Additional Resources 518

GlossaryG-1

Art CreditsA-1

IndexI-1
PREFACE
Religion is unquestionably a dynamic spiritual and political force in the world today.
Around the globe religious experiences and beliefs profoundly change individual lives
even as they influence politics and play a powerful role in international affairs. This
sixth edition of World Religions Today addresses this reality with an introductory vol-
ume for college and university students.
Although this is a multiauthored text, with each author taking primary responsibil-
ity for different chapters (John Esposito: Islam; Darrell Fasching: Judaism, Christianity,
and New Age Religions and Globalization; and Todd Lewis: Hinduism, Buddhism,
East Asian Religions, and Indigenous Religions), it has truly been a collaborative
project from start to finish. Throughout the entire process we shared and commented
on each other’s material.
World Religions Today grew out of our several decades of experience in teaching
world religions. It is a product of our conviction that, for our students to understand
the daily news accounts of religions in our global situation, they need more than just
the ancient foundations of the world’s religions. Textbooks on world religions have
too often tended to emphasize historical origins and doctrinal developments, focusing
on the past and giving short shrift to the “modern” world. Many stressed a textual,
theological/philosophical, or legal approach, one that gave insufficient attention to the
modern alterations of these traditions. Most gave little attention to their social institu-
tions or their connections to political power. As a result, students came away with a
maximum appreciation for the origins and development of the classical traditions but
a minimum awareness of the continued dynamism and relevance of religious traditions
today. So, despite the growing visibility and impact of a global religious resurgence
and of the unprecedented globalization of all world religions, most textbooks have
not quite caught up. World Religions Today began with our commitment to address
this situation.
World Religions Today, Sixth Edition, continues our hallmark approach of using
historical coverage of religious traditions as a framework to help students understand
how faiths have evolved to the present day. Indeed, we open most chapters with an
“Encounter with Modernity.” These encounters illustrate the tension between the
premodern religious views and the modern/postmodern world. Each chapter then
returns to the origins of the tradition to trace the path that led to this confronta-
tion with “modernity.” We attempt to show not only how each tradition has been
changed by its encounter with modernity but also how each religion in turn has
influenced the contemporary world.

xix
xx P R E FA C E

NEW TO THE SIXTH EDITION

The book’s major theme and chapter structure have been retained from the earlier
editions, though they have been updated and revised. We have also updated chapter
content to reflect recent events at the time of writing. In response to reviewer sug-
gestions, we have:

• reduced, by approximately 20 percent, the complexity of detail that often

overwhelmed students
• expressed complex ideas as clearly and directly as possible
• updated the timelines

FEATURES

Each chapter is enriched by a wide variety of thematic and special-topic boxes that
explore particular ideas or practices in some depth. It is our hope that these lively and
interesting boxes are seen as an integral part of the text, allowing students to imagine
how religion today is among the most colorful, lively, and striking of human endeavors.

• “Gender Focus” boxes present additional information, beyond that in the

regular text, about different practices by believers of different sexes.
• “Rituals and Rites” boxes describe the ritual practices of believers, often
with a focus on ways these rites have changed over time.
• “Contrasting Religious Visions” boxes compare the beliefs of two signifi-
cant adherents of a faith who both see the demands of their religion calling
believers in very different directions, demonstrating that, no matter what
religion we are examining, that very same religious tradition can be used
to promote either peacemaking or conflict.
• “Teachings of Religious Wisdom” boxes offer some of the primary texts
and formal teachings of different religions.
• “Tales of Spiritual Transformation” offer descriptions of religious e­ xperiences
in the believers’ own words.

SUPPLEMENTARY MATERIALS
For the instructor: Supplementary materials are available on the Oxford University
Press Ancillary Resource Center (ARC), a convenient, instructor-focused single
 P R E FA C E xxi

destination for resources to accompany your text. Accessed online through individual
user accounts, the ARC provides instructors with access to up-to-date ancillaries at
any time while guaranteeing the security of grade-significant resources. In addition,
it allows OUP to keep instructors informed when new content becomes available.
Available on the ARC:

• The Instructor’s Manual, which includes the following:

Chapter summaries
Chapter goals
Lecture outlines
Key terms with definitions
Suggested web links and other resources
• A Computerized Test Bank, including 40 multiple-choice, 40 true/
false, 40 fill-in-the-blank, and 12 essay/discussion questions per chapter
• Lecture outlines as PowerPoint-based slides

A link to the ARC is available on the Companion Website (www.oup.com/us/

esposito).

For the student: The Companion Website (www.oup.com/us/esposito) includes

the following student resources:

• Chapter goals
• Flashcards of key terms
• Suggested web links and other resources
• Self-quizzes, containing 20 multiple-choice, 20 true/false, 20 fill-in-the-
blank, and 6 essay/discussion questions per chapter, selected from the Test
Bank in the ARC

The Instructor’s Manual and Computerized Test Bank, as well as the student mate-
rial from the Companion Website, is also available in Learning Management
­Systems Cartridges, in a fully downloadable format for instructors using a learning
management-system.

