Citizen or subject?

by Francis X. Hennessy

As in all those conventions, he is meeting the usual charge that the new Constitution endangers individual liberty because it lacks a bill of rights. As in all the conventions, he is pointing out that no bill of rights is needed in a Constitution which gives to government no power to interfere with individual freedom, except the specific and enumerated powers of the First Article. He is repudiating the thought that anywhere in the Constitution, in its Fifth Article or elsewhere, outside of the First Article, is there any grant to any government of power to interfere with individual liberty. And this is what he has to say about the Philadelphia Convention, which ended in the preceding September, and about the constitutional Articles that Convention proposed, including the Fifth Article. “A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned, in that House, with the greatest indignation.” (2 Ell. Deb. 436.)

We Americans, who will listen later herein to some extraordinary ideas about the Fifth Article from our modern “constitutional” thinkers, wonder just exactly with how much indignation the Fifth Article would have been spurned in all the conventions of that earlier day, if Patrick Henry or any other great opponent of the proposed Constitution had only been able to point out that the Fifth Article was a “grant” to a general government (the legislative governments of some of the states) not only of every power “expressly reserved by the people” but also of every power given to Congress by the First Article. We also wonder whether the indignation would have been increased or entirely dissipated if Henry or some other opponent had informed those conventions, the assembled people of America, a people so jealous of all government interference, that the omnipotence was granted so that the state legislatures, never elected by the American citizens at all, might, without the slightest restraint or any constitutional restriction, interfere with every individual right of the American citizen.

While many apparently sane and reasonable modern inhabitants of America have listened to such ideas in the last five years as if those who advanced the ideas were talking or thinking intelligently, we rather believe that the Americans in those early conventions, even from Henry, would not have received such ideas complacently. However, as we have found in those early Americans much of the natural humor which is the characteristic of a human being who thinks for himself, we are inclined to believe that the modern ideas in relation to the Fifth Article, about which ideas we have just been talking, would not have been received in any of those conventions with indignation but would have been greeted with prolonged laughter.

But the Henry of those days had not the intellectual calibre of our “constitutional” thinkers. Therefore, in those conventions, not even from one of the many bitter opponents of the proposed Constitution, do we hear any suggestion that there lurks somewhere in the Fifth Article, between its lines, because not hinted at in its apt, precise and classic English, the extraordinary grant of omnipotence to the legislative governments of some of the states. On the contrary, in every convention, we find the new Constitution bitterly assailed because its provisions reduce the state governments to that pitiable condition where Henry calls them the weakened, enervated and defenseless state governments. Indeed, we are inclined to mirth when we contrast these modern ideas of the Fifth Article (that it grants omnipotence over individual rights to some state governments) with many of Henry’s word pictures of the effect of the proposed Constitution on those state governments.

This is one of those pictures which he exhibits to the Americans in Virginia, assembled in their conventions: “What shall the states have to do? Take care of the poor, repair and make highways, erect bridges, and so on, and so on? Abolish the state legislatures at once. What purposes should they be continued for? Our legislature will be indeed a ludicrous spectacle—one hundred and eighty men marching in solemn, farcical procession, exhibiting a mournful proof of the lost liberty of their country, without the power of restoring it. But, sir, we have the consolation that it is a mixed government; that is, it may work sorely on your neck, but you have some comfort by saying, that it was a federal government in its origin.” (3 Ell. Deb. 171.)

Clearly, neither Henry nor the other opponents of the new Constitution had the modern ability to discern that it only appeared to deprive the state governments of much of their former powers. They could not see, they did not know, that its Fifth Article granted those state governments the omnipotence over individual liberty which the Statute of ’76 had denied to the British Parliament. And because Henry and his colleagues had not the discernment of our leaders, we hear Wilson and the supporters of the Constitution defending it against the plain fact that it did rob the state governments of much of their former power. For example, we hear Wilson saying: “The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power.... I know very well, sir, that the people have hitherto been shut out of the federal government; but it is not meant that they should any longer be dispossessed of their rights. In order to recognize this leading principle, the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone.... When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?... I have no idea that a safe system of power in the government, sufficient to manage the general interest of the United States, could be drawn from any other source, or vested in any other authority, than that of the people at large; and I consider this authority as the rock on which this structure will stand. If this principle is unfounded, the system must fall.... With how much contempt have we seen the authority of the people treated by the legislature of this state!” (2 Ell. Deb. 443, et seq.)

