Citizen or subject?

by Francis X. Hennessy

Outside of that legislature, American citizens have no legislative government.

Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the states; but beyond, it has no existence. (Justice Waite, in the Supreme Court, United States v. Cruikshank, 92 U. S. 542.)

In the Senate, on April 4, 1917, Senator Sheppard of Texas had introduced a Resolution, known as Senate Joint Resolution 17. The Resolution itself, apart from the proposed new constitutional Article which the senator suggested that legislative governments should make, read as follows: “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two thirds of each House concurring therein), That the following amendment to the Constitution be, and hereby is, proposed to the States, to become valid as a part of the Constitution when ratified by the legislatures of the several States as provided by the Constitution:”

The proposed new national Article, which this 1917 Resolution suggested should be made by legislative governments, originally and in April, 1917, read as follows:

“Article—.

“Section 1. The manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, and the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes are hereby prohibited,

“Section 2. The Congress shall have power to enforce this article by appropriate legislation, and nothing in this article shall deprive the several States of their power to enact and enforce laws prohibiting the traffic in intoxicating liquors.”

By reason of our education in the actual constitution of our only American government and our respective state governments, we grasp immediately the startling nature of the suggestion that the state governments make that Section 1 and that Section 2. We first dwell with amazement upon the proposed Section 1 and its proposed makers.

It is a general and direct command to all human beings anywhere in America, directly interfering with their individual freedom, on a matter not enumerated in the First Article. Since we denied omnipotence to Parliament, no legislature or legislatures had ever dared to make any general command to the American people, except the American Congress and it only since 1789 and on matters enumerated in the First Article. From 1776 to 1789, no legislature or legislatures had any power whatever to make a general command to Americans on any subject whatever. When Americans, in answer to the Philadelphia 1787 proposal, made themselves a nation and constituted its government, they gave to that government enumerated powers to make general commands on some subjects. All other power to make general commands of that kind they withheld from every government and reserved exclusively to themselves, as they had denied every power of that kind to every government in the world by their Statute of ’76. For which very clear reasons, it had been continually repeated in the Supreme Court for a century that only one government in the world could make a general command to the citizens of America, and that the Congress itself could not make any such command on any subject not enumerated in the First Article.

The Congress proposal of the Eighteenth Amendment was its own recognition of the truth that the sole government of American citizens had no power to command them on that subject. It is probable that nothing ever originated in Congress more remarkable than this proposal that, because Congress itself was without the power to make the command, Congress should ask inferior governments of other citizens to make a command to the American citizens. If it were possible that this could be done, there would be no American citizen. While no public leader or renowned lawyer has known this simple fact, the story of five years has shown how difficult it is to educate the average citizen away from the “American” mental attitude of 1776. In 1922, our Chief Executive commented on the fact that the disobedience of American citizens to the command made by the state governments had become a public scandal. From 1765 on, similar disobedience of Americans to commands made by government without authority from Americans was a public scandal to Tories in America and in the British Parliament.