ACKNOWLEDGMENTS

This sixth edition of World Religions Today has been substantially revised in light
of the valuable comments we continue to receive from colleagues across the
country who have used it and in light of our own subsequent experiences and
reflections. We offer special thanks to the following professors and to the other,
xxii P R E FA C E

anonymous, reviewers. This edition is much stronger because of their thoughtful

comments:

Kenneth Bass, Central Texas College

Todd M. Brenneman, Faulkner University
Clayton Crockett, University of Central Arkansas
Dennis G. Crump, Lindsey Wilson College
Jonathan Ebel, University of Illinois–Urbana Champaign
Jim Gustafson, Florida Southwestern State College
B. N. Hebbar, George Washington University
Samuel Hopkins, Northern Arizona University
Ernest P. Janzen, University of Winnipeg
Scott Kenworthy, Miami University of Ohio
Kristin Beise Kiblinger, Winthrop University
Lee Krahenbuhl, Mercy College of Ohio
Andrew Pavelich, University of Houston–Downtown
Judith Poxon, California State University–Sacramento
Bassam Romaya, University of Massachusetts–Lowell
Patricia Walters, Rockford University
Alice L. Wood, Bethune-Cookman University

Thanks also to the reviewers of the previous editions for their lasting input on the
work: Constantina Rhodes Bailly, Eckerd College; Herbert Berg, University of North
Carolina–Wilmington; Sheila Briggs, University of Southern California; Robert
Brown, James Madison University; Terry L. Burden, University of L ­ ouisville; ­Dexter
E. Callender Jr., University of Miami; David Capes, Houston Baptist University;
James E. Deitrick, University of Central Arkansas; Sergey Dolgopolski, University of
Kansas; Joan Earley, State University of New York at Albany; James Egge, Eastern
Michigan University; John Farina, George Mason University; Debora Y. Fonteneau,
­Savannah State University; Liora Gubkin, California State ­University–Bakersfield;
William David Hart, University of North Carolina–­Greensboro; W ­ illiam Hutchins,
Appalachian State University; Father Brad Karelius, Saddleback Community College;
Sandra T. Keating, Providence College; Mohammad Hassan Khalil, University of
Illinois; David Kitts, ­Carson-Newman University; Louis Komjathy, University of San
Diego; Peter David Lee, Columbia ­College—­California; Ian Maclean, James Madison
University; Sean McCloud, University of North Carolina at Charlotte; Tim Murphy,
University of Alabama; Nancy Nahra, Champlain College; Jason Neelis, University of
Florida; Patrick Nnoromele, Eastern Kentucky University; ­Catherine Orsborn, Uni-
versity of Denver; Robin L. Owens, Mount St. Mary’s College; Linda Pittman, Col-
lege of William and Mary; Kris Pratt, Spartanburg Methodist College; Rick Rogers,
Eastern Michigan University; Barry R. Sang, Catawba College; Brooke Schedneck,
Arizona State University; D. Neil Schmid, North Carolina State University; Paul
Schneider, University of South Florida; Martha Ann Selby, U ­ niversity of Texas at
 P R E FA C E xxiii

Austin; Caleb Simmons, University of Mississippi; Theresa S. Smith, I­ ndiana Univer-

sity of Pennsylvania; Yushau Sodiq, Texas Christian University; Phillip Spivey, Uni-
versity of Central Arkansas; Bruce Sullivan, Northern Arizona University; Aaron J.
Hahn Tapper, University of San Francisco; James H. Thrall, International College–
University of Bridgeport; Eglute Trinkauske, Nazareth College; Peter Umoh,
­University of Bridgeport; Hugh B. Urban, Ohio State University; Anne ­Vallely, Uni-
versity of Ottawa; Andrew Christian Van Gorder, Baylor University; Glenn Wallis,
University of Georgia; Tammie Wanta, University of North Carolina at Charlotte;
Mlen-Too Wesley, Penn State University; Catherine Wessinger, Loyola University
New Orleans; Mark Whitters, Eastern Michigan University; Simon A. Wood, Uni-
versity of Nebraska–Lincoln. John Esposito would like to acknowledge the invaluable
contributions to the Islam chapter of Tasi Perkins, his research assistant.
We have been fortunate to work with an excellent, supportive, and creative team
at Oxford University Press, led by Robert Miller, Executive Editor in Oxford’s Higher
Education Group. Senior Production Editor Barbara Mathieu, Editorial A ­ ssistant
­Kellylouise Delaney and Assistant Editor Alyssa Palazzo, and Senior Development
Editor Meg Botteon have been extraordinarily supportive throughout the writing
process. Our thanks also to Robin Tuthill, who prepared the student and instructor
support materials for the first four editions of the book, and to Kate Kelley, who
updated them for the fifth and sixth editions.
John L. Esposito
Darrell J. Fasching
Todd T. Lewis
 GREENLAND

