Citizen or subject?

by Francis X. Hennessy

The people of these United States constitute one nation. They have a government in which all of them are deeply interested. (Justice Miller in the Supreme Court, Crandall v. Nevada, 6 Wall. 35.)

As in any other republican nation, all national powers must be granted by its members or citizens. Any future national power, not granted by the citizens themselves, will be neither just nor valid because power of the American government to interfere with the freedom of the American citizen will not have been granted by those to be governed by its exercise.

But, when the whole American people leave these “conventions” as the united citizens of America, although it will be wise and proper and necessary that American citizens shall hereafter assemble in “conventions” in their respective states for the making of new proposed grants of power to interfere with their freedom, it will no longer be necessary that a “Yes” from every “convention” should be given to any future grant of such power. When the whole American people assembled in those first conventions, a “Yes” from every “convention” was necessary because that “Yes” meant the willingness of the Americans in that state to become citizens of America. But, once they all have become its citizens, it is in that capacity—and not as citizens of each respective state—that the American government will interfere with their individual freedom.

And it now dawns upon us, probably for the first time, how imperative it is that the new Constitution should contain an explicit command, prescribing how the vote of each “convention” should count and how many “convention” votes should be sufficient and necessary for any future proposed grant of power to interfere with the freedom of American citizens. This brings home to us the impressive and important meaning of the words “in three fourths thereof” after the word “conventions” in the Fifth Article.

If they had not been written therein by the genius of the men at Philadelphia, the method of counting the vote of each “convention” and the number of “convention” votes CONSTITUTIONALLY requisite hereafter for a new grant of national power would be a matter of infinite dispute. And so we recognize and pay our tribute, as we sit in one convention of the first American citizens, to the wonderful foresight of Madison and Hamilton and their colleagues at the Philadelphia Convention which has just completed its labors. That tribute is evoked by the words “three fourths thereof” after the word “conventions.”

We see that these words end all possibility of dispute in two important respects where dispute would be certain if the CONSTITUTIONAL mode of procedure did not contain our command that, when future “conventions” are asked for further grant of power to interfere with our individual freedom, the “Yes” of each convention shall count as one “Yes” and a “Yes” from three fourths of the “conventions” shall be both necessary and sufficient to make a new grant of such power. And, as we dwell upon these amazingly important words, their presence in the Fifth Article compels a greater tribute to the men who wrote them than that demanded by the fact that this ends the possibility of the disputes we have mentioned. It grows upon us that these words are among the most important securities to individual liberty in the whole Constitution. With increasing admiration for the men at Philadelphia, we sit in those early “conventions” and recall how much Madison and his colleagues have just told us in The Federalist about the danger to individual right from the tyranny of the citizens of a republic themselves, whether that tyranny is attempted by a majority or an aggressive minority of such citizens. We recall The Federalist, Number 51, and its forceful exposition of the merits of the proposed Constitution and its remarkable distribution of powers (powers granted to the new government in the First Article, powers left with each state over its own citizens and powers retained by the American people themselves) as security for individual rights.

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence arises a double security to the rights of the people.... It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.... Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.... In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.... It is no less certain than it is important, understanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And, happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” (Fed. No. 51.)

In those important words of the Fifth Article, “in three fourths thereof” after the word “conventions,” we now recognize the judicious mixture of the federal principle in our own command which controls our future CONSTITUTIONAL exercise of our exclusive ability to create new power to interfere with our individual freedom.

These words do not challenge or disturb the legal American necessity that our American government must get any new power of that kind from us ourselves, assembled in our “conventions.” But, with a practical wisdom never exceeded in framing the “constitution” of a self-governing nation, these words impose an amazingly effective check upon the existing ability of a majority or aggressive minority, in the republic which is America, to interfere with individual rights. These words do not attempt to destroy or alter that existing ability of the citizens of the new republic. On the contrary, these words recognize the existence of that ability. But, with the wisdom which means so much security to every individual right in America, these words make it impossible that such ability can be CONSTITUTIONALLY exercised unless a majority or an aggressive and organized minority, when seeking new government power to interfere with the individual freedom of the American citizen, obtain a majority support from the American citizens residing in every one of three fourths of the state in America.

Leaving (just for a moment) the conventions of the old days, we of this generation realize with gratitude the check so provided. We understand now, as we never understood before, why the organized minority which demanded that government write the new Amendment into our Constitution was driven by this constitutional check to ignore the plain fact that the new Amendment can never validly be put into the Constitution (if we still are citizens and not subjects) unless a “Yes” from the “people” themselves, the “conventions” of the Fifth Article, is obtained from three fourths of those “conventions.” We realize that the organized minority in question must support their proposition on the concept that Madison and Hamilton, who introduced and seconded the Fifth Article at Philadelphia, intended that Article “to create a will in the community” (which is America) “independent” of the supreme will of the American people themselves, intended it to create that anomaly of a superior will to the supreme will and to make that superior will the will of the legislative governments of a fraction of the states. We refer that organized minority to the quoted words of Madison or Hamilton, referring to such creation of a will independent of the people themselves: “This, at best, is but a precarious security, because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method [not the creation of a will independent of the human members of the society] will be exemplified in the federal republic of the United States,” the very Constitution of which contains the Fifth Article. We average Americans are now satisfied, beyond dispute, that neither Madison nor his associates in the early conventions, to which we will now return, understood or meant that the Fifth Article would or should create such an independent will.