Citizen or subject?

by Francis X. Hennessy

No American citizen, now living or in the generations to come, if he values at all the human liberty which the entire Constitution was established to secure, can spend too much time in reading and understanding that short record. It is the record left by Madison himself, even though it be copied from the brief of the leading “constitutional” lawyer of 1920 who maintained his whole argument for the Eighteenth Amendment on the ground that we have been “subjects” of an omnipotent government, his clients, since the day, June 21, 1788, when that Fifth Article was enacted by the American people to secure “the Blessings of Liberty for themselves and their posterity.”

As we shall later find herein, it is the claim of all who believe the new Amendment to be in our Constitution, although they have hitherto not understood their own claim, that the words of the Article, which appear in that short record, are the words which changed the American individuals, free men from July 4, 1776, into subjects of an omnipotent government, composed of the legislative governments of a fractional part of the states. Moreover, as we shall also later learn herein, this absurd and amazing claim is based wholly on the monumental error of assuming, without the faintest suggestion or proffer of support for such an assumption, that the new wording of the Fifth Article, as proposed by Madison on September 10, changed the amending Article into a grant of ability to make every kind of Article. The monumental error fails to see that Madison merely added to the previous mention of the unlimited ability of the people or “conventions” a similar mention of the existing limited ability of the state legislative governments to make federal Articles or Articles which neither exercise nor grant power to interfere with human freedom. Moreover, as we shall also learn later herein, the extraordinary and unfounded assumption (that the amending Article was changed on September 10 into a grant of ability to make Articles instead of a recognition and mention of two existing different abilities, one of which had always been mentioned therein) has been hitherto concurred in by every one who has challenged the validity of the Eighteenth Amendment. They have only differed from the supporters of the new Amendment in contending that the impossible grant, absurdly imagined to have been made by the grantors to themselves as well as to state legislatures, was a grant of limited ability but did not include the ability to make an amendment such as the Eighteenth.

When we do come later herein to the briefs and arguments of the opponents and supporters of the supposed Eighteenth Amendment, we shall look in vain to find therein the faintest suggestion of a claim that there is anything in the record of September 10, 1787, to justify their extraordinary and unfounded assumption that the Fifth Article, on that day, was changed so as to make it a grant of power from the “conventions” of the people to the “conventions” of the whole American people and to the state legislatures. On the contrary, we shall find every opponent of the supposed new Amendment making easy the way of its supporters by joining in the common assumption of all and predicating every argument against the new Amendment on the same extraordinary assumption that the Fifth Article is a grant of power to the grantors and to the state governments. Not once, in any brief or argument of the most renowned lawyers in America, shall we find even the faintest knowledge of two facts which must be so if the Fifth Article is a grant of power to the two supposed grantees. That each of the two facts is a patent absurdity will not alter the logic that they must be facts, if the Fifth Article is a grant to those two grantees. The first patently absurd fact is that, if the Fifth Article is a grant, the “conventions” of 1788 granted to themselves, the supposed grantors, exactly the same omnipotent power to make all Articles, which the grantors (a supposed grantee) were exercising at the very moment when they made the Fifth Article. The second patently absurd fact, if the Fifth Article is a grant, is that the whole people of America, assembled in their “conventions,” after eleven years as free men, voluntarily relinquished that status to become, as the whole people of America, “subjects” of the same legislative governments who are one of the supposed donees of the absurd and imaginary grant. This remarkable fact follows as the logical conclusion of the concept that the “conventions” granted to the “conventions” and to the state governments, with Congress to determine which shall exercise it, the very omnipotent power which the people themselves (the supposed grantors) were then exercising in their “conventions” and which eleven years before they had denied to the British Parliament. When we later realize that none of our modern leaders saw either absurd fact to be the certain result of the concept that the Fifth Article is a grant, we average Americans ought certainly to be convinced that, if we wish to keep our individual rights in any matter, it is going to be necessary for us to understand for ourselves how our Constitution secures those rights to us.

Forewarned of such necessity, we return with renewed interest to the examination of the record of the day on which it is assumed that Madison suggested that the Fifth Article should be changed into a “grant” and then proposed to the American people, so that they might voluntarily relinquish their status as free men and become “subjects” of a government with omnipotent ability to legislate in restraint of their individual freedom “in all matters whatsoever.” It ought not to detract from our amusement that this remarkable proposal of such a “grant” (as our modern leaders see it) was to go to the American people in each state and there be approved by that people with the knowledge that the people in that particular state, on the occasion of a future proposal, might not elect a single member of the legislative governments who would exercise that omnipotent power over their every individual right.