But we cannot stay much longer in the Pennsylvania Convention. It would be unwise, however, for us to depart therefrom without hearing the accurate confirmation of our own reading and understanding of the Fifth Article from its own “apt, precise and classic English.” Wilson was explaining his opposition to the doctrine that a constitution is a compact between a master government and servant people. In other words, he was explaining the American Statute of ’76, stating the legal principle that Americans are not “subjects.” “The citizens of united America, I presume, do not wish to stand on that footing with those to whom, from convenience, they please to delegate the exercise of the general powers necessary for sustaining and preserving the Union. They wish a principle established, by the operation of which the legislatures may feel the direct authority of the people. The people, possessing that authority, will continue to exercise it by amending and improving their own work.” (2 Ell. Deb. 498.)

To us average Americans this seems like sound American law and in strict keeping with our reading of the plain language of the Fifth Article, as we read it with the Americans in those old conventions. Wilson and his associates seem to know with certainty that the Fifth Article is not to change all the free individual Americans into “subjects” of the legislative governments of which he speaks. Indeed, he calls all those free Americans, to some of whom he was speaking, “the citizens of America,” although the nation of America would not exist and they would not be its citizens until they and the Americans, in eight other conventions, had said “Yes” to the Constitution they were discussing. Therefore, when he speaks of that Constitution as establishing a principle “by the operation of which the legislatures may feel the direct authority of the people” or “citizens of America,” and immediately adds that those citizens, possessing the exclusive authority to exercise and vest ability to interfere with individual freedom, “will continue to exercise it by amending and improving their own work,” the enumerated grants of such authority in the First Article, we realize with certainty that he and his associates know that the Fifth Article in that Constitution does not mean that the legislatures (who are to feel the direct authority of the people) can thereafter exercise the authority of the citizens of America by altering, subtracting from or adding to the First Article quantum of delegated power to interfere with the individual freedom of the American people.

In this convention, where the Americans in Pennsylvania are assembled, we have heard the consistent emphasis laid upon the fact that the Constitution is both a federal and a national Constitution, the distinction from all other constitutions so clearly recognized by the Fifth Article mention of the two makers of Articles. Later herein we will learn how this distinctive quality of our Constitution, this distinction recognized in its Fifth Article as well as in its Tenth Amendment, has neither been felt or acknowledged but has been wholly ignored by our modern “constitutional” thinkers for five years last past. At this point, therefore, it is well that we sit for a moment in the Virginia convention and listen to Henry, the greatest and most determined opponent of the Constitution before it was adopted. With our minds fixed upon the language of the Fifth Article and its clear mention of the exclusive existing ability of “conventions” to make national Articles, a mention emphasized by the equally clear recognition of the limited ability of the legislative state governments to make Articles which are not national, it is interesting to hear Henry refer to the difference between federal and national Articles; and it is more than interesting, it is amazingly important to hear him proving, by the fact that the Americans in Virginia are assembled in one of the “conventions,” that the Articles which have been just proposed from Philadelphia, are national and, therefore, of the kind that legislative governments can never make.

It is Thursday, June 5, 1788, the day on which began the immortal Virginia debate. For a year, since the proposal from Philadelphia, the new Articles have been the subject of the severest scrutiny on the part of those determined to secure the rejection of those Articles by the American people in Virginia. Throughout all America, these Articles have been examined and assailed and condemned in public writing and speech by those equally determined to secure their rejection by the Americans assembled in the other “conventions.” On the other hand, the same Articles have been explained and their necessity, if American individual liberty is to be secure, has been demonstrated in the famous essays which we now know as The Federalist, nearly all of which essays were the work of Madison and Hamilton, who are responsible for the wording and the meaning of the Fifth Article. Like the other “conventions,” assembling when all minds sought the best protection for individual liberty against oppressive governments, the members of the Virginia convention have been carefully chosen to speak the will of the Americans in Virginia by a simple “Yes” or “No” to these seven Articles, the first of which constitutes government ability to interfere with individual liberty.