Citizen or subject?

by Francis X. Hennessy

In many respects, the Philadelphia ascertainment of the legal necessity that it must be referred to those people themselves and the Philadelphia decision to that effect, following that ascertainment, constitute the most important and authoritative legal reasoning and decision ever made in America since July 4, 1776. Both reasoning and decision were naturally based upon the fact that the First Article purports to give national powers to Congress to make laws, interfering with the individual freedom of the citizens of America. In the face of that decisive fact, it was impossible for the Americans at Philadelphia, who had worded that proposed Article with its grant of enumerated powers of that kind, to have made any other legal decision than a reference of such an Article to the American people themselves assembled in their conventions, as the only competent grantors of any national power.

The Americans at Philadelphia were human beings of exactly the same type as all of us. They had their human ambitions and differences of opinion and jealousies. They were not supermen any more than we are. They were grappling with tremendous problems along an uncharted way in the comparatively new science of self government by a free people, sparsely settled along the extensive easterly coast of a continent and, at the time, citizens of thirteen distinct and independent nations. Their personal ambitions and differences of opinion and jealousies, for themselves and their respective nations, made the problem, which they set themselves to solve, one almost unparalleled in history. If they had wholly failed in their effort, as men with any other training and dominant purpose in life would certainly have failed, no just historian would ever have attributed such failure to any lack of intelligence or ability or patriotism on their part.

It was, however, their fortune and our own that their training and dominant purpose in life had been unique in history. Among them were men, who only eleven years earlier, at that same Philadelphia, in the name and on behalf of the American people, had enacted the Statute of 1776. As their presiding officer, in their effort of 1787, sat the man who had led the same American people in their successful effort, by the sacrifices of a Valley Forge and the battlefields of the Revolution, to make the declarations of that Statute the basic principle of American law. Prominent in the Convention was Hamilton, who had left college at seventeen to become a trusted lieutenant of the leader in that war which did make that Statute our basic law. Among the delegates were quite a few others who had played similar parts in that same war for that same purpose. Most of the delegates had played some part, entailing personal sacrifice and effort, in that same war and for that same purpose. With such an education in the school whose training men find it impossible to ignore, the school of actual life, it was mentally impossible that this body of men could either forget or ignore or disobey the basic American law, which then commanded them and still commands us, that no government in America can ever have or exercise any valid national power to interfere with human freedom except by direct grant from its citizens themselves. If the education of the leaders of the present generation had been the same, American history of the last five years could have been differently written in a later chapter herein.

Because the Convention was educated to know the Statute of ’76, the proposed grant of enumerated national powers in the First Article was necessarily referred to the only competent grantors, the American people themselves, assembled in their conventions.

Familiar as we are with the result of their effort to solve their great problem, a result told in the history of the ensuing one hundred and thirty-five years in America, it seems fitting here to have Madison describe the closing moment of that Philadelphia Convention, in his own words: “Whilst the last members were signing, Dr. Franklin, looking toward the president’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish, in their art, a rising from a setting sun. ‘I have,’ said he, ‘often and often, in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, and not a setting sun.’” (5 Ell. Deb. 565.)

The story of the actual making of that Constitution by the people of America, assembled in their conventions, is a marvelous story. No American can fully grasp what an American really is unless he personally reads that story, not as told even by the most gifted writer, but as told by the recorded debates in the very conventions themselves of the very Americans who created the nation which is America, made themselves its citizens and, as its citizens, made the only valid grants of enumerated national power, the grants in the First Article. In a later chapter, somewhat of that story will be told, mostly in the very words of those who made those grants. At this point, we are concerned only to set out the hour and the moment when American human beings, as such, in their greatest Revolution, exercised their exclusive ability to give their one government some national power to interfere with individual freedom.

Each of them was already a citizen of one of the existing nations. It was, however, as American human beings, always collectively the possessors of the supreme will in America, and not as citizens of any nation, that they assembled in the conventions and, in the exercise of that supreme will, created a new and one American nation, by becoming its charter members and citizens. That was the first and immediate effect of the signing of that Constitution in the ninth convention of the American people, the convention in New Hampshire, on June 21, 1788. That is the actual day of the birth of the American nation as a political entity. It is the day on which the American citizen, member of the American nation, first existed. While it is true that there yet was no actual government of the new nation, it cannot be denied that legally, from that June 21, 1788, there did exist an American nation, as a political society of human beings, and that its members were the human beings in the former nations of Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire. The very moment the Americans in those nine former nations had signed that Constitution of government, they had constituted themselves a nation and had become its citizens.

Simultaneously therewith, as its citizens, they had made their grant of enumerated national powers to interfere with their own human freedom. Simultaneously therewith, they had destroyed forever the absolute independence of their nine nations; they had kept alive those nations, as partially independent political societies, each to serve certain purposes of its members who still remained citizens of that political society as well as citizens of the new nation; they had taken from the government of each of those nations much of its national power, had given to each such government no new power whatever, but had left with it much of its former national power over its own citizens; they had kept alive the federation of nations, now a federation of partially independent states; they had made their own new national government also the federal government of that continuing federation and their own national Constitution also the federal Constitution of that continued federation; they had subordinated all those nine states and the government of each and of the federation to their own supreme will, as the citizens of the new nation, expressed in its Constitution. This was the meaning of the second section of the Sixth Article in the document, which they had signed, which reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The makers of the new nation are identified by the opening words of the document: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

It would be diverting, were it not somewhat pathetic, to hear that the Constitution was made by the states. From that quoted Preamble alone, volumes might be written to show the absurdity of such thought. It identifies the makers as “people” and not as political entities. It expressly says that its makers, “the people,” ordain it “in order to form a more perfect Union.” The states already had a perfect union of states. But the human beings or “people” of all America had no union of themselves. The only “people” in America, who had no union of themselves, identify themselves unmistakably when they say, “We the people of the United States, in Order to form a more perfect Union, etc.” They are the “people” or human beings of America, the whole people of America, the collective possessors of the supreme will which had enacted the Statute of ’76.