CHAPTER V
THE CONSENT OF THE GOVERNED
We average Americans have now lived with those earlier Americans through the years in which they were educated to their making of the American nation, to their constitution of its only general government with national powers.
We have been with them in those early days when legally they were subjects, inasmuch as their British Legislature at London had unlimited ability, not delegated by them, to interfere with the individual human freedom of each of them and all of them. We have realized that, in those very early days, despite their legal status, those Americans were actually and in substance citizens of their own respective communities, inasmuch as the legislatures which actually did interfere with such freedom were the legislatures of their own choosing to which they themselves delegated such powers of interference.
We have been with them when their British Government began its attempt to exercise its omnipotent ability. We have seen the inevitable result, the American Revolution, by a people, educated through actual experience in self government, against the attempt of any government to exercise a national power not directly granted by its citizens. We have seen their invincible determination, in an eight year war of sacrifice, that no government in America shall ever have any national power except by direct grant from its citizens. We have seen them, in their Statute of ’76—never repealed—declare this principle to be the basic law of America.
We have been with them when the Americans in each former colony constituted for themselves a government and gave it limited ability to interfere with their individual freedom. Living with them at that time, we have realized how accurately they then grasped the vital fact that the granting of such national ability is the constitution of government and that no people ever are free or self-governing unless every grant of that kind is made directly by the citizens of the nation themselves.
We have realized that, in constituting their respective national governments, the citizens of each of those nations withheld from its government many possible national powers, such, for example, as those mentioned in the various Bills of Rights or Declarations of human liberty in the different written constitutions of those nations. We have realized—a vital legal fact never to be forgotten—how accurately those Americans and their governments knew that not all of those sovereign legislatures of those independent nations could, even together, exercise or grant a single one of those possible national powers reserved by the people to themselves. We have also realized—again a legal fact which should have sunk deep into our souls—that the very national powers, which the citizens of each of those nations had granted to its legislative government, were to be exercised only by that legislative government and could not be delegated by it to any other government or governments. “The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.)
We have lived with those Americans in those Revolutionary days when the legislative governments of their thirteen nations created “a distinct and independent sovereignty” to govern a federal union of those nations but not to govern, by the exercise of national powers, the human beings who were the American people. We have seen those legislative governments then aware of their existing ability, each as the representative or attorney in fact of its own nation for all federal purposes, to vest federal powers in a federal government. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent.” (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.) But those legislative governments knew that they could not delegate to any government even those limited national powers “delegated to the state sovereignties” by their respective citizens. “The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” (Marshall, supra.) As to the national powers not delegated but reserved by the people to themselves, the legislative governments of that day (as well as the American people) knew what the Supreme Court still knew in 1907 as to national powers similarly withheld from the later national government of America:
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. (Justice Brewer in Turner v. Williams, 194 U. S. 279.)
We have been with those Americans in the few short years in which they learned that the maximum of protected enjoyment of individual freedom could never be obtained through a general government possessing naught but federal powers, the only kind of power which any American government can ever obtain through grants made by governments or, in any way, except by direct grant from its citizens themselves.
We have been with those Americans through the greatest Revolution of all, when their leaders and the average Americans themselves, still determined to obtain that maximum protected enjoyment of individual human liberty and awake to the knowledge that it could not be obtained through a general government with naught but federal powers, rose again to the great occasion. We have been with them when, outside of all then existing constitutions and outside of all written American law except the Statute of ’76, those Americans, at the suggestion of their American leaders, made themselves the members of one great political society of human beings, the nation which is America. We have been with them when they gave the government of America, by direct grant from themselves, such enumerated national powers to command them, the citizens of America, as they—not the state governments—deemed wise and necessary to protect their human liberty against all oppressors, including all governments. We have been with them—and we have marveled—while they themselves actually made, by their own action, their amazingly effective distribution of all delegated powers to interfere with individual freedom.