Citizen or subject?

by Francis X. Hennessy

There can be no mistake about the Tory mental attitude of the supposed American government which asked the governments of state citizens to make the 1918 command to the American citizens, interfering with their individual liberty on a matter outside the First Article. The request was a frank avowal of the Tory concept that the people are “subjects” and that government can constitute new government of men “in all matters whatsoever.” Even in choosing the time for the proposal and the command, there was sincere and flattering imitation of a Tory precedent of Revolutionary days. When Americans of New York were away from their homes and at the battlefields of the Revolution, it was a Tory who stirred up the House of the Six Nations to make a home attack upon what was cherished by those Americans. And it cannot be ignored that it was in 1918, when millions of Americans were away from their homes either fighting or prepared to fight for human liberty, the Houses of forty-five distinct nations were stirred up to make a home attack upon what those Americans cherished, their individual freedom. And the analogy does not end with this fact. Whenever the Tory concept of the relation of government to “subject” has prevailed, government has never recognized any obligation of government to obey law made by government. In the years which followed 1918, this was strikingly exemplified by the sole American government which had asked the governments of state citizens to make a command to the citizens of America. The command, in simple English, forbade that certain things be done in “the United States and all territory subject to the jurisdiction thereof.” The American government insisted that its citizens must obey the command. But the American government itself frankly added that, on its own ships which flew the American flag, it would not pay the slightest attention to the command. And not until this frank Tory attitude had been given unenviable notoriety did the American government ask the remarkable information from its Attorney General whether ships, owned by the American government and flying the American flag, constituted “territory subject to the jurisdiction” of America. Then, while the chief champion of the new Article before the Court of 1920 and his associate government officials waited for the information from their associate Attorney General, the American government continued to act on the claimed assumption that its ships were not “territory subject to the jurisdiction” of America. Facts speak for themselves. It seems impossible to question the consistent Tory attitude of the American government in every matter relating to the supposed Eighteenth Amendment.

Let us now consider the second section of this amazing new Article, as such second section was originally suggested by the Senator from Texas.

In its then form it was the suggestion that, after or simultaneously with the state government exercise of an imaginary power to command the American citizens, those same state governments should vest in the only government of American citizens a future ability to make commands on the same subject, a subject not enumerated in the First Article. The Statute of ’76, the reasoning and the decision at Philadelphia in 1787 that its First Article could only be made by the “conventions,” the clear and explicit statements in the Supreme Court (from Marshall to Brewer in 1907) that no valid grant of national power could ever be made except by the “conventions,” the prescription in the Fifth Article of the constitutional mode in which a “Yes” from three fourths of those conventions would validly make grants of such power—all these things meant nothing whatever to the Senator from Texas or his colleagues in Congress, to the legislators in the various states, to government officials or to the “constitutional” lawyers who have discussed the Eighteenth Amendment. None of them realized the clear fact that, if government could get new power over human beings from government, the Americans, through whose education we have lived, had wholly failed to achieve their one purpose, security of human freedom from any interference by government except under some power of interference directly granted by themselves to that government.

Many of the colleagues of the Senator from Texas questioned the wisdom of asking the grant on that subject. We know not one, however, who questioned the ability of the proposed donors to make the grant. We know not one who questioned as a fact that a fractional part of our state governments have the very omnipotence over the individual people of all America, which those earlier Americans denied to the British Parliament. Among our “constitutional” lawyers, there were many who were engaged to combat in court the validity of the new Article. They questioned its validity on the ground that it took from the states, which are mere political entities, part of the power which each state had not surrendered. In this, they ignored the legal fact, settled by innumerable decisions, that the people of America, not the states, made the Constitution and all its grants of national power. They questioned its validity on the ground that the power (to make constitutional Articles) “granted” (?) in the Fifth Article did not include the power to make fundamental changes in the Constitution. In this, they wholly ignored the certain fact that no such power is granted in the Fifth Article but that two distinct powers, then existing, one limited and the other unlimited, are mentioned and not granted in the Fifth Article, and a mode of procedure for the future exercise of each is prescribed. In all their challenges to the validity of the new Article, however, we know not one who ever knew or mentioned the only and the invincible challenge to that validity, that new power to interfere with the individual freedom of the American citizen could only be obtained constitutionally by direct action of the American people themselves, assembled in the “conventions” of the Fifth Article. It meant nothing to them that the Fifth Article prescribed that such grants should be valid only when there had been a “Yes” evoked from three fourths of those conventions. If we would realize the amazing ignorance, during the last five years, shown on these matters, we must continue the tale of the proposed new Article.

Before the proposed Article had left the Senate for the first time, what we now call Section 2 read, “The Congress shall have power to enforce this Article by appropriate legislation.” With the section in that language, the Joint Resolution was passed and sent to the House of Representatives on August 1, 1917. (Congressional Record, Vol. 55, p. 5666.) It was reported out of the Judiciary Committee and taken up by the House on December 17, with the proposed Section 2 reading, “The Congress and the several states shall have concurrent power to enforce this Article by appropriate legislation.”

