Citizen or subject?

by Francis X. Hennessy

On June 25, Wilson, at some length, opposed the election of senators by the state legislatures. He stated that: “He was opposed to an election by state legislatures. In explaining his reasons, it was necessary to observe the two-fold relation in which the people would stand—first, as citizens of the general government; and, secondly, as citizens of their particular state. The general government was meant for them in the first capacity; the state governments in the second. Both governments were derived from the people; both meant for the people; both therefore ought to be regulated on the same principles.... The general government is not an assemblage of states, but of individuals, for certain political purposes. It is not meant for the states, but for the individuals composing them; the individuals, therefore, not the states, ought to be represented in it.” (5 Ell. Deb. 239.)

There came a day, early in that memorable July, when all hope of continuing the Convention was almost abandoned, by reason of the difference of desire and opinion on this one subject. Let us average Americans of this generation remember that this one subject was merely the decision whether the people were to choose all the members of the legislature which was to exercise granted national powers to interfere with the human freedom of the citizens of America. Happily for all of us, there were many patriotic as well as able leaders at Philadelphia. From their patriotism and ability they evolved the compromise, on that question, which is expressed in their First Article. When it came from Philadelphia, it provided that each state should have equal representation in the Senate, senators to be chosen by the state legislatures, and that the House of Representatives should consist of members chosen directly by the citizens of America, in districts proportioned to the number of those citizens in it.

No one has read the recorded debates of the Convention which proposed and the conventions which adopted our Constitution without learning that the Americans in those conventions knew that the grant of enumerated national powers in the First Article WAS the constitution of the American government of men. In and out of the Philadelphia Convention, the greatest and most persistent attack upon its proposal was the insistent claim that it had acted wholly without authority in proposing an Article which purported to grant any such national power to interfere with the human freedom of all Americans. Since July 4, 1776, no legislature or legislatures in the world had possessed any national powers over all Americans. The Americans in each existing nation elected every member of the one legislature which had any such power over them. It was felt and stated at Philadelphia, it was felt and urged and insisted upon, sometimes with decency and reason, sometimes with bitterness and rancor and hatred, between the closing day at Philadelphia and the assembling of various Americans in each state, that the Americans in each state would be unwilling to give any such national power over themselves to any legislature whose members were not all elected by the people in that state. In all the conventions which adopted the Constitution, the one great object of attack was the grant even of enumerated powers of a national kind to a legislature whose members would not all be chosen by the Americans in the state in which the convention was held. The record of the Virginia convention fills one entire volume of Elliot’s Debates. Almost one-half of the pages of that volume are claimed by the eloquent attacks of Patrick Henry upon those grants of enumerated powers in that First Article. The basis of all his argument was the fact that this grant of national power in the First Article would make him and all his fellow Virginians, for the first time since the Declaration of Independence, citizens of a nation—not Virginia—who must obey the laws of a legislature only some of whose members Virginians would elect.

“Suppose,” he says, “the people of Virginia should wish to alter” this new government which governs them. “Can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States. The founders of your own Constitution made your government changeable: but the power of changing it is gone from you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold those rights have right and power to keep them. It is not the particular government of Virginia: one of the leading features of that government is, that a majority can alter it, when necessary for the public good. This government is not a Virginian, but an American government.” (3 Ell. Deb. 55.)

How forceful and effective was this objection, we average Americans of this generation may well realize when we know that the Constitution was ratified in Virginia by the scant majority of ten votes. In New York and Massachusetts and other states, the adoption was secured by similar small majorities. In North Carolina, the first convention refused to adopt at all.

Furthermore, it is recorded history that, in Massachusetts, in Virginia, in New York, and elsewhere, the vote of the people would have been against the adoption of the Constitution, if a promise had not been made to them by the advocates of the Constitution. It was the historic promise that Congress, under the mode of procedure prescribed in Article V, would propose new declaratory Articles, suggested by the various conventions and specifically securing certain reserved rights and powers of all Americans from all ability of government to interfere therewith. This historic promise was fulfilled, when the first Congress of the new nation proposed the suggested declaratory Articles and ten of them were adopted. These are the Articles now known as the first ten Amendments. It has been settled beyond dispute, in the Supreme Court, that every one of the declarations in these ten Articles was already in the Constitution when it was originally adopted by the citizens of America.

The most important declaration in those amazingly important ten declarations, which secured the adoption of our Constitution, is the plain statement that every national power to interfere with the human freedom of Americans, not granted in Article I, was reserved to the American people themselves in their capacity as the citizens of America. That is the explicit statement of what we know as the Tenth Amendment. In itself, that statement was but the plain and accurate echo of what was stated by the American people (who made the enumerated grants of such powers in Article I) in the conventions where they made those grants. Their statement was nowhere more accurately expressed, in that respect, than in the resolution of the Virginia Convention, which ratified the Constitution. That resolution began, “Whereas the powers granted under the proposed constitution are the gift of the PEOPLE, and every power NOT GRANTED thereby remains with THEM, and at THEIR will, etc.” (3 Ell. Deb. 653.)

After the same statement had been expressly made (with authoritative effect as part of the original Constitution) in that Article which we know as the Tenth Amendment, it was again and again echoed, in the plainest language, from the Bench of the Supreme Court.

As far back as 1795, in the case of Vanhorne’s Lessee vs. Dorrance, 2 Dall. 304, Justice Patterson stated that the Constitution of England is at the mercy of Parliament, but “in America, the case is widely different.”... A Constitution “is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand.... The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move.... Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature, repugnant to the Constitution, is absolutely void.”

To us average Americans, who have lived with those earlier Americans through the days in which they constituted their nation and distributed all granted national powers between governments in America and reserved all other general American national powers exclusively to themselves, the Virginia Resolution, the Tenth Amendment, and the quoted language of the Circuit Court are in strict conformity with the education we have received.