Citizen or subject?

by Francis X. Hennessy

It is interesting and instructive to know that all this startling purpose, later completely achieved by appeal to the existing ability of the possessors of the supreme will in America, the people, assembled in their conventions, had not been the conception of a moment.

We find Madison, by many credited with the most logical mind of his remarkable generation, carefully planning, long before the meeting of the Convention, a quite detailed conception of the startling proposal of Randolph. In a letter from Madison to Randolph, dated April 8, 1787 (5 Ell. Deb. 107), he speaks of “the business of May next,” and of the fact “that some leading propositions at least would be expected from Virginia,” and says, “I will just hint the ideas that have occurred, leaving explanations for our interview.” When we remember the remarkable manner, entirely novel in the history of political science, in which our Constitution creates a new nation and its supreme national government and yet keeps alive the former independent nations and their federation, the next sentence of that letter is of absorbing interest. It reads, “I think, with you, that it will be well to retain as much as possible of the old Confederation, though I doubt whether it may not be best to work the valuable articles into the new system, instead of engrafting the latter on the former.” When we read the detailed story of the Philadelphia Convention and study its product, our Constitution, there worded and later made by the people, we realize that Madison’s idea, expressed in the quoted sentence, was accurately carried out largely through his own efforts.

Turning now to a later paragraph in that same April letter, we marvel at the foresight, the logical mind and the effective ability of the writer in later securing almost the exact execution of his idea by the entire people of a continent, even though that idea was the destruction of the independence of their respective nations and of their existing respective governments. That paragraph reads: “I hold it for a fundamental point, that an individual independence of the states is utterly irreconcilable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the states into one simple republic is not less unattainable than it would be inexpedient. Let it be tried, then, whether any middle ground can be taken, which will at once support a due supremacy of the national authority, and leave in force the local authorities so far as they can be subordinately useful.”

This remarkable letter then goes on, paragraph by paragraph, to suggest that, in the new Articles, the principle of representation be changed, so as not to be the same for every state; the new government be given “positive and complete” national power “in all cases where uniform measures are necessary”; the new government keep all the federal powers already granted; the judicial department of the new government be nationally supreme; the legislative department be divided into two branches; the new government have an executive department; there be an Article guaranteeing each state against internal as well as external dangers. In other words, the letter reads like a synopsis of the principal provisions of our present Constitution, although the letter was written over a month before the Philadelphia Convention began to draft that Constitution.

One paragraph in that remarkable letter is very important as the first of many similar statements, with the reasons therefor, made by Madison in the Philadelphia Convention, in the Virginia convention which ratified the Constitution and in The Federalist which urged its ratification. Madison was writing his letter within a few short years after the American people had made their famous Statute of 1776. He knew its basic law that every ability in government to interfere with individual freedom must be derived directly by grant from those to be governed. He knew that governments could give to government federal power to prescribe rules of conduct for nations. He also knew that governments could not give to government any power to prescribe rules of personal conduct which interfered with the exercise of individual human freedom. In other words, he knew the existing and limited ability of legislatures to make federal Articles and that such limited legislative ability was not and never could be, in America, competent to make national Articles. He also knew the existing ability of Americans themselves, assembled in their conventions, to make any kind of constitutional Article, whether it were federal or national. He knew that the limited ability had been exercised in making the federal Articles of the existing federation and that the unlimited ability had been exercised, in each existing nation, in making its national Articles.

With this accurate knowledge always present in his mind and repeatedly finding expression by him in the ensuing two years, it is natural that we find in his remarkable letter of 1787, after his summary of what Articles the new Constitution ought to contain and nearly every one of which it does contain, the following significant statement: “To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the legislatures.” From such a logical American, it is expected that we should find accurate echo again and again of this deference to basic American law in such later expressions as his statement in The Federalist, Number 37, “The genius of republican liberty seems to demand ... that all power should be derived from the people.”

Having thus grown well aware of the tremendous part played by Madison in shaping the substance of the Constitution of government under which we Americans live, let us return to the Philadelphia Convention in which he figured so prominently and which worded and proposed the Articles of that Constitution.

In the seven Articles, which were finally worded by that Convention, there are but three which concern themselves at all with the vesting of national power in government. They are the First, the Fifth and the Seventh.

The First Article purports to give, in relation to enumerated matters, all the national power which the Constitution purports anywhere to grant to its only donee of power to make laws interfering with human freedom, the national Legislature or Congress. Indeed, the opening words of that First Article explicitly state that, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Then the remaining sections of that Article go on to enumerate all the powers of that kind, the national powers, which are granted in the Constitution by the donors, the American people or citizens, assembled in their conventions.

If there be any doubt in the mind of any American that the First Article contains the enumeration of all national powers granted by the Constitution, the statements of the Supreme Court, voiced by Marshall, ought to dispel that doubt.