Citizen or subject?

by Francis X. Hennessy

Thus, whatever may have been the lack of knowledge on the part of our leaders and “constitutional” lawyers for the last five years, we ourselves know, with knowledge that is a certainty, that the ratifying conventions of 1787 and 1788 WERE the American people themselves or the citizens of the new nation, America, assembled in their respective states.

Our Supreme Court has always had the same knowledge and acted upon it.

The Constitution of the United States was ordained and established, not by the states in their sovereign capacities [the respective peoples or citizens of each State] but emphatically, as the preamble of the Constitution declares, by “the people of the United States” [namely the one people of America].... It was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority.... The people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact [between the citizens or members of the new nation], to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. (Supreme Court, Martin v. Hunter’s Lessee, 1 Wheat. 304, at p. 324.)

Instructed by experience, the American people, in the conventions of their respective states, adopted the present Constitution.... The people made the Constitution and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivisions of them. (Marshall, in Supreme Court, Cohens v. Virginia, 6 Wheat. 264.)

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. (Marshall, in Supreme Court, Barron v. Mayor of Baltimore, 7 Peters, 243.)

When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states. These powers proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. (Marshall, in the Supreme Court, Sturges v. Crowninshield, 4 Wheat. 122.)

We average Americans know and will remember the clear distinction, the substantial distinction, recognized by the great jurist, between “the people of America” and “the people of the several states,” although they happen to be the same human beings acting in different capacities, as members of different political societies of men. It is a matter of constant mention in the Supreme Court that we ourselves, in addition to our capacity as human beings, have two other distinct capacities, that of citizen of America and that of citizen of our respective state; that, as citizens of America, we alone validly give to its government any power to command us, and, as citizens of our particular state, we alone validly give to its government all its national power to command us. The decisions of the Supreme Court, in that respect, are mentioned elsewhere herein. Meanwhile, we average Americans understand these matters perfectly and will not forget them. We are quite accustomed, while retaining our status as free human beings, to be members of many different societies of men and, as the members of some particular society, to give to its government certain powers to interfere with our freedom.

We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other.... Experience made the fact known to the people of the United States that they required a national government for national purposes.... For this reason, the people of the United States ... ordained and established the government of the United States, and defined its powers by a Constitution, which they adopted as its fundamental law, and made its rules of action. The government thus established and defined is to some extent a government of the states in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the states; but beyond, it has no existence. It was erected for special purposes and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view.... The people of the United States resident within any state are subject to two governments, one state, and the other national; but there need be no conflict between the two. Powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. (Justice Waite, in Supreme Court, United States v. Cruikshank, 92 U. S. 542.)

It must seem remarkable to us average Americans, with the education we have acquired at this point, to realize that our leaders and “constitutional” lawyers have not known why only we ourselves, in our capacity as citizens of America, can give any new national power to interfere with our freedom and that we, for such new giving, must act, in the only way in which the citizens of America “can act safely, EFFECTIVELY, or wisely, on such a subject, by assembling in convention,” in our respective states, the very “conventions” mentioned for valid grant of such national power in the Fifth Article of the Constitution made by the citizens of America, so assembled in such “conventions.” Before dwelling briefly upon the accurate appreciation of that legal fact displayed by those first citizens in everything connected with the making of that Constitution and that Fifth Article, let us realize how well the leaders and great constitutional lawyers of other American generations between that day and our own did know this settled legal fact.

After the Americans in nine states had created the new nation and had become its citizens and had (in that capacity) granted the national powers of its First Article, the Americans in Virginia assembled to determine whether they also would become citizens of the new nation. As the president of the convention, in which they assembled, they chose Edmund Pendleton, then Chancellor of Virginia.