Citizen or subject?

by Francis X. Hennessy

In Federalist, Nos. 78 and 81, appealing to the Americans to make the Constitution, Hamilton points out that the Constitution does not authorize the Supreme Court to exercise its will to make the law what the Court thinks it ought to be, but does impose upon the Court the duty of exercising its judgment to ascertain what the law has been made by those competent to make it. And then he points out that the Supreme Court, in this Constitution of a self-governing people, is made the great bulwark of the people against legislative encroachment upon the rights or powers of the people reserved to themselves.

This knowledge of Hamilton has been the knowledge of the Supreme Court from its institution. It has been reiterated and explained and expounded in that Court from the days of Marshall to our own day. It has become part and parcel of the great traditions of that Court, which are the foundation of the great respect which the average American citizen pays to its decisions and its authority as his own great protection against usurpation of power by other departments of his various governments.

And so the average American citizen will look forward with certainty to the decision of that Court when the real challenge is made to the existence of the Eighteenth Amendment by an American who does know and assert the plain facts which mean that either there is no Eighteenth Amendment or there never has been an American citizen. It is simple fact that the existence of the Eighteenth Amendment, that government-made constitution of government of men, is absolutely incompatible with the existence of a citizen of America. It is simple fact that the Fifth Article did not grant to state governments or to any governments the ability to make Articles like the First Article or the Eighteenth Amendment, or else the Fifth Article made all Americans “subjects” of a part of the state governments, with omnipotent ability in those governments to legislate for Americans “in all matters whatsoever.”

And it is simple fact that the Supreme Court must and will—when the real challenge is at last made—decide that the Eighteenth Amendment is not in the national part of the American Constitution because it was made by governments and not by the “conventions” of the Fifth Article. Otherwise, in the face of history, in the face of the record of the “conventions” of the American citizens, and in the face of all that the Supreme Court has hitherto decided, the Court must decide that the American citizen has never existed. The possibility that there should be such a decision is absolutely beyond conception.

What the decision will be was long ago foreshadowed and forecast by Daniel Webster. It would almost seem as if Webster had heard the Sheppard claim that the states made the Constitution and that the states had then agreed between themselves that the governments of thirty-six of the states, in combination, could command the American citizen in any matter of his individual freedom. It would almost seem as if Webster had heard Hughes deny, while his associate lawyers for the Eighteenth Amendment still asserted with Sheppard, that the Constitution was a compact between states and then had heard them all insist that the Fifth Article was a “grant” which made thirty-six governments of state citizens an omnipotent Parliament over all citizens of America.

“When the gentleman says, the Constitution is a compact between the states, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government which would stand on a new basis—not a confederacy, not a league, not a compact between states, but a constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches, with prescribed limits of power, and prescribed duties. They ordained such a government; they gave it the name of a constitution; and therein they established a distribution of powers between this, their general government, and their several state governments. When they shall have become dissatisfied with this distribution, they can alter it. Their own power over their own instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the general government and on the states.” (Webster’s concluding remarks in the reply to Hayne, 4 Ell. Deb. 518.)

Is not the same doctrine certain from the Court which knew the whole Constitution so well that it decided, in the important case of Barron v. Mayor of Baltimore, supra, p. 376, that the entire Constitution gave no power of any kind to the state governments? Is not the same doctrine certain from the Court which held:

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. (Turner v. Williams, 194 U. S. 279 at 296.)

When the real challenge to the Eighteenth Amendment is presented before that Court, it will be necessary for the defenders of the Amendment to abandon the disguise in which they attempt to conceal the real nature of their Tory concept. No one of them has been bold enough to state in words the real claim about the Fifth Article. That real claim is that the Article is a “grant” and that the “grant” gives to thirty-six governments of state citizens unrestricted ability to interfere with the freedom of the American citizen on every subject enumerated in the First Article and on every subject not enumerated in the First Article. That is not the way any defender of the Amendment states his claim. It is always stated that those thirty-six governments can change the Constitution by putting into it anything which the American citizens, assembled in their “conventions,” can put into it. Our education with the Americans in the “conventions” has taught us that both statements are exactly the same statement. If the thirty-six state governments can make the command to the American citizens which is embodied in the First Section of the Eighteenth Amendment, by putting that command into the national part of our Constitution, any thirty-six state legislatures can make any command to the American citizens on any subject enumerated or not enumerated in the First Article. The claim, that the Fifth Article “grants” to the thirty-six state governments the right to put the command in the Constitution, is identical with the claim that the Fifth Article “grants” to the state governments the right to make the command to the citizens of America. A legislative command to human beings, interfering with their individual freedom, is a legislative command by whatever name it may be called. Mere omission to call a legislative command by the usual names, an “Act” or “Statute,” cannot alter its essential nature.

From June 21st, 1788, the birthday of the American nation of men, there has been but one possible answer to the question which is the title of this book. That one answer was known to everyone in the “conventions” which made the Fifth Article. The Americans in those conventions all knew that they were becoming “citizens” of America, not “subjects” of any governments. They knew that they were dispensing part of the power of the American citizens to Congress in the First Article; and that the rest of that power they were reserving to themselves. They knew that they were giving no power whatever to the state governments with whom they never deal except to command those governments.