Citizen or subject?

by Francis X. Hennessy

The proposal which came from Philadelphia in 1787 was absolutely without precedent in history. Simply stated it was that, outside of all written law save the Statute of ’76, the entire American people, who were not one nation or its citizens, should make themselves one nation and the supreme nation in America; that, simultaneously with the birth of this new nation, they should destroy the complete independence of each existing society or nation, in some one of which each American was a member or citizen, but keep alive each such society or former nation, subject to the supreme will of the citizens of the new nation; that they should keep alive the federation of those old nations also subject to the supreme will of the citizens of the new nation; that they should leave with each former nation (now to be a subordinate state) and to its citizens much of its own and their own national power to govern themselves on many matters without interference from any government or governments outside of that state; that they should leave with those continuing states and their governments their existing and limited ability to give federal power to government by making federal Articles in the Constitution of federal government; that they should, as the citizens of America, give to no state or states or their respective governments any new power of any kind, leaving to the citizens of each state to determine (within the limits fixed by the Constitution of the American citizens) how much power its own national government should have to interfere with the individual freedom of its own citizens; that—most unique and marvelous conception of all—these citizens of America, simultaneously with the birth of the new nation and in their capacity as its citizens, should grant to its government, the only government of those citizens of America, definite and enumerated national powers to interfere with their individual freedom; and that—probably the most important and the least remembered feature of the whole proposal—all other possible national powers over themselves, as citizens of America, should be reserved exclusively to themselves and be exercised or granted by them alone, “in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention.” (Marshall, in the Supreme Court, M’Culloch v. Maryland, 4 Wheat. 316.)

We have not forgotten that these Americans, to whom that proposal was made, did act upon it in that only effective way, by assembling in their conventions.

To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.)

In view of the startling fact that our leaders and “constitutional” lawyers have neither felt nor acknowledged the necessity that new national powers of that government, new powers to interfere directly with the individual freedom of its citizens, must be derived “directly” from those citizens, in the only effective way in which they can act, on such a subject, by assembling in their conventions, it is the duty of ourselves, the average American citizens of this generation, to insist that they learn this legal fact. When they shall have learned what all Americans once knew, the freedom of the American individual will be as secure as it was in 1790. No legislature, no matter whence comes a suggestion to the contrary, will dare to issue any command except to its own citizens, and only to them in matters on which those citizens have granted power to that legislature to command them.

That we may intelligently so insist, and that our insistence may be made in the proper place and at the proper time, let us briefly consider on what subjects, in the making of our Constitution, our predecessors, as American citizens, granted their enumerated national powers to our only government of all Americans. Like those predecessors, assembled in their conventions, we find all those enumerated powers in the First Article of the Constitution proposed from Philadelphia.

In substance they are the war power; the power of making treaties; the power of regulating commerce between ourselves and all people outside of America and between the citizens of the different states; the power of taxation; and all other incidental and supplementary powers necessary to make laws in the execution of these enumerated and granted powers.

Noticeably absent from these enumerated powers granted to the only general government of the citizens of America is that power, then existing and still in the national government of each nation or state, known (rather inaccurately) as the police power or the power to pass any law, in restraint of individual human freedom, reasonably designed, in the judgment of that particular legislature, to promote the general welfare of its own citizens. It seems hardly necessary, at this moment, to refer to the innumerable decisions of the Supreme Court that such power was not among those enumerated and granted to the American government by its citizens. It was solely because such power had definitely not been granted by them to it that the government of the American citizens made its famous proposal that a portion of such power, in relation to one subject, be granted to it in the supposed Eighteenth Amendment of our Constitution.

As a matter of fact, the police power of any government is really all its power to pass any laws which interfere with the exercise of individual freedom. In that respect, the American people made a marked distinction between the quantum of that kind of power which they granted to their one general national government and the quantum they left in the national government of the citizens of each state. The quantum they granted to their own government was definitely enumerated in the First Article. On the other hand, except for the limitations which they themselves imposed upon the respective governments of each state, they left the citizens of each state to determine what quantum the government of that state should have.

In other words, the police power of the American Congress is strictly limited to the enumerated powers of that kind granted by the citizens of America. And, although the fact does not seem to be generally known, it is because the First Article vests in the sole Legislature of the whole American people nothing but enumerated powers to interfere with the freedom of the individual American that our American government has received its universal tribute as a government of nothing but enumerated powers over a free people, who are its citizens.

In the Constitution are provisions in separate Articles for the three great departments of government,—legislative, executive, and judicial. But there is this significant difference in the grants of powers to these departments: the First Article, treating of legislative powers, does not make a general grant of legislative power. It reads: “Article one, section one. All legislative powers herein granted shall be vested in a Congress,” etc.; and then, in Article 8, mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers. (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206 U. S. 46.)