Citizen or subject?

by Francis X. Hennessy

Could anything be more vitally important to individual liberty than that just such “conventions,” so chosen, not the state legislatures, each elected by the citizens of its own state for an entirely different purpose, should continue to have their exclusive ability to determine how much power to interfere with individual freedom shall be surrendered by the American people, and how the quantum (which is surrendered) shall be apportioned for exercise between the one American government and the respective states and their respective legislative governments? Later herein we shall learn how clearly Madison and Hamilton, responsible for the wording and meaning of the Fifth Article, knew and appreciated the practical and amazing importance as security to individual liberty, in this distinction between the two makers (“conventions” of the American people themselves and state “legislatures”) named in their Fifth Article and in the distinction between their respective and existing abilities to make Articles in a Constitution which is both a federal and national Constitution. And, as we know, as the Supreme Court has declared in the voice of the Marshall who sits with us in that Virginia convention, the knowledge and appreciation was not peculiar to Madison and Hamilton. It was the common knowledge and appreciation of all the Americans who made the Fifth Article in those conventions. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent”; but when a grant of enumerated power to interfere with individual freedom was asked, “the legal necessity of referring it to the people and of deriving its powers directly from them was felt and acknowledged by all.” When such a grant is asked, whether it be asked in the shape of the First Article or of the Eighteenth Amendment, it is not referred to the people at all, unless it is sent to them to be considered and discussed before they choose, from among themselves, those of themselves who will assemble in the “conventions” for the one and sole purpose of uttering the carefully weighed “Yes” or “No” of the Americans in the state where the particular convention assembles. As all in those early conventions knew, as Marshall declared from the Supreme Court, that assembling in those “conventions” is the only way in which the American people can act “safely, effectively and wisely” when asked for a grant of power to interfere with individual freedom, and, as the Statute of ’76 and good sense and practical experience alike teach all free men, that is the only way in which any just power of government can be derived “directly” from the citizens upon whom it is to be exercised.

We commend a careful thought of this distinction, vital and important to individual human liberty, to the constitutional thinkers of 1917 and 1920. Whenever they read a Fifth Article which included the words “or in conventions in three fourths thereof,” they have assumed that two makers of Articles were named in the amending procedure of the Constitution (which is both federal and national) in order that Congress, when it wanted new power to interfere with individual freedom, might weigh the chance of getting it from each maker and then ask it either from those who reserved it exclusively to themselves, the “people” of the Tenth Amendment, or from those who never had it or the ability to grant it, the other reservee of the Tenth Amendment, “the states respectively” and their governments. Or perhaps it was the concept of these modern constitutional thinkers that the Fifth Article mentions two makers of Articles merely that Congress may choose either, according to its whim, as a fortunate golfer chooses between his two golf suits. That is their idea of the security to human individual liberty against government usurpation which Madison and Hamilton and the American people established about eleven years after they declared that no just power to interfere with human freedom could ever be obtained, except from the citizens with whose individual liberty the exercise of the power was to interfere!

As Henry and his fellow Americans in the Virginia convention had no such absurd concept, we return to hear him charge that the Philadelphia Convention had exceeded its authority in proposing the Constitution of national government and to prove that the proposed Constitution was national by the fact that the Americans in Virginia are assembled in “convention” to say “Yes” or “No” to that Constitution, whereas, if it had consisted only of federal Articles, it would have been sent to the legislatures.

“The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates, who were sent to Philadelphia, a power to propose a consolidated government instead of a confederacy? Were they not deputed by states, and not by the people? The assent of the people, in their collective capacity, is not necessary to the formation of a federal government.... They are not the proper agents for this purpose. States and foreign powers are the only proper agents for this kind of government. Show me an instance where the people have exercised this business. Has it not always gone through the legislatures?... Are the people, therefore, in their aggregate capacity, the proper persons to form a confederacy? This, therefore, ought to depend on the consent of the legislatures, the people having never sent delegates to make any proposition for changing the government.” (3 Ell. Deb. 52.)

In these words, as always in the convention where we sit and listen to him, Henry attests the universal knowledge, common to advocate and opponent of the proposed Constitution, that the Constitution has not been referred to the state governments because of their absolute inability to constitute government of individuals, to give to government any power to interfere with individual liberty. In this, he and the others but echo the knowledge of the Americans at Concord, on that October day, eleven years earlier, where they returned a proposed Constitution with Articles of that kind to the legislature which had proposed it. We recall their own statements that even a supreme legislative government “either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution.” We recall their statements of the important knowledge that “a Constitution, alterable” even “by the supreme legislative, is no security at all against the encroachment of the governing part on any or on all their rights and privileges.” But we also hear, in these words of Henry, his knowledge—the knowledge of all Americans at that time—of something else interesting and important to us. We hear him twice identify the assembling of the American people, in the “conventions” named in the Seventh and the Fifth Articles, as the people “in their collective capacity” and the people “in their aggregate capacity.” As we hear him, and as we hear Wilson in the Pennsylvania convention stating that “in this Constitution the citizens of America appear dispensing a portion of their power,” as we hear similar statements in all those “conventions,” we sense the universal knowledge of all those conventions that they are the American people, the citizens of the new republic. And later herein, with our education of 1790 completed by sitting in these very conventions, we intend to listen (with amazement and without the slightest belief) to the remarkable statements of 1917 and 1920, that the states, political entities, made our Constitution or that the citizens of the different states, in their capacity as such citizens, gave to the American government the enumerated First Article powers to interfere with the individual liberty of the citizens of that entirely different and greater nation, America. Impressed by Henry’s knowledge that the conventions which made the Constitution were the people of America, “in their collective capacity,” “in their aggregate capacity,” and impressed with Wilson’s knowledge that “the citizens of America”—not the states or the citizens of the states—“are seen dispensing a portion of their power,” we are going to laugh at the concepts of 1917 and 1920 and know that Marshall was right when he said, speaking of the American people and their assembling in those “conventions”: “It is true, they assembled in their several states, and where else could they have assembled?... When they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves or become the measures of the state governments.”