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UNITED KINGDOM

IRELAND

FRANCE

NORTH UNITED STATES NORTH

PORTUGAL SPAIN
PACIFIC ATLANTIC
OCEAN OCEAN
MOROCCO

HAITI WESTERN
Tropic of Cancer MEXICO CUBA SAHARA
DOMINICAN
REPUBLIC
BELIZE PUERTO RICO MAURITANIA
CAPE VERDE IS. MALI
TRINIDAD
JAMAICA and TOBAGO
GUATEMALA SENEGAL
EL SALVADOR GUYANA GAMBIA
NICARAGUA VENEZUELA GUINEA BISSAU
SURINAM
COSTA RICA GUINEA
FRENCH SIERRA LEONE
PANAMA COLOMBIA GUIANA LIBERIA
Equator BURKINA FASO GHANA
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Philadelphia of 1787. As we have just lived through all that period
with them, we are in a wonderful position to read it and understand it
as they understood it. Moreover, we are in a wonderful position to
listen to the statements of the men in those “conventions.” In those
statements, whether by advocates or opponents of the Constitution,
we shall find the invincible negation—without one dissent—of the
absurd assumption that Madison’s Fifth Article is a “grant” of any
ability to make Articles. In those statements, we shall find all
discussion of that Fifth Article centering upon the one question, i.e.,
whether it provides a practical mode of procedure in which the
exclusive ability of the “people” or “conventions” can defend
individual rights by withdrawal of some part of the power of
interference therewith granted in the First Article. Mason had pointed
out at Philadelphia that the procedural provisions of the Fifth Article
—and it consists entirely of procedural provisions for the exercise of
existing powers—left the drafting and proposal of Amendments
entirely to governments. For which reason, in the “conventions,”
Henry and all the great opponents of the Constitution argued that, if
the individual Americans found the granted national powers of the
First Article dangerous to human liberty, the “people” or
“conventions” would never get the constitutional opportunity to
exercise their ability to withdraw.
“You”—the “you” being the individual Americans assembled in one
convention—“therefore, by a natural and unavoidable implication,
give up your rights to the general government.... If you give up these
powers,” the enumerated powers of the First Article, “without a bill of
rights, you will exhibit the most absurd thing to mankind that ever the
world saw—a government that has abandoned all its powers—the
powers of direct taxation, the sword, and the purse. You have
disposed of them to Congress, without a bill of rights—without check,
limitation, or control. And still you have checks and guards; still you
keep barriers—pointed where? Pointed against your weakened,
prostrated, enervated state government! You have a bill of rights to
defend you against the state government, which is bereaved of all
power, and yet you have none against Congress, though in full and
exclusive possession of all power! You arm yourselves against the
weak and defenseless,” the state legislatures mentioned in the Fifth
Article, “and expose yourselves naked to the armed and powerful. Is
not this a conduct of unexampled absurdity?”
So thundered Henry in the Virginia convention. (3 Ell. Deb. 446.)
“To encourage us to adopt it, they tell us that there is a plain, easy
way of getting amendments. When I come to contemplate this part, I
suppose that I am mad, or that my countrymen are so. The way to
amendment is, in my conception, shut. Let us consider this plain,
easy way.” Then follows the verbatim statement of the Madison Fifth
Article as proposed from Philadelphia. “Hence it appears that three
fourths of the states must ultimately agree to any amendments that
may be necessary. Let us consider the consequence of this.
However uncharitable it may appear, yet I must tell my opinion—that
the most unworthy characters may get into power and prevent the
introduction of amendments. Let us suppose—for the case is
supposable, possible, and probable—that you happen to deal those
powers to unworthy hands; will they relinquish powers already in
their possession, or agree to amendments? Two thirds of the
Congress, or of the state legislatures, are necessary even to
propose amendments.... To suppose that so large a number as three
fourths of the states will concur is to suppose that they will possess
genius, intelligence, and integrity, approaching to miraculous. It
would indeed be miraculous that they should concur in the same
amendments, or even in such as would bear some likeness to one
another; for four of the smallest states, that do not collectively
contain one tenth part of the population of the United States, may
obstruct the most salutary and necessary amendments. Nay, in
these four states, six tenths of the people may reject these
amendments.... So that we may fairly and justly conclude that one
twentieth part of the American people may prevent the removal of
the most grievous inconveniences and oppression, by refusing to
accede to amendments. A trifling minority may reject the most
salutary amendments. Is this an easy mode of securing the public
liberty? It is, sir, a most fearful situation, when the most contemptible
minority can prevent the alteration of the most oppressive
government; for it may, in many respects, prove to be such.” (3 Ell.
Deb. 48.)
 So thundered Henry against the weakness of the Madison
procedure in which only by proposal from governments could there
be constitutionally evoked the exclusive ability of the citizens of
America to dictate how much power to interfere with individual
freedom should be left for the citizens of each state to use in
governing themselves, and how much power of that kind should be
retained by the individual people of America themselves. Henry was
opposing a Constitution in which the individual people of America
were dictating that their general government, the Congress, should
have only the enumerated powers of that kind which are in the First
Article. In it, they were dictating that each state government, except
as the American people forbade it, should have just so much of that
kind of power as the citizens of that particular state should grant that
government. And in it, they were dictating that the people of America
themselves, the most important factor and reservee of the Tenth
Amendment, should retain all other power of that kind to be granted
only by themselves, the “conventions” of the Madison Fifth Article.
Throughout all his thunder against that Constitution, Henry, like
every other opponent of that Constitution, never questioned that this
was the exact distribution of power to interfere with individual
freedom which was dictated in the Constitution. His only complaint,
and their only complaint, was that the Madison Fifth Article, because
its constitutional procedure could only be evoked by a proposal from
governments, was no protection to human liberty against the granted
power of that kind in the First Article. The absurd thought of our
modern “constitutional” thinkers (contradicting the plain statement of
the Tenth Amendment and contradicting everything that was said in
the “conventions” that made the Fifth Article) is that the Article itself
is a “grant” of omnipotent power to governments (the legislative
governments of the states) to interfere with individual freedom. When
we contrast the knowledge of Henry and his colleagues with the
modern absurdity, we echo Henry’s words and exclaim, “We
suppose that we are mad, or that our modern constitutional thinkers
are so.” If Henry had read into that Fifth Article, if the opponents of
the proposed Constitution had read into it, any “grant” of ability to
state governments, certainly it was an absurdity for him to refer to
