Citizen or subject?

by Francis X. Hennessy

Among the national powers, which are enumerated in the First Article, there is one which (whenever operative) approximates the extensive police power of a state government to interfere with the freedom of its citizens. That is the war power of the Government of America. As the purpose of the Constitution of the American Government is to protect the freedom of the American and as such freedom needs effective protection from foreign attack, the Americans of that earlier generation made the war power of their government almost as unlimited as that of a despotic government. All history and their own human experience had taught them that the war power, if it was to be effective for their protection, must be practically unlimited. If we grasp this extent of the American war power, we realize why our sole American government, without the grant of a new national power to it, could validly enact what we know as the War Time Prohibition Statute, although without such a new grant, it was powerless to enact what we know as the Volstead Act or National Prohibition for time of peace. It is because the citizens of each state, in their Constitution of their national government, had given to it a general (although specifically limited) ability to interfere with their own human freedom in most matters, that each state government could validly make prohibition laws for its own citizens. It is because the American citizens had not given to their government any such general ability to interfere with their freedom, that the American Government, for any time except that of war, could not validly enact National Prohibition for the American people without a new grant of a new national power directly from its own citizens. In the days of those earlier Americans, the legal necessity of deriving such power directly from the American citizens themselves was “felt and acknowledged by all.” In our day, among our leaders and our “constitutional” lawyers, there was none so humble as to know or honor this basic legal necessity.

The other enumerated national powers, which American citizens ever gave their national government, are few in number, although they vested a vast and necessary ability in that government to protect the freedom of its citizens and promote their happiness and welfare by laws in certain matters. For our present purpose, they need only be mentioned. They require no present explanation. They are the power to make all treaties with foreign nations or governments; the power to regulate commerce, except the commerce within any one particular state; and the power of taxation.

Having now some accurate conception of the limited and specific quantum of national power which American citizens consented to grant in those earlier days, it is pertinent to our inquiry, as to whether we (their posterity) have again become subjects, to dwell briefly upon the reluctance with which they made even those grants. In considering that attitude, it is essential always to keep in mind the status of the citizens of each state, at that time, and their relation to their own national government and the relation of each state to the federal government of all the states. Under the existing system of governments, the citizens of each state were subject to no valid interference whatever with their own individual freedom except by laws of a legislature, every member of which they themselves elected and to which they themselves granted every power of such interference which that legislature could validly exercise. To those free men in those free states, men educated in the knowledge of what is real republican self-government, these two facts meant the utmost security of their human rights. No government or governments in the world, except their own one state government could interfere at all directly with those rights, and they had given to, and they could take from, that government any power of that kind. As for the respective states and the relation of each to the federal government of all, each state had an equal voice in the giving to or taking from that government any federal power and each had an equal voice, in the federal legislature, in exercising each valid federal power. These existing facts, respectively of vast importance to the citizens of each state and to its government, influenced, more than any other facts, the framing of the new Articles, particularly the First Article, at Philadelphia and the opposition to those Articles in the conventions in which the people of America assembled.

The First Article, as we know it, starts with the explicit statement that all national powers, which are granted by Americans in that Constitution, are granted to the only American legislature, Congress. It then provides how the members of each of the two bodies in that legislature shall be elected. It then enumerates the granted powers, confining them to specific subjects of interference with the human freedom of the American citizen. It then, for the particular security of that human freedom, imposes specific restraints upon that legislature even in the exercise of its granted national powers. Finally, it prohibits the further exercise of specific powers by any state government.

No American, who reads the debates of the Philadelphia Convention of 1787, can fail to realize that the grant of any national power,—power to interfere with human freedom—is the constitution of government. The First Article was the subject of almost all the discussion of those four months at Philadelphia. Seemingly invincible differences of desire and opinion, as to who should elect and the proportion (for citizens of the new nation and for states of the continuing federation) in which there should be elected the members of the legislature which was to exercise the granted national powers, almost ended the effort of that Convention. This was in the early part of July. For exhausting days patriotic men had struggled to reconcile the conflict of desire and opinion in that respect. One element, mainly from the larger states, insisted that the members (from each state) of both branches of the new legislature should be proportioned to the number of Americans in that state. The other element, mainly from the smaller states, insisted that the Americans in each state should have an equal representation in each branch of the new legislature. Each element was further divided as to who should choose the members of that legislature. Some held that the people should choose every member. Others held that the state legislatures should choose every member. Still others held that each state should, by its legislature, choose the members of one branch, so that those members might speak for that state, and that the American people themselves, divided into districts, should choose the members of the other branch, so that those members might speak for the general citizens of America.

Mason of Virginia, later one of the great opponents of the adoption of all the Articles, insisted that election by the people was “the only security for the rights of the people.” (5 Ell. Deb. 223.)

Madison “considered an election of one branch, at least of the legislature by the people immediately, as a clear principle of free government.” (5 Ell. Deb. 161.)

Wilson of Pennsylvania “wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority.” (5 Ell. Deb. 160.) Later he said, “If we are to establish a national government, that government ought to flow from the people at large. If one branch of it should be chosen by the legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them.” (5 Ell. Deb. 167.)

Dickenson of Delaware “considered it essential that one branch of the legislature should be drawn immediately from the people, and expedient that the other should be chosen by the legislatures of the states.” (5 Ell. Deb. 163.)

Gerry of Massachusetts, consistent Tory in his mental attitude toward the relation of government to people, insisted that “the commercial and moneyed interest would be more secure in the hands of the state legislatures than of the people at large. The former have more sense of character, and will be restrained by that from injustice.” (5 Ell. Deb. 169.)