Citizen or subject?

by Francis X. Hennessy

With such knowledge, he would have found it impossible to make the blunder of assuming that either government could give or join with governments in giving to the other any power to interfere with the citizens of the grantee in their enjoyment of individual liberty. He knew that, “In our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state.” (Story, 1 Ell. Deb. 65.)

When Hamilton stated, in those days of 1788, his conviction that new Articles would relate to the “organization of government and not to the mass of its powers,” he was epitomizing the common knowledge of everyone, at that time, that the new Constitution was both federal and national. He was predicting that the power to interfere with individual liberty, to the extent which Americans had surrendered any power of that kind to their governments, had been so wisely distributed, between the government of the citizens of America and the political entity which was each state, that it would never be necessary for the citizens of America to alter that distribution by giving any more to their government. That is why he prophesied that no new Article of the kind which only “conventions” of those citizens can make, Articles changing the “mass of powers” granted to that government by the First Article, would ever be needed.

And we recall that this conviction probably influenced the last day remembrance in the Philadelphia Convention by Madison and himself, that the Fifth Article should also contain some reference to the state legislatures and their future exercise of their existing abilities to make federal or declaratory Articles, which do not change the “mass of powers” in that First Article grant and do not relate to government interference with the individual liberty of the American citizen.

The statement of Hamilton was not meant as a prophecy. It was the result of a great mind reasoning from cause to probable effect. As we come down through the century or more that follows that statement and reach the beginning of the year 1917, we pay our tribute to a mind which could reason so correctly as to what would happen for more than a hundred years. We shall find that never again, from 1787 to 1917, did experience find it necessary that the “conventions” of the American citizens, the “conventions” named in the Seventh and the Fifth Articles, should again be assembled to alter, as they alone can alter, the mass of enumerated powers to interfere with their own individual liberty, which they granted in that First Article.

It is a striking commentary upon the ability of Hamilton and his generation, when contrasted with our modern “constitutional thinkers,” that he knew and appreciated what would happen in a century to come, while they have not understood what had happened in a century that had gone, although the record of that century was spread out before them to read. None of our leaders have appreciated the fact that every one of the first seventeen Amendments to our Constitution was of the kind that state legislatures had ability to make before our Constitution was even drafted at Philadelphia, because all were federal (or declaratory) Articles and were not national Articles. If they had known, after these seventeen Amendments were history, what he prophesied before the Constitution itself was adopted, the story of the last five years might not have been what we shall learn hereafter that it was.

That we may know, of our knowledge, what he prophesied and what they entirely overlooked and ignored, let us briefly examine the nature of those seventeen Amendments. Thus we will learn why governments, known at Philadelphia in 1787 to be incompetent to make national Articles, could and did make those seventeen Articles in the constitutional mode of procedure which the Fifth Article provided for the exercise of their existing ability limited to the making of federal or declaratory Articles.

The first ten Amendments were declarations insisted upon by the American citizens, assembled in “conventions” where we have sat, as specific security against government usurpation of power over their individual freedom. The Supreme Court has repeatedly declared that everything in those ten Amendments was in the Constitution when it was ratified by those “conventions” and that the Amendments simply declared what the will of the people themselves, assembled in those “conventions,” had already established as the fundamental law in America. Certainly no man would challenge the prophecy of Hamilton on the theory that any one of those Amendments added to the mass of government powers to interfere with human freedom. They are, each and every one of them, the declaration that government cannot do “this” and government cannot do “that.” So far from being national Articles, the kind which only “conventions” of American citizens could or can make, the kind which tell government that it can command the American citizens on this or that subject, they are all Articles which tell government that it cannot command the American citizen. And, for the further security of the individual freedom of the American citizen, a security never needed more than in this year 1923, the Tenth Declaration emphatically declares who it is that RETAINS the exclusive ability to alter, in one iota, “the mass of powers” (over the individual freedom of the American citizen) granted by them in the First Article and the exclusive ability to exercise any power of that kind over them, which was not granted in the First Article. Who can deny that, stated in our own words, this is what we find in the plain declaration of the Tenth Amendment? “We, the people of America, assembled in our conventions, have granted to the American government enumerated powers of the First Article. They are the only powers of that kind delegated to any government, by which it can interfere with our individual freedom in our capacity as American citizens. All powers, which the citizens of each state have hitherto had and which we have not taken from them herein, we have left with them; and the citizens of each state can grant so much of said powers as they please to their own government to govern them as citizens of that state. All other powers, outside those we have granted to our government to interfere with us and those we have left to the citizens of each state for their own respective exercise, we reserve exclusively to ourselves, in our capacity as citizens of America. And, if any government should deem it wise that any one of these powers (which we so reserve exclusively to ourselves) should be exercised, we have provided in the Fifth Article the mode of procedure in which we, assembled in our conventions, can CONSTITUTIONALLY exercise it or grant it to the government which wants to exercise it.”

The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them. (Justice Brewer in Turner v. Williams, 194 U. S. 279.)

Later herein we Americans, fresh from the “conventions” which demanded these declarations for the better protection of individual liberty, are going to hear expounded a doctrine, which would mean that these declarations were themselves the American Magna Charta. We are going to hear, to our amazement, that these declarations were a compact between an omnipotent government and its subjects, ourselves, who have always imagined that we were “citizens” and not “subjects.” We are going to hear, to our utter incredulity, that these declarations are the promise of a government—itself omnipotent over ourselves and our Constitution and our government which we thought to be the supreme government in America—that we, the subjects of that omnipotent government, may have certain privileges which this omnipotent government will not take from us.

When first we shall hear this 1917 resurrection of the Tory concept that government is master and Americans are “subjects,” that government is the state and we are its assets, we shall naturally be astounded and indignant that even a few inhabitants should still retain what Madison called “the impious doctrine” of the Old World, that people are made for governments, not governments for the people. Quickly, however, we shall become alarmed to find how wide-spread, among the “constitutional thinkers” of our own generation, is the complacent acceptance of the Tory concept and to learn that, when its application in any given instance injures a client of one of those constitutional thinkers, no matter how he may argue against the application in the particular instance, he neither knows nor uses for his client the fact that the Statute of ’76 repealed the doctrine on which Magna Charta rested, the Tory concept that government is the state and that we are its “subjects.”