those governments as “weakened, prostrated, enervated” by the
proposed Constitution.
And so, educated in the experience of those Americans who
assembled in those “conventions” named in the Seventh and Fifth
Articles, we sit with them in the conventions of that earlier day and
read that Fifth Article with them, while they decide to make it with the
six other Articles. Living through their experience, like them we have
become “a people better acquainted with the science of government
than any other people in the world,” so far as government is intended
to secure individual liberty and happiness. When we sit with them,
we intend not to forget, as they never did forget in those
conventions, that this was the sole purpose of the Constitution they
considered and made, the purpose of securing individual liberty and
happiness. In this respect, they differed in their whole philosophy of
government with the new school of thought that, in our day, has its
different manifestations of exactly the same philosophy of
government on the part of the Bolshevik in Russia and the minority in
America which has dictated that government enactment of the new
constitution of government, known as the Eighteenth Amendment.
The Americans of ’76 and ’87 set the individual liberty and
freedom of man above everything in this world except the Divine Will
of the Creator of man. In the Preamble of their Constitution, they
echo the declarations of their Statute of ’76. Their creed was that the
laws of right and wrong are immutable; that the Creator made the
individual man and granted human freedom to him; that such
freedom is inherently subject only to the Divine Will, the immutable
law of right and wrong, but that it may voluntarily become subject, by
the will of the individual man, to the exercise of powers of
interference which only he and his fellow men themselves can ever
validly grant to government.
“But what is government itself, but the greatest of all reflections on
human nature? If men were angels, no government would be
necessary. If angels were to govern men, neither external nor
internal controls on government would be necessary. In framing a
government which is to be administered by men over men, the great
difficulty lies in this: You must first enable the government to control
the governed; and in the next place, oblige it to control itself.”
(Madison or Hamilton, Fed. No. 51.)
When we sit in the conventions of 1787 and 1788 with the
Americans who had this common concept of the only purpose of
government of men, their concept is our own as we read with them
the language of the Fifth Article. And it is impossible for us, as it is
impossible for them, to find concealed in that language the thought
of a “grant” to government, a “grant” which would challenge this
concept of the very purpose of government. They are sitting in
“conventions” assembled to determine whether American individuals
will enter into the new society of men, which is to be America. They
have received the Fifth Article from Americans in Philadelphia, who
have accompanied the proposal of that Fifth Article with a letter
which states, “Individuals entering into society must give up a share
of liberty, to preserve the rest.” This statement is recognized by the
Americans, in the “conventions” where we sit, as the exact statement
of the concept of the sole purpose of a government of men. With that
concept and that letter before us, how can we or the Americans with
whom we sit find in the Fifth Article the remarkable idea that
Americans, entering the society of America, are to give up all their
liberties to the state governments in order that Americans may
preserve the rest of their liberties?
In these modern days, however, there has asserted itself, in
Bolshevik Russia and in the America of which we are the citizens,
two distinct manifestations of an entirely different concept of the
purpose of government than was the concept of the Americans in the
“conventions.” Although the manifestation of the new concept by the
Bolshevik in Russia has been different from the manifestation of the
new concept by an aggressive and organized minority in America,
the new concept, at the bottom of each manifestation, is exactly the
same. It is the concept that the purpose of constituting a government
of men is to secure the welfare of the state or community or nation
and not the liberty and happiness of the individuals who compose
the nation. This is the exact concept of the Bolshevik Russian and
the Eighteenth Amendment American. To neither of them would the
words of that letter from Philadelphia convey the slightest meaning,
the words “individuals entering into society must give up a share of
liberty, to preserve the rest.” In their mutual concept, the individual
has no liberty which government need respect. In the Bible of their
concept, men cannot find the words which declare the basic
American principle, that every just power of government must come
from the individuals who are to be governed by its exercise. It is,
however, a misnomer to call this common concept of the Bolshevik
Russian and the Eighteenth Amendment American a new concept. It
is identical with the old concept known as “Socialism,” the concept
that community welfare, the prosperity and power and strength of a
nation, are more important things than individual liberty and
happiness and enjoyment of human freedom. It is a concept which
sets the state (a political entity created by men) and the welfare of
the state above what the Americans of ’76 and ’87 knew and
proclaimed to be superior to all human creations, namely, the
individual man, the noblest creation of the Divine Creator. In other
words, the common concept of the Bolshevik Russian and the new
Amendment American is but the reaction to the century-old concept
whose repudiation was the main theme of the Declaration of
Independence, the concept that individual men, the creation of God,
are made for kings or governments or political entities.
To those who hold such a concept there comes no shock when
they are asked to imagine that the language of the Fifth Article
implies a grant of ability to the state governments to do what those
governments will with the liberties of the citizens of America. But we
are sitting in “conventions” of Americans of a different type,
Americans who, eleven years earlier, have repudiated forever the
concept that men are made for kings or governments or political
entities. And, if we wish to know what the Americans in these
conventions think of the concept of the Bolshevik Russian and the
Eighteenth Amendment American, we get our wish from the man
who wrote the language of the Fifth Article.
“We have heard of the impious doctrine in the Old World,” the
reactionary doctrine of modern Russia and of our own aggressive
minority, manifested in two different disguises, “that the people were
made for kings, not kings for the people. Is the same doctrine to be
revived in the New, in another shape—that the solid happiness of the
people is to be sacrificed to the views of political institutions of a
different form?... As far as the sovereignty of the states can not be
reconciled to the happiness of the people, the voice of every good
citizen must be, Let the former be sacrificed to the latter. How far the
sacrifice is necessary, has been shown. How far the unsacrificed
residue will be endangered, is the question before us.”
This is the language of Madison, in The Federalist, Number 45,
asking the individual Americans to make the Constitution to secure
their individual happiness. It will amaze us later herein to hear the
thought of our modern “constitutional” thinkers that his Fifth Article
