We average Americans, legally bound (as American citizens) by no command (interfering with our human freedom) except from our only legislature at Washington and then only in those matters in which we ourselves, the citizens of America, have directly given it power to command us, now intend insistently to ask all our governments, the supreme one at Washington and the subordinate ones in the states of which we are also citizens, exactly the same question which Wilson asked.
Daniel Webster asked almost exactly the same question of Hayne and history does not record any answer deemed satisfactory by the American people. Webster believed implicitly in the concept of American law stated by those who made our Constitution. Like them, and unlike our “constitutional” lawyers, he knew that the Tory concept of the relation of men to their government had disappeared from American basic law.
“This leads us to inquire into the origin of this government, and the source of its power. Whose agent is it? Is it the creature of the state legislatures, or the creature of the people?... It is, sir, the people’s constitution, the people’s government—made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. The states are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the state legislatures, as political bodies, however sovereign, are yet not sovereign over the people.... The national government possesses those powers which it can be shown the people have conferred on it, and no more.... We are here to administer a Constitution emanating immediately from the people, and trusted by them to our administration.... This government, sir, is the independent offspring of the popular will. It is not the creature of state legislatures; nay, more, if the whole truth must be told, the people brought it into existence, established it, and have hitherto supported it, for the very purpose, amongst others, of imposing certain salutary restraints on state sovereignties.... The people, then, sir, erected this government. They gave it a constitution, and in that constitution they have enumerated the powers which they bestow upon it.... Sir, the very chief end, the main design for which the whole constitution was framed and adopted, was to establish a government that should not be obliged to act through state agency, depend on state opinion and state discretion.... If anything be found in the national constitution, either by original provisions, or subsequent interpretation, which ought not to be in it, the people know how to get rid of it. If any construction be established, unacceptable to them, so as to become practically a part of the constitution, they will amend it at their own sovereign pleasure. But while the people choose to maintain it as it is—while they are satisfied with it, and refuse to change it—who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction, OR OTHERWISE?... Sir, the people have not trusted their safety, in regard to the general constitution, to these hands. They have required other security, and taken other bonds.” (From Webster’s reply to Hayne, U. S. Senate, January, 1830. 4 Ell. Deb. 498 et seq.)
We average Americans, now educated in the experience of the average American from 1776 to the beginning of 1787, find much merit and comfort in Webster’s understanding of basic American law. He had a reasoned and firm conviction that Americans really are citizens and not subjects. His conviction, in that respect, while opposed to the convictions of our leaders and “constitutional” lawyers, has seemed to us quite in accord with the convictions of earlier leaders such as Iredell and Wilson and the others, and also with the decisions of our Supreme Court.
Briefly stated, it has become quite clear to us that the American people, from 1776 to 1787, were fixed in their determination to make our basic American law what the conviction of Webster and the leaders of every generation prior to our own knew it to be. Let us go back, therefore, to the Americans in the Philadelphia convention of 1787, who worded the Constitution which is the supreme law of America, and ascertain how their knowledge of fundamental American law dictated the wording of their proposed Seventh Article.
CHAPTER VIII
PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES”
We recall how clearly the Americans at Philadelphia, in 1787, knew that any grant of national power to interfere with the freedom of individuals was the constitution of government. We recall the bitter conflict of opinion, threatening the destruction of the assembly, over the manner of choosing the members of the legislature to exercise whatever powers of that kind the citizens of America might grant. We recall the great opposition to the proposal of a grant of any power of that kind and to the particular proposal of each of the enumerated powers of that kind, all embodied in the First Article.
We have thus come to know with certainty that the minds of the Americans at Philadelphia, during those strenuous four months, were concentrated mainly upon a proposal to grant some national power to interfere with the human freedom of all Americans. In other words, we have their knowledge that their proposed First Article, by reason of its grants of such power, would constitute a new nation and government of men, if those grants were validly made by those competent to make such grants.
Under which circumstances, we realize that it became necessary for them to make a great legal decision, in the construction of basic American law, and, before making that decision, which was compelled to be the result of judgment and not of will, accurately to ascertain one important legal fact. Indeed, their decision was to be the actual conclusion reached in the effort to ascertain that legal fact. This was the single question to which they must find the right answer: “Under our basic American law, can legislatures ever give to government any power to interfere with the human freedom of men, or must every government in America obtain its only valid powers of that kind by direct grant from its own citizens?”
It is easy for us to state that they should have known that the answer to that question was expressly and authoritatively given in the Statute of ’76. It was there plainly enacted that every just power of any government must be derived from the direct grant of those to be governed by its exercise. Yet our own leaders for the last five years have not even asked the question, much less known the right answer.