Citizen or subject?

by Francis X. Hennessy

It will be difficult for us to understand these leaders of our generation. In addition to what we have just lived through with the early Americans, these leaders will have before them countless decisions of the Supreme Court, flatly contradicting the Tory concept on which all these leaders reason. “The concessions of Magna Charta were wrung from the King as guarantees against the oppressions and usurpations of his prerogatives.... The omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.” We are going to find many of our leaders with the fixed Tory concept that there is in America a legislative government, unknown to the generation of Americans who created all government in America, and that this omnipotent government can do whatever it pleases, without any constitutional restraint, with almost everything in America, including ourselves and our Constitution and our American government. Curiously enough, we are going to be told that the one thing, in which this omnipotent legislative government falls short of absolute omnipotence, has nothing to do with any individual human freedom, but is its inability to change the equal representation of every state in our Senate. It will be quite amazing to us to hear these men, not proving this Tory concept but stating it as axiomatic American law and on it basing their every argument and audaciously claiming that our Supreme Court has no right even to consider whether it is so or not. But there will be something to alarm us even more. We will find our other “constitutional thinkers,” by circumstances obliged to challenge some particular deduction from this Tory concept, without any knowledge of the invincible facts which challenge the concept itself. To most of these men it will be as if the Statute of ’76 had been repealed and the result of our Revolution reversed, in 1787, by the very “conventions” in which we have sat. It will be our amazement to hear that these “conventions” never created the citizen of America but that the American people, assembled therein, voluntarily made themselves “subjects” of the omnipotent government. And these modern “constitutional thinkers” will discuss this omnipotent government on the basis that those “conventions” made that particular government (not the one to whom the First Article grants its powers) attorney in fact for the general people of America, authorized to interfere with their individual freedom, “on all matters whatsoever.” To most of these men, it will be as if the Supreme Court, in countless ways, had not declared:

In this country, written constitutions were deemed essential to protect the rights and liberties of the people against the encroachment of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights.... Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English Law, they must be held to guarantee, not particular forms of procedure, but the very substance of individual rights to life, liberty and property.

Of course, fresh from the conventions of old, we shall know that these men are talking nonsense. We shall know that the last two quoted statements from the Supreme Court, in Hurtado v. California, 110 U. S. 516, are but the expression of what was once the common knowledge of a people then “better acquainted with the science of government than any other people in the world.” But, as our knowledge shall be as the knowledge of the Americans of old, who fought an eight year war of sacrifice to make any such Tory concept in America absolute nonsense, it is well for us, while we are examining the nature of the first seventeen Amendments of our Constitution, to keep in mind one thing, which we now know and which, if it had not been forgotten, would have prevented the monumental blunder of the generation in which we ourselves are the American citizens. This one thing is the fact that the Constitution, made in the conventions we have just left, is a federal and a national Constitution. That fact and its influence upon the Convention, which framed the Fifth Article, and on the “conventions” of the American citizens, which made that Article, led them to provide, in their Fifth Article, the CONSTITUTIONAL mode in which state governments could exercise their existing limited abilities to make federal and declaratory Articles, like all the Articles of 1781 and like the first seventeen Amendments, and also to provide therein the constitutional mode in which the “conventions” of the American citizens could exercise their exclusive ability to make NATIONAL Articles, like the First Article and the supposed new Eighteenth Amendment.

Having fixed this clearly in our mind, we now proceed to examine the nature of the remaining Amendments that were made, prior to 1917.

The Eleventh Amendment gave no power of any kind to anyone. It simply declared that the Court of the American nation could not have jurisdiction of law suits against one of the states “by citizens of another state, or by citizens or subjects of any foreign state.” We commend, however, to the modern “constitutional thinkers,” whose Tory concept we shall meet later, this early American recognition of the fact that, in America, we are “citizens.” It will be noticed that this Eleventh Amendment, declared by the President to have become part of the Constitution on January 8, 1798, speaks of the “citizens” or “subjects” of any foreign state but speaks only of “citizens” in America.

The Twelfth Amendment likewise has naught to do with power of governments over human liberty. It deals solely with the manner in which the Chief Executive of America shall be chosen.

The Thirteenth, Fourteenth and Fifteenth Amendments are the famous so called Slavery Amendments. Even the modern “constitutional thinker” of 1917 and 1920, no matter how Tory his concept, will hardly dare to claim that these Amendments give government power to interfere with the rights which the Creator gave to the human being.

On the most casual examination of the language of these Amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. (Slaughter House cases, Supreme Court, 16 Wall. 36 at p. 71.)

Of these Amendments, in the Civil Rights Cases, 109 U. S. 3, the Supreme Court again said that “they abolished slavery, and established universal freedom.”

When, therefore, in the year 1920, we shall hear these Amendments, which establish universal freedom, cited as Articles of exactly the same nature as a supposed new Article, directly interfering with the freedom of the American citizen on a matter not enumerated in the First Article, we shall be rather surprised. But we shall be more than surprised, when we hear the reason of the modern “constitutional thinker” why both Articles are within the power of the state governments, who are his clients, to put into our Constitution. Not knowing that our Constitution is a federal as well as a national Constitution, not knowing that his government clients always had the ability to make federal Articles and never had and have not now the ability to make Articles which interfere with human freedom, we shall find him stating, as axiomatic, that the slavery Amendments, which establish universal freedom, and the supposed Article of 1917, which interferes with freedom of the individual, are identical, for the reason that both affect the individual and his rights and liberties. On the remarkable nature of this identity, that one secures and the other interferes with individual liberty and, therefore, both affect individual liberty, we shall find that he bases the Tory concept that state governments can do as they please with all liberties of the American citizens. While his theory will serve only to amuse us, we commend, to his reading, this extract from a better American lawyer:—“The legislature may not confer powers by law inconsistent with the rights, safety, and liberties of the people, because no consent to do this can be implied, but they may pass limitations in favor of the essential rights of the people.” (Woods appeal, 75 Pa. 59.)