makes the state governments (from whom that Constitution took
sovereignty to secure the individual happiness of the American
citizen) a supreme and omnipotent government of the American
citizens, a government knowing no will but its own. Meanwhile let us
forget this latter day nonsense and breathe again the real American
atmosphere, where individuals, entering a society, give up a share of
their liberty, to preserve the rest. Let us sit with the real
“constitutional” thinkers of America as they sat in the conventions
and read with them the Fifth Article worded by Madison. This is what
they read:
ARTICLE V
The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of two
thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid
to all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made
prior to the Year One thousand eight hundred and eight shall
in any Manner affect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate.
 Sitting with these Americans, in their “conventions,” we note
immediately, as they note, that the Article names themselves. And
we note, as they note, that it names themselves, the individual
American citizens, the “people” of the Preamble and the Tenth
Amendment, by exactly the same name, “conventions,” as in the
Seventh Article and as in the Resolution of the Philadelphia
Convention, which proposed the only valid mode of ratification for
the constitution of government of men in the First Article, the mode
which required ratification by the individual Americans themselves,
the “conventions” of the Seventh and the Fifth Articles. We cannot
help noting it—as we intend never to forget it—because we are
sitting with them, as the people of America, in the very “conventions”
so named in the Seventh Article.
Having their vital and accurate knowledge of the difference
between federal and national Articles, that only the latter kind
exercises or grants power to interfere with individual human
freedom, we recognize at once why the state legislatures are also
mentioned in the Fifth Article, although they never can make national
Articles. We know it is because those “legislatures,” as the Tenth
Amendment expressly declares, retain their existing ability to make
federal Articles or Articles which neither exercise nor grant power to
interfere with individual freedom. And, sitting in those “conventions,”
where Hamilton also sits, we recall his remarkable prophecy, just
made to us in The Federalist, as we were about to enter the
“conventions” with the other Americans therein. “For my own part, I
acknowledge a thorough conviction that any amendments which
may, upon mature consideration, be thought useful, will be
applicable to the organization of the government, not to the mass of
its powers.” (Fed. No. 85.) In that absolutely accurate advance
knowledge of the complete history of constitutional amendment from
1789 to 1917, we recognize the motive which prompted Madison and
Hamilton, on September 10, 1787, to add the mention of those
legislative governments to the Fifth Article mention of the exclusive
ability of the people or “conventions” to make all future Articles which
do relate to the “mass of its powers” to interfere with individual
freedom conferred upon the one government of America. We
understand that these legislative governments are mentioned in the
Fifth Article, which we are now reading in the “conventions” of old,
because those “legislatures” have an existing ability to make federal
Articles which relate to other things than the national power of
government to interfere with individual freedom.
Having thus satisfied ourselves, in those conventions, that we
ourselves, the “people” of America, are mentioned in the Fifth Article
as the sole makers of any future Article which exercises or grants
power to interfere with our individual freedom, we turn with interest to
the procedure which the Article establishes as the only constitutional
mode of procedure in which that exclusive ability of our own may
hereafter be evoked to exercise and be exercised.
From the language of the Article itself, we know at once that it is
simply the statement of a mode of procedure in which our own
unlimited ability or the limited ability of the state legislatures, when
the occasion seems to arise for the respective exercise of either
ability, are hereafter to be evoked by some body of men, playing the
part which the Philadelphia Convention has just played in evoking
our own exclusive ability, the ability of the “people” or “conventions.”
Outside the language of the Fifth Article itself, many other things
make that fact clear to us. For instance, we recall what Madison has
just told us. He had written this Article at Philadelphia. Then, asking
the American people to prescribe this constitutional mode of
procedure for the future exercise of either respective existing ability,
he has explained to us, just before the convention in which we sit,
what the Fifth Article means.
“That useful alterations will be suggested by experience, could not
but be foreseen. It was requisite, therefore, that a mode for
introducing them should be provided. The mode preferred by the
Convention seems to be stamped with every mark of propriety. It
guards equally against that extreme facility, which would render the
Constitution too mutable; and that extreme difficulty, which might
perpetuate its discovered faults. It, moreover, equally enables the
general and State governments to originate the amendment of
errors, as they may be pointed out by the experience on one side, or
on the other.” (Fed. No. 43.).
 Sitting in the conventions of more than a century ago, we are
naturally uninfluenced (in our reading of plain English) by the story of
a century which has not even yet begun, the century that later began
in 1800. And so we get from his own words the knowledge that the
author of the Fifth Article knew it to be nothing but a constitutional
mode of procedure, for the future exercise of either ability to make
Articles. We see that the mode leaves with either “the general and
state governments” the ability to propose an Amendment to those
with existing power to make the particular proposed Amendment.
And we note, with intent to remember, that the author of the Fifth
Article, while he tells us about this reservation of existing abilities to
propose amendments, pointedly does not tell us that the Article
grants any power to any government or governments to make
Amendments. In other words, we know that the Fifth Article reserves
to the general government and to the state governments exclusively
what otherwise they and every one else would have had—what
Madison himself called “the unauthorized privilege of any
respectable citizen or body of citizens”—the ability to propose, but
that it does not grant to any of those governments or all of them
collectively the ability which none of them ever had or can have, the
ability to make, constitutional Articles of a national kind, which relate
to interference with individual freedom. With this knowledge
confirmed by the clear statement of the author of the Fifth Article, we
read with interest its procedural provisions about the originating of
new Articles, about their drafting and their proposal and the proposal
of a mode of ratification for them, after they have been drafted and
their nature has determined who can make them.
Sitting in those conventions of old, we are in the company of many
of the men who were at the Philadelphia Convention. In Virginia we
see Madison and Randolph and Mason and others; in New York we
see Hamilton and others; in Pennsylvania we see Wilson and others;
in South Carolina we see the Pinckneys and others. That is our
