Citizen or subject?

by Francis X. Hennessy

If this fact had been kept clearly in mind by our modern leaders and lawyers, the history of the supposed Eighteenth Amendment would never have been written. When the whole American people assembled in their conventions in their respective geographic states, they did not assemble therein as the citizens of their respective states. It is true that the Americans, who assembled in any particular convention, happened to be citizens of a particular state. But they were also part of the whole American people, whose act as a whole people had freed all the colonies and had permitted the Americans in each colony to constitute a nation for themselves. And, when the Americans in each convention assembled, it was to decide whether that part of the American people, which resided in that state, would agree with the American people residing in other states to become members and citizens of an entirely different society of men and grant to the government of the new society power to interfere with the individual rights of the members of the new society.

How could the “citizens” of an independent nation, in their capacity as such citizens, become “citizens” of an entirely different nation, with an entirely different human membership or citizenry? If the individual members of a large athletic club in the City of New York should assemble in its club house to determine whether they, as individual human beings, should join with the human members of a number of other athletic clubs and create a large golf club, with a large human membership, and become members of that large golf club, would any of them entertain the absurd thought that he was becoming a member of the golf club in his capacity as a member of his existing and smaller athletic club? This is exactly what happened when the American people as a whole assembled in their conventions and decided to become members or citizens of the new and larger political society of men, while still remaining members and citizens of their respective smaller societies of men.

The vital distinction between the citizen of America and the citizen of a state, although oftentimes one is the same human being, is probably known to many of the modern leaders and lawyers who have considered and argued about the supposed Eighteenth Amendment. But it has been wholly ignored in every argument for or against the existence of that Amendment. As a matter of fact, that vital distinction has always been so important a part of our American institutions that it has been the subject-matter of repeated decisions in the Supreme Court. It is a distinction amazingly important, in substance, to individual freedom in America. So true is this that one of the most important Amendments ever made to the federal part of our Constitution was primarily intended to require that every state must extend to the “privileges or immunities of citizens” of America the same respect and protection which the American Constitution had previously only required that each state must extend to the citizens of the other states.

When the conventions made the original constitution, Section 2 of Article IV commanded that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” After the Civil War had closed, it quickly was realized that this federal command of the Constitution did not protect the citizens of America in any state. And so this command was added to the federal part of the Constitution by the Fourteenth Amendment, namely, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens” of America.

It would be idle to repeat here the famous Supreme Court decisions in which that Court has been obliged to dwell upon the important result accomplished by this vital change in the federal part of our Constitution. In such cases as the Slaughter House Cases, 16 Wall. 36, Paul v. Virginia, 8 Wall. 168, Re Kemmler, 136 U.S. 436, U.S. v. Cruikshank, 92 U.S. 542, Blake v. McClung, 172 U.S. 239, Maxwell v. Sow, 176 U.S. 581 and numerous other cases the important decisions have turned entirely upon the vital distinction between a citizen of America and a citizen of a particular state, even though the same man had the two capacities. Each decision turned upon the fact that the protection given to him in one capacity, by some constitutional provision, did not extend to him in the other capacity.

If all this had not been forgotten and ignored during the five years which began in 1917, the story of that five years would have been entirely different. Everyone would have known that the respective attorneys in fact for societies or states could not grant new power to interfere with the individual freedom of the members of an entirely different society, America.

There never was a day at Philadelphia in 1787 when the clear-minded Americans did not remember and realize this vital distinction between Americans, in their capacity as members of their respective existing societies, and Americans, in their capacity as members of the prospective society of the whole American people. There never was a day when they did not realize that the members of the proposed new and supreme society of men would never have but one attorney in fact for any purpose, the government at Washington, while the members of each small and inferior society would still have, as they already had, in their capacity as such members, their own attorney in fact, their own government.

One instance alone is sufficient to show how that Philadelphia Convention never forgot these important things. When the Committee of Detail, on August 6, 1787, reported to the Convention the first draft ever made of our Constitution, the Preamble read: “We, the people of the states of New Hampshire, Massachusetts, etc.” (enumerating all the states), “do ordain, declare, and establish, the following constitution for the government of ourselves and our posterity.” (5 Ell. Deb. 376.) But, so that future generations, like our own, should not ignore the fact that it was not the people of the respective states but the whole people of America who made the Constitution, before the proposal was made from Philadelphia, the Preamble, identifying the makers of the Constitution, was changed to read, “We, the people of the United States,”—the whole people of the new nation, America.

In the Virginia convention, Patrick Henry put the clear fact all in one pithy statement. He made that statement in one of his eloquent arguments against ratification of the Constitution. Many Americans today do not know that Patrick Henry was the most zealous opponent of the proposed Constitution. He was a citizen of the nation of Virginia. His human liberty as an individual could not be interfered with by any government or governments in the world except the Virginia government and only by it, under grant of national power to it from him and his fellow citizens of Virginia. That is exactly the status which he wished to retain for himself and which he insisted was the best security for individual freedom of all Americans in Virginia. “This is an American government, not a Virginia government!” he exclaimed. Nothing could more clearly express his knowledge, the common knowledge of all in that day, that he and his fellow Americans in that convention were being asked as Americans, not as citizens of Virginia, to constitute a new nation of the American people and a national government for that people.

That is why the Tenth Amendment, responsive to the demand of that Virginia convention and other similar conventions of the American people, names the citizens of the respective states as one class of reservees and the citizens of America as the great reservee and “most important factor” in the Tenth Amendment. This is the plain meaning of the language of that Tenth Amendment, to those who know what America is, where that language reads “to the states respectively, or to the people.” The word “respectively” is pointedly present after the word “states” and it is pointedly absent after the word “people.” Nothing could make more clear, to those who do not forget that the citizens of each state were the state itself, that the words “to the states respectively” mean to the respective peoples or citizens of each state and that the words “or to the people” mean to the people or citizens of America, in that capacity.