Yet, when we later come to the modern days of 1917 and 1920, we shall see all our leaders, whether for or against the Eighteenth Amendment, blandly assume a most extraordinary meaning from the Fifth Article mention of the state legislatures. Not a single member of any state legislature is elected by the citizens of America. Moreover, the Tenth Amendment expressly declares that the Constitution—that great power of attorney from American citizens to their only American government—gives no power whatever to the states or their governments. Nevertheless, with amusement and absolute incredulity, we shall hear every statesman of 1917 and every lawyer of 1920 assume and act and argue upon the extraordinary concept that the Fifth Article of that Constitution is a great power of attorney to the state legislatures as attorneys in fact for the American citizens.

“We all know the severe scrutiny to which the Constitution was exposed—some from their own knowledge, others from different sources. We know with what jealousy, with what watchfulness, with what scrupulous care its minutest provisions were examined, discussed, resisted, and supported by those who opposed and those who advocated its ratification.” (4 Ell. Deb. 486.) So spoke Martin Van Buren in the Senate on April 7, 1826. We sit in the conventions which made the Constitution of which he spoke. We listen to every word that is said therein. We hear the Fifth Article explained by its worder, Madison, as nothing but a mode of procedure. From not one of the opponents of the Constitution, not even from Henry, do we hear a single word of attack upon the Fifth Article except as to the weakness of the mode of procedure which it provides for evoking the power of the “people” themselves, assembled in “conventions” of the very same kind, to withdraw from the one American legislature, the Congress, some enumerated power of the First Article which is found oppressive to individual liberty. On the contrary, we not only hear no single word of complaint that the Fifth Article or any Article gives one iota of power to the state legislatures, but the whole complaint of all the opponents of the Constitution which we do hear is that it practically destroys all existing ability and power of those state governments. Only a moment ago we have heard Henry ask: “If you adopt this Constitution, why continue the state legislatures at all?”

Anticipating the extraordinary concept which we are later to hear in 1917 and 1920, that the citizens of America by the Fifth Article made a collection of the state legislatures an omnipotent government over everything in America, including every individual right, we wonder if the constitutional thinkers of 1917 and 1920 remember that we are sitting with a people who, just five years before the conventions in which they and we sit, ended an eight-year war to make certain that there never again should be a government of that kind in America, to make certain that they themselves should never be the “subjects” of any government or the citizens of any nation whose government should have even one power to interfere with individual liberty, except power of that kind granted directly by its citizens themselves.

It was Maclaine in the North Carolina convention who first used the exact expression that the Americans, who sit in the conventions where we are, were a people “better acquainted with the science of government than any other people in the world.” In the same convention, on July 29, 1788, this is what he had to say about the consistent attack upon the Constitution, because it robbed the state legislative governments of so much of their previous power. “Mr. Chairman, that it will destroy the state sovereignty is a very popular argument.... Government is formed for the happiness and prosperity of the people at large. The powers given it are for their own good.... The powers to be given the general government are proposed to be withdrawn from the authority of the state governments, in order to protect and secure the union at large. This proposal is made to the people. No man will deny their authority to delegate powers and recall them, in all free countries.... It may be justly said that it [the Constitution which contains the Fifth Article] diminishes the power of the state legislatures, and the diminution is necessary to the safety and prosperity of the people.” (4 Ell. Deb. 180.) It certainly would have surprised Maclaine, as well as all the Americans in those conventions, to have heard any one of themselves stating that the same Constitution vested the state governments with an omnipotence they had never possessed, the very omnipotence denied to the British Parliament eleven years earlier.

In the Virginia convention we hear Madison, who drafted and suggested the Fifth Article at Philadelphia, speak of the important distinction between the makers of the federal Articles of 1781, only seven years made, when we sit in that Virginia convention, and the “convention” makers of the proposed Articles of the new national Constitution. If these “conventions” make it, he says, it will be a government established, not through the intervention of the legislatures but by the people at large. Fie goes on to say “In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made,” now referring directly to the Fifth Article, “the same idea is, in some degree, attended to.” (3 Ell. Deb. 94.)