Our amusement is not lessened when we find that the supposed “grant” was suggested by Madison and seconded by Hamilton. The Philadelphia Convention was being held in the America which had just emerged from an eight year Revolution to establish the doctrine that no government could be omnipotent in its ability to interfere with individual freedom. The Convention itself had devoted three months and ten days, before the day in question, to bitter dispute about giving even enumerated powers of that kind to the American government mentioned in the First Article. It is therefore, with great amusement but with serious intent never to forget, that we note that not a single voice was raised in the Convention either to uphold or to protest this supposed and absurd “grant” of omnipotence to an entirely different government. On the contrary, as we note with intent never to forget, the newly worded Article was treated by the Convention as if every important matter in it had been settled before the state governments were even mentioned in it as makers of the kind of Articles which they already had the power to make, federal Articles. As soon as the newly worded Article had been suggested by Madison and Hamilton, the Article which Madison himself describes as a constitutional mode for the exercise of existing abilities to make Articles, only one change (utterly unimportant now) was suggested in the new wording. This was the suggestion that the Article should not provide a constitutional mode in which existing ability to interfere with slavery could be constitutionally exercised prior to the year 1808. This change was immediately made by the Convention. Then, without the slightest objection to any other part of the supposed absurd “grant,” the Convention approved the newly worded Article.

From the absence of one word of protest we quite clearly realize that no man in that Convention so misconstrued the simple statement of Madison’s Fifth Article as to read into it an imaginary “grant” of any ability whatever to the state legislative governments. We realize that these men, who were accurate thinkers, knew that the “conventions” named in this Madison Article were exactly the same “conventions” which Philadelphia had already named in what we know now as the Seventh Article. We realize that they knew at once, when Madison proposed his Article, that the “conventions” named in it, like the same “conventions” named in the Seventh, were “We, the people” of America, named in the Preamble. And, from a moment’s reflection, we are aware that the delegates at Philadelphia immediately knew that Madison was not making the absurd suggestion that the American people, the “conventions” of the Seventh and Madison’s new Article, should grant, in the very “conventions” of the Seventh, to themselves, anything whatever of power, either all or part of the power which they would be then exercising in those “conventions.” From which it follows, as the night the day, that the delegates also knew that if Madison’s Article was not a grant by the “conventions” to the “conventions,” it was not a grant to the “legislatures.” For which reason we will not dwell at all upon the obvious fact that there is not the slightest suggestion of a word of grant in the Fifth Article.

Before emphasizing the absurdity of the thought that the Americans at Philadelphia ever intended the plain statement of the Fifth Article to be a “grant” of power of any kind, it seems proper that we should grasp at once what it clearly was understood by them to be. Their understanding and knowledge of its meaning become very clear to us, when we read it, as they heard it from Madison, fresh from their great debate as to the grant of enumerated powers in their First Article and their proposal of a ratification by “conventions” as the only valid mode of ratification for an Article which grants power to interfere with human freedom. We recall now that, when Madison suggested his Fifth Article to them, on September 10, the echoes were still ringing of the sound statements of Madison and others that Philadelphia must propose a mode of ratification by the people or “conventions” because legislatures never could be competent, in America, to make Articles which did constitute government by granting power to interfere with human freedom. When we read Madison’s Fifth Article, with the same statements still fresh in our minds, we realize at once how the delegates at Philadelphia recognized, in the Madison Article, the meaning of every reference to the duties imposed upon, not the powers granted therein, to Congress. The delegates had met at Philadelphia with purpose and intent to draft and propose constitutional Articles in their judgment best designed to secure human liberty to Americans, and then, after they had drafted their Articles and knew the nature of such Articles, whether national or federal, to propose a mode of ratification in which their proposed Articles would be made by those competent to make them.

When September 10 had come they had finished their work of drafting their Article, which constituted government, the First Article. For the purpose of reaching their decision as to the valid mode of ratification for an Article of that kind, they had considered and discussed the existing unlimited ability of the “people” or “conventions” to make all Articles, and the existing limited ability of the state legislatures to make some. The unerring decision which they had made was that their Articles would not be validly made, because the First Article constituted national government of men, unless they proposed a mode of ratification by the “conventions” of the American people.

We note, with intent to remember, that they were well aware that drafting and proposing an Article did not make it valid or part of a Constitution and that proposing a mode of ratification did not make it a valid mode, unless the ratifiers were competent to make the proposed Article. We recall that Wilson, who appears in the brief record of September 10, later made clear the knowledge of those at Philadelphia that their proposal of Articles and their proposal of a mode of ratification could not make either valid, that the making of a proposal is not the exercise of any power.

In the Pennsylvania convention he said: “I come now to consider the last set of objections that are offered against this Constitution. It is urged that this is not such a system as was within the powers of the Convention; they assumed the power of proposing.... I never heard, before, that to make a proposal was an exercise of power.... The fact is, they have exercised no power at all; and, in point of validity, this Constitution, proposed by them for the government of the United States, claims no more than a production of the same nature would claim, flowing from a private pen.” (2 Ell. Deb. 469-470.)