experience in all the conventions. On all sides, among the American
people assembled therein, are those familiar with and talking about
the work at Philadelphia and the great debate there, in which was
ascertained, from the character of the Articles drafted there, which
maker of Articles, the state legislatures, with their existing ability to
make federal Articles, or the “people” themselves, the “conventions,”
with their existing unlimited ability to make all Articles, could make
the Articles drafted and about to be proposed. These men, by their
presence and their words, remind us how the nature of their First
Article, the fact that it constituted government to interfere with human
freedom, compelled the announcement of the decision that
legislative governments could never make that kind of an Article.
These men, by their presence and their words, remind us how they
reached the ascertainment of the fact which compelled their
Proposing Resolution to propose a mode of ratification by the
“people” themselves, by the “conventions” of the Seventh and the
Fifth Articles. They remind us, as one of the men with us later said in
the Supreme Court, that all assembled in our “conventions” feel and
acknowledge the legal necessity that every power to interfere with
individual freedom must be derived by direct grant from the people.
And, sitting in those conventions with them, where we all read the
Fifth Article they are asked to make, we recognize with certainty that
it prescribes that the Congress shall do exactly what the Philadelphia
Convention has just done—propose, and nothing more.
The words of the Fifth Article tell us that only Congress shall draft
and propose a new Article, just as the Philadelphia Convention
drafted and proposed its new Articles; that, after Congress has
drafted its new Article and is about to propose it, just as the
Philadelphia Convention did, when it exercised no power at all,
Congress shall examine carefully the nature of the drafted Article
and, having ascertained by such examination which existing ability to
make Articles (the limited ability of legislative governments or the
unlimited ability of the “people” or “conventions”) is competent to
make that particular Article, Congress shall propose ratification by
the ability which can make the proposed Article.
We are not misled because the Article prescribes this one
constitutional mode to evoke the existing limited ability or the existing
unlimited ability. Providing a constitutional mode for the exercise
of either does not lessen one ability or increase the other. By reason
of our education, we know the difference between the revolutionary
exercise of existing power and the constitutional exercise of existing
power. Because we have become of the “people better acquainted
with the science of government than any other people in the world,”
we know that to do something in a revolutionary manner does not
necessarily mean to do it by bloodshed or on the battle-field. We
know that to do something in a revolutionary manner means to do it
outside of any legally prescribed mode of procedure for the exercise
of existing power. We know that to do the same thing, in a
constitutional mode, is to do it in some mode prescribed by human
law or constitution. And that is why we understand, as did the men
with whom we are sitting in those conventions, that Congress, in the
future, is to do exactly what the Philadelphia Convention did and
nothing more. Congress is to do it constitutionally (where the
Philadelphia Convention did it outside of any human law and in a
revolutionary manner) because the Fifth Article commands that
Congress alone shall do it. Congress, when doing it, will be
exercising no power. The Philadelphia Convention exercised no
power when it did exactly the same things. And, when Congress
does it, Congress will be bound, as Philadelphia was bound, to
ascertain and propose the mode of ratification by which the
proposed Article will be ratified by ratifiers competent to make that
particular kind of an Article.
As we sit in the “conventions” and keep clearly in our mind that the
“conventions” and the “state legislatures” (both of which are
mentioned in the Fifth Article) each have existing but very different
abilities to make Articles, every part of the language of the Fifth
Article confirms our knowledge that the whole Article is no “grant” of
power but is a “constitutional” mode for the exercise of existing
powers.
Long after the conventions in which we sit, the Supreme Court
paid the tribute to those who wrote the Fifth Article that they were
“masters of apt, precise and classic English.” Keeping this thought in
mind, our attention is directed to the three-time use of the one word
“propose” in the Fifth Article. We know that to use the same word
three times in one sentence is very poor English unless there is a
distinct and definite intent and purpose that the meaning each time
shall be identically the same. Such definite intent and purpose is the
only deduction from what would otherwise be the inexcusable
tautology of the language of the Fifth Article. So, when we read that
Congress “shall propose amendments” or shall “call a convention for
proposing Amendments” and that “one or the other mode of
ratification may be proposed by the Congress,” we know with
certainty that each use of the word “propose” is intended to convey
an identical shade of meaning. From which we know that, as the
proposal of a new Article (by Congress or a Convention) will be a
mere proposal and will not make the proposed Article valid, so also
the Congress proposal of a mode of ratification will remain a mere
proposal and will not make that proposed mode valid for that
proposed Article, unless its proposed ratifiers are competent to make
that particular kind of an Article. This is what they had just known at
Philadelphia about their own proposals (both of Articles and of mode
of ratification) to us as we sit in the “conventions.” And so, in these
conventions, we know the proposals mentioned in the Fifth Article to
be identical (in nature) with the proposals made from Philadelphia.
We know the procedure outlined in the Fifth Article to be exactly the
same procedure as has just been followed at Philadelphia. We know
that our ratification (in these “conventions”) of that procedure will be
our approval of the procedure they followed at Philadelphia and will
be its prescription as the constitutional procedure hereafter to be
followed when either existing ability, that of the state governments or
that of ourselves in “conventions,” is to be hereafter evoked to
exercise. From all of which we recognize that, if Congress should
propose a mode of ratification by state legislatures and the proposed
Article is a grant of power to interfere with the individual liberty of the
American citizen, the state legislatures will remain just as
incompetent to make that Article as they were known to be at
Philadelphia when Madison and his colleagues held them to be
incompetent to make their proposed Article of that kind, the First
Article. And so we understand that the mere Congress proposal of a
mode of ratification (for such an Article) by state governments will
not give state governments ability to make such an Article.
Sitting in those old conventions, we now have read the procedural
provisions of the Fifth Article up to the point where proposals bring,
in a constitutional manner, a proposed new Article to makers with
existing ability to make the particular Article which has come to them.
We now read with interest the next chronological step of the
procedural provisions, the mention of the two existing makers of