Somewhat educated with those Americans whose experience made them better acquainted with the science of government than any other people in the world, we realize that only Mark Twain could do full justice to the nature of this alteration to the proposed Section 2. It was not enough that Congress, because it did not have the power to make a certain command to its own citizens, should ask inferior governments, which are not the government of the American citizens, to make that command. It was not enough that the American Congress, when asking these inferior governments to make that command, should ask them to give Congress a future ability to make commands on that subject on which the citizens of America had never given any government or governments ability to make any commands to the citizens of America. The House alteration in the second suggestion from the Senate would indicate that the House became jealous of the Senate ignorance of fundamentals in the relations of governments to one another in America and in the relation of all governments in America to the individual American. It is difficult otherwise to explain the House alteration in the Section 2 of the Amendment which came from the Senate. As the House reported the two sections back to the Senate, this is what the two sections proposed. Section 1 embodied a command (to be made by the inferior state legislatures) which directly interferes with the individual freedom of the American citizens on a subject not enumerated in their First Article. Section 2 embodied a grant of future ability to make similar commands on the same subject, and the grant was to be from the state legislatures to the Congress and to the very state legislatures who were supposed to make the grant itself and the command of the First Section.

This is exactly the form in which the Second Section of the supposed new Amendment was later ratified by these very state legislatures. That Second Section has been the subject of unlimited discussion for the past five years. Every one seems to have given it whatever meaning pleased him at some particular moment. When the House Chairman of the Judiciary Committee reported this Section to the House he frankly stated that “We thought it wise to give both the Congress and the several states concurrent power to enforce this Article and let that power be set forth and granted in the Article we propose to submit.” (Congressional Record, Vol. 56, p. 424.) But when Wheeler, counsel for a political organization which dictated that governments constitute this new government of men, wrote his briefs to uphold the validity of the new Article which Webb championed in the House, he explained that this Webb Second Section “does not add to the power already conferred upon Congress by Section 1” but that “it does, however, make clear that the power is reserved to the states to pass legislation in aid of the acts of Congress.” As in most matters, the various champions of the supposed Eighteenth Amendment are unable to understand and agree upon the meaning of plain English. From time to time, in our education, it will be clear that they do not know and understand what the American people did in 1788 in their “conventions” but that, while flatly contradicting one another, they are all satisfied that the American citizens did give the state legislatures unlimited ability to interfere with individual freedom of the American citizen. It seems natural, therefore, to find Webb and Wheeler flatly contradicting one another as to the plain meaning of Section 2 of the Eighteenth Amendment. Despite the absurdity of the concept, Section 2 means exactly what Webb stated it to mean when he brought it from the House Judiciary Committee which had written it. It means, in the plainest English, that the state legislatures grant to themselves (as well as to Congress) ability to make commands of the very same kind as the same state legislatures make, without the grant, in the First Section. And it is a remarkable fact that, in all the comment on that Section 2 for five years, no word has been spoken about this ridiculous proposal that the state legislatures make a certain command and then grant themselves the power to make such commands. However, the absence of such comment has been quite in keeping with the fact that our modern leaders and lawyers, during the same five years, have never known or commented upon the fact that the Eighteenth Amendment depends for its existence upon the similar and equally absurd concept that the Fifth Article is a grant from the “conventions” to the “conventions” as well as to the state legislatures.

By reason of our education, we have many natural questions to ask about that Section 2 and the unique House addition to its supposed grant. While some of those questions may be academic, inasmuch as we know that the new Article is not in the Constitution, the thoughts which suggest the questions are strikingly pertinent to our general query, “Citizen or Subject?”

In the first place, we recall the opening words of Section 4 of the Fourth Article of the Constitution. Those words are, “The United States shall guarantee to every State in this Union a Republican Form of Government.” These words immediately precede the Fifth Article. Moreover, the Supreme Court has decided that it is the particular duty of Congress to see that this particular guarantee of the Fourth Article is strictly fulfilled. (Luther v. Borden, 7 How. 1; Pacific Telephone Company v. Oregon, 223 U.S. 118.) In the light of these facts, we wish to know whether the Congress, which proposed the change in Section 2, so that state governments outside a particular state might give to the state government of that state new power to interfere with its citizens, understood that the Fifth Article was meant to enable Congress to originate any desired breach of the guarantee in the Fourth Article. From our education, we know that, so long as any state has a republican form of government, its legislature can have no power to interfere with the individual freedom of the citizens of a state except by the grant and continued consent of those citizens themselves. We know that the citizens of each state, in 1776, gave its legislature power to interfere with their freedom in the matter which is the subject of the Eighteenth Amendment. We know that, then or at any time since then and now, the citizens of each state could take back that power so given. But, if the governments of thirty-six states outside any given state, by the Second Section of the Eighteenth Amendment, have granted the legislature of that particular state a new and second power to interfere with the individual freedom of the citizens of that state, in the matter which is the subject of the Eighteenth Amendment, what has become of the republican form of government in that state? No republican form of government ever exists where governments, outside a state, give to its legislature any power to interfere with the individual freedom of its citizens.

The case of Rhode Island or Connecticut makes our point clear, although the question is equally apt for any state, if the Eighteenth Amendment is in the Constitution. Neither the American citizens in Rhode Island nor the legislature of Rhode Island, which speaks only for its citizens and not for any citizens of America, have ever said “Yes” to the grant to the legislature of Rhode Island of this new power to interfere with the individual human freedom of the citizens of Rhode Island. The other power to interfere with that freedom, on the same subject, which the citizens of Rhode Island gave to their legislature, is a power which the citizens of Rhode Island can take back from that legislature at any time. But, if the Eighteenth Amendment is in the Constitution, the legislature of Rhode Island has a power to interfere with the citizens of Rhode Island in the exercise of their human freedom, which power has been granted by governments outside of Rhode Island, and which power cannot be taken away from that legislature by the citizens of Rhode Island.