Citizen or subject?

by Francis X. Hennessy

The Tenth Amendment tells us that no power of any kind is given, by the new Constitution, to any grantee except to the new nation and its government, the American government. It tells us that some powers, which each state had hitherto possessed, are taken from it; that the exercise of other powers, which each state had hitherto possessed, are now prohibited to it; and that only the other powers (which each state had hitherto possessed) are left with that state by the command of the supreme will in America, ourselves, the citizens of America. It tells us emphatically that no new powers of any kind are given to any state or to any collection of states or to their governments. It tells us that the American people, in making their Constitution, left each state and each state government powerless, as they had been, alone or in combination with other governments, to interfere with the individual rights of any human being outside that particular state. And finally it tells us, what the Supreme Court has expressly declared to be the most important declaration in that Tenth Amendment, that we ourselves, the individual citizens of America, the “people” of the Preamble and of that Tenth Amendment, retain (secure from any valid exercise by any government or governments in the world and only capable of exercise by ourselves in our “conventions”) every power to interfere with the individual freedom of the American citizen except in the matters enumerated in the First Article.

And so, in those “conventions,” we need no constitutional thinker to tell us the simple fact that only those who have can give. If the state legislatures have not, as indisputably they have not, any ability to exercise or to grant power of general interference with individual rights throughout America, and if, as the Tenth Amendment expressly declares, the entire Constitution adds naught to their existing ability to make Articles of another kind, the Fifth Article merely prescribes the constitutional mode of procedure, in which, by command of the American people, that existing and limited ability shall thereafter be exercised.

And likewise, if the American people themselves, the Seventh Article “conventions” in which we are sitting, have exclusive ability to exercise or to give power of general interference with their own individual rights, and if, as the Ninth and Tenth Amendments together expressly state, those “conventions” retain that exclusive ability, clearly the Fifth Article reference to the same “conventions” of the American citizens is but prescribing the constitutional mode of procedure in which, by command of the American people, that exclusive ability of their own shall thereafter be exercised. When the “apt, precise and classic English” of the Fifth Article permits no other meaning, we cannot imply that the Article intends to grant what one supposed grantee (who is the supposed grantor) already has and what the other cannot ever have. Nor can we imply that the Article intends to provide a constitutional mode of procedure in which those, who have not, may give. Moreover, as this absurd implication would make the individual American people “subjects,” as soon as they adopted that Article, we now know, with absolute certainty, that the Americans, in the “conventions” in which we are sitting, adopted it as their fundamental law of procedure with the only meaning which its own “apt, precise and classic English” permits.

We have now read, in those conventions of old and with the Americans therein who made it, all of the Madison Fifth Article save the two exceptions at the end thereof, beginning “provided that no amendment, etc.” In those conventions, the meaning of those two exceptions needs but a moment’s thought. One exception is that no change may be constitutionally made, prior to 1808, in relation to the existing evil of human slavery. The other exception is that no change may be constitutionally made which shall give any state greater representation in the Senate than each other state. These are not exceptions to any power “granted” in the Article. No power of any kind, as we already know, is “granted” anywhere in the Article, but the Article does mention two existing abilities, one limited and the other unlimited, and prescribes the constitutional mode of procedure in which each of the respective existing abilities may be exercised. The exceptions simply mean that the Article provides no constitutional mode of procedure in which may be exercised existing ability to change the Constitution in the matters mentioned in the two exceptions.

We average Americans have now examined carefully the record of the wording of all our Constitution at Philadelphia and particularly the record of the wording of the three Articles, the First and the Seventh and the Fifth, which either purport to give or mention future giving (by the “people,” who alone can give) power to interfere with the individual freedom of the American citizen. Furthermore, we have sat in the “conventions” of the American people, in which all those worded Articles were made, and have read, with the Americans in those “conventions,” the apt, precise and classic English of the Fifth Article, which told them, as it tells us, that the Article merely prescribes the constitutional mode of procedure, in which thereafter can be exercised either the existing limited ability of the state governments or the existing unlimited ability of the American citizens themselves, the “conventions” of the Seventh and the Fifth Articles. We are certain, therefore, that nowhere in the Constitution, made in those early “conventions,” can the most ingenious mind discover what would have been the greatest blunder in the history of mankind, anything which changed the actual and legal relation of the individual American to government and made him the “subject” of any government or collection of governments in America. It would be unwise, however, for us to leave those conventions without listening to some few of the great Americans, who sat therein, telling us how the new Constitution does secure the status of the free individual American and protect his individual freedom from all usurpation by any government or governments in America.

CHAPTER XIII
CONVENTIONS KNOW “CONVENTIONS” ARE “THE PEOPLE”

“When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states.... Since states as well as citizens are represented in the Constitution before us, and form the objects on which that Constitution is purported to operate, it was necessary to notice and define federal as well as civil liberty.... Under these impressions, and with these views, was the late convention appointed; and under these impressions, and with these views, the late convention met. We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal and national Constitution ... a constitution that would insure peace, freedom, and happiness to the states and people of America.” (2 Ell. Deb. 429, et seq.)

So spoke the great Wilson, beginning his explanation of the proposed Constitution to the first Americans assembled in the “conventions” named in the Seventh and Fifth Articles, the Americans in Pennsylvania. As we listen to him, we remark the insistence upon the fact that the Constitution to be considered is both a “federal and national Constitution.” And, in strict conformity to this fact, Wilson is heard explaining the difference between the federal liberty of a state, controlled by the federal Articles of a constitution, and the natural liberty of a man, controlled by the national Articles of a constitution. We listen to him with great interest when he tells us that this federal and national Constitution has been framed to insure “peace, freedom and happiness to the states and the people of America.” In his words we hear the echo of the fact so clearly declared in the Tenth Amendment, that the federal powers, not delegated in this Constitution to the new government, are reserved “to the states respectively,” and the national powers, not therein delegated, are reserved “to the people” themselves of America.

And, remembering that the two distinct reservees of the Tenth Amendment are respectively named in the Fifth Article, we keep in mind that the new Constitution is both “a federal and a national Constitution.” From which we know, as Wilson knew, that these reservees are named in the Fifth Article, the “state legislatures” because of their limited ability to make federal or declaratory Articles, and the “conventions” because of their ability to make Articles of every kind, the “conventions” of the Fifth and Seventh Articles being the people themselves. As we are actually sitting with Wilson in one of the “conventions” of the Seventh Article, there is no possibility of our forgetting, as none of the people in any of those conventions ever forgot, that the “conventions” of the Seventh Article are exactly the same as the “conventions” of the Fifth Article and that both are the people of America, assembled in their “conventions.”

None of the Americans in those conventions could be guilty of the ridiculous modern blunder about the Fifth Article. None could possibly read that Article to mean that the American citizens, “assembled in conventions,” were granting to the American citizens, “assembled in conventions,” any ability whatever to make Articles. The modern blunder becomes clear to us. Although the Seventh and Fifth Articles have only been proposed and have not yet been made, we sit in one of those “conventions” about to exercise ability to say “Yes” to any Article, whether federal or national. So, with amazement at the blunder of 1917 and 1920 about the Fifth Article, we listen intently to the Wilson statement which brings home the absurdity of the idea that the Article is a grant of ability to make Articles.