Articles—the state legislatures, makers of federal or declaratory
Articles, and the “conventions” of the American citizens, makers of
any Article.
We are actually sitting in “conventions” identical with those named
in the Fifth Article. We are in the “conventions” mentioned in the
Seventh Article and named therein by exactly the same word as is
used in the Fifth Article, the word “conventions.” Both Seventh and
Fifth Articles have been worded at Philadelphia. We, assembled in
the “conventions” named in the Seventh Article, are the whole
American people. In our conventions, so assembled, we are to make
both the Seventh and the Fifth Articles, with their common use of
exactly the same word “conventions.” And so we understand, with a
knowledge which nothing can disturb, that the “conventions” of the
Fifth Article mean exactly what the “conventions” of the Seventh
Article mean. Thus we know, with knowledge which nothing can
disturb, that the “conventions,” named in both Articles, are the
American people, only competent makers (in 1787 or at any future
time) of national Articles which interfere with or grant power to
interfere with the individual freedom of the American citizen.
We recall vividly the proposal that came from Philadelphia eleven
years earlier or in 1776, that the Americans in each former colony
constitute a government with such powers to interfere with the
human freedom of its citizens. We recall that such governments
were constituted in what Marshall states to be the only way in which
men can act safely, effectively or wisely, when constituting
government of themselves, namely, by assembling in “conventions.”
We also recall vividly the proposal that came from the same
Philadelphia a year later or in 1777, that the states constitute a
federal government of states. And we recall that the state
legislatures, because they possessed existing ability to make federal
Articles, did validly make the federal Articles suggested in that
proposal.
We also recall, that the new Constitution, which is before us in the
“conventions” named in the Seventh Article, is to be both a national
Constitution, constituting government of men, and a federal
Constitution, constituting government of states. And we recall that
only one of the present Articles in that proposed Constitution, the
First Article, constitutes government of men by granting government
power to interfere with individual freedom. And we recall, with
Hamilton in the Convention beside us, the probability that all future
Articles in that dual Constitution, will probably be of the federal or the
declaratory kind which the existing ability of state legislatures can
make.
And so we understand why Madison and Hamilton, in their Fifth
Article, mention that existing ability of the state legislatures to make
Articles which do not relate to interference with individual freedom,
as well as they mention our own exclusive ability, the ability of the
“conventions” of the American people, to make Articles which do
relate to interference with individual freedom.
And, sitting in those conventions with the “people better
acquainted with the science of government than any other people in
the world,” when we read the language of the Fifth Article, it is
impossible for us to make the monumental error of assuming that the
mention of the two existing abilities adds anything to one or subtracts
anything from the other.
And so, with our minds in those “conventions” free from any
possibility of such monumental error, we now read and clearly
understand the most important words in the constitutional mode of
procedure for existing powers, which we know as the Fifth Article. To
none of the Americans in those conventions is there any doubt, to no
American, who understands what America is, can there ever be any
doubt, what are the most important words. They are the words “in
three fourths thereof” immediately following the words which name
the very kind of “conventions” in which we sit. These words, “by
conventions in three fourths thereof,” bring home to us the marvel of
what our “conventions” are doing.
In them sit the people of America, possessors of the supreme will
in America, assembled in their respective states, as free men and
not as the citizens of the particular state in which each convention of
Americans assembles.
We realize, as the Preamble of the Constitution before us
expressly declares, what is the first proposal upon which we act
affirmatively, when we say “Yes” to the whole proposal from
Philadelphia. The first effect of that “Yes” is that we, that part of the
American people in that particular state, do consent (with the
Americans in eight or more other willing states) to join the new nation
or political society of men, which is to be America, and that we
consent to be, with those other Americans, the citizens of the new
nation as soon as the Americans in eight other willing states give
their similar “Yes.” We are well aware, as we sit in one of the
“conventions,” that the Philadelphia proposal has left it open for the
free Americans in each state to become members or not of the new
society as they please, and that, therefore, the joining of that society,
by the Americans in at least nine states, will mean that the new
nation is created by unanimous action of the majority in every state
whose Americans become citizens of America.
From which we realize that the original grants of national power by
its citizens to the only government of the new nation will be the
second effect of the “Yes” from the Americans in nine conventions.
Thus these original grants, the First Article grants of enumerated
power to interfere with the individual freedom of the American citizen,
will be made simultaneously by the majority of Americans in every
state where Americans become citizens.
But, once these early Americans leave those first “conventions,”
the whole American people will constitute the members or citizens of
the new nation, America.
The people of these United States constitute one nation.
They have a government in which all of them are deeply
 interested. (Justice Miller in the Supreme Court, Crandall v.
Nevada, 6 Wall. 35.)
As in any other republican nation, all national powers must be
granted by its members or citizens. Any future national power, not
granted by the citizens themselves, will be neither just nor valid
because power of the American government to interfere with the
freedom of the American citizen will not have been granted by those
to be governed by its exercise.
But, when the whole American people leave these “conventions”
as the united citizens of America, although it will be wise and proper
and necessary that American citizens shall hereafter assemble in
“conventions” in their respective states for the making of new
proposed grants of power to interfere with their freedom, it will no
longer be necessary that a “Yes” from every “convention” should be
given to any future grant of such power. When the whole American
people assembled in those first conventions, a “Yes” from every
“convention” was necessary because that “Yes” meant the
willingness of the Americans in that state to become citizens of
America. But, once they all have become its citizens, it is in that
capacity—and not as citizens of each respective state—that the
American government will interfere with their individual freedom.
And it now dawns upon us, probably for the first time, how
imperative it is that the new Constitution should contain an explicit
command, prescribing how the vote of each “convention” should
count and how many “convention” votes should be sufficient and
necessary for any future proposed grant of power to interfere with
the freedom of American citizens. This brings home to us the
impressive and important meaning of the words “in three fourths
thereof” after the word “conventions” in the Fifth Article.
If they had not been written therein by the genius of the men at
Philadelphia, the method of counting the vote of each “convention”
and the number of “convention” votes constitutionally requisite
hereafter for a new grant of national power would be a matter of
infinite dispute. And so we recognize and pay our tribute, as we sit in
one convention of the first American citizens, to the wonderful
foresight of Madison and Hamilton and their colleagues at the
Philadelphia Convention which has just completed its labors. That
tribute is evoked by the words “three fourths thereof” after the word
“conventions.”
We see that these words end all possibility of dispute in two
important respects where dispute would be certain if the
constitutional mode of procedure did not contain our command
that, when future “conventions” are asked for further grant of power
to interfere with our individual freedom, the “Yes” of each convention
shall count as one “Yes” and a “Yes” from three fourths of the
“conventions” shall be both necessary and sufficient to make a new
grant of such power. And, as we dwell upon these amazingly
important words, their presence in the Fifth Article compels a greater
tribute to the men who wrote them than that demanded by the fact
that this ends the possibility of the disputes we have mentioned. It
grows upon us that these words are among the most important
securities to individual liberty in the whole Constitution. With
increasing admiration for the men at Philadelphia, we sit in those
early “conventions” and recall how much Madison and his colleagues
have just told us in The Federalist about the danger to individual
right from the tyranny of the citizens of a republic themselves,
whether that tyranny is attempted by a majority or an aggressive
minority of such citizens. We recall The Federalist, Number 51, and
its forceful exposition of the merits of the proposed Constitution and
its remarkable distribution of powers (powers granted to the new
government in the First Article, powers left with each state over its
own citizens and powers retained by the American people
themselves) as security for individual rights.
“In the compound republic of America, the power surrendered by
the people is first divided between two distinct governments, and
then the portion allotted to each subdivided among distinct and
separate departments. Hence arises a double security to the rights
of the people.... It is of great importance in a republic not only to
guard the society against the oppression of its rulers, but to guard
one part of the society against the injustice of the other part.
Different interests necessarily exist in different classes of citizens. If
a majority be united by a common interest, the rights of the minority
will be insecure. There are but two methods of providing against this
evil: The one by creating a will in the community independent of the
majority—that is, of the society itself; the other, by comprehending in
the society so many separate descriptions of citizens as will render
an unjust combination of a majority of the whole very improbable, if
not impracticable. The first method prevails in all governments
possessing an hereditary or self-appointed authority. This, at best, is
but a precarious security; because a power independent of the
society may as well espouse the unjust views of the major, as the
rightful interests of the minor party, and may possibly be turned
against both parties. The second method will be exemplified in the
federal republic of the United States. Whilst all authority in it will be
derived from and dependent on the society, the society itself will be
broken into so many parts, interests, and classes of citizens, that the
rights of individuals, or of the minority, will be in little danger from
interested combinations of the majority.... Justice is the end of
government. It is the end of civil society. It ever has been and ever
will be pursued until it be obtained, or until liberty be lost in the
pursuit. In a society under the forms of which the stronger faction
can readily unite and oppress the weaker, anarchy may as truly be
said to reign as in a state of nature, where the weaker individual is
not secured against the violence of the stronger.... In the extended
republic of the United States, and among the great variety of
interests, parties, and sects which it embraces, a coalition of a
majority of the whole society could seldom take place on any other
principles than those of justice and the general good.... It is no less
certain than it is important, understanding the contrary opinions
which have been entertained, that the larger the society, provided it
lie within a practical sphere, the more duly capable it will be of self-
government. And, happily for the republican cause, the practicable
sphere may be carried to a very great extent, by a judicious
modification and mixture of the federal principle.” (Fed. No. 51.)
In those important words of the Fifth Article, “in three fourths
thereof” after the word “conventions,” we now recognize the judicious
mixture of the federal principle in our own command which controls
our future constitutional exercise of our exclusive ability to create
new power to interfere with our individual freedom.
These words do not challenge or disturb the legal American
necessity that our American government must get any new power of
that kind from us ourselves, assembled in our “conventions.” But,
with a practical wisdom never exceeded in framing the “constitution”
of a self-governing nation, these words impose an amazingly
effective check upon the existing ability of a majority or aggressive
minority, in the republic which is America, to interfere with individual
rights. These words do not attempt to destroy or alter that existing
ability of the citizens of the new republic. On the contrary, these
words recognize the existence of that ability. But, with the wisdom
which means so much security to every individual right in America,
these words make it impossible that such ability can be
constitutionally exercised unless a majority or an aggressive and
organized minority, when seeking new government power to interfere
with the individual freedom of the American citizen, obtain a majority
support from the American citizens residing in every one of three
fourths of the state in America.
Leaving (just for a moment) the conventions of the old days, we of
this generation realize with gratitude the check so provided. We
understand now, as we never understood before, why the organized
minority which demanded that government write the new
Amendment into our Constitution was driven by this constitutional
check to ignore the plain fact that the new Amendment can never
validly be put into the Constitution (if we still are citizens and not
subjects) unless a “Yes” from the “people” themselves, the
“conventions” of the Fifth Article, is obtained from three fourths of
those “conventions.” We realize that the organized minority in
question must support their proposition on the concept that Madison
and Hamilton, who introduced and seconded the Fifth Article at
Philadelphia, intended that Article “to create a will in the community”
(which is America) “independent” of the supreme will of the American
people themselves, intended it to create that anomaly of a superior
will to the supreme will and to make that superior will the will of the
legislative governments of a fraction of the states. We refer that