Citizen or subject?

by Francis X. Hennessy

In our Constitution all power ever granted to interfere with the individual freedom of American citizens is vested in our only legislature, the Congress. That is the opening statement of that Constitution in its First Article, which enumerates all powers of that kind ever validly granted to that legislature.

In our Constitution no power whatever over the citizens of America was ever granted to the states singly or collectively, or to the governments of the states singly or collectively. That all governments in America, including the Congress of 1917, might know that settled fact, it was stated with the utmost clarity in the Tenth Amendment to that Constitution. That Amendment, repeatedly held by the Supreme Court to be part of the original Constitution, is the clear declaration that no power of any kind over us, the citizens of America, is granted in that Constitution to any government save the government of America, and to it only the enumerated powers of that kind in the First Article. It is also the clear declaration that all powers to interfere with individual freedom, except the powers granted in the First Article to the American government and powers reserved to the citizens of each state respectively, to govern themselves, are reserved to the American citizens.

Wherefore, now educated in the experience of the Americans who insisted on that declaration, we make exactly the same charge, against the Congress of 1917 and all advocates of the Eighteenth Amendment, that was made by those Americans against their king who insisted that they were “subjects” of an omnipotent legislature.

In December, 1917, the Congress knew that it could not make, to the citizens of America, the command which is Section 1 of the Eighteenth Amendment. By reason of that knowledge, that legislature—the only American one—paid its tribute to the state legislative governments as collectively a supreme American Parliament with exactly the same omnipotence over all Americans “as subjects” which the Americans of 1776 denied to the British Parliament.

Congress ought to have known that no government except Congress can make any command on any subject to American citizens. It did know that Congress could not make the command of the new article to the American citizen. Therefore it paid its tribute to the state governments. It asked them, as competent grantors, to give it a new enumerated power to interfere with the individual freedom of the American citizen.

It is history that those state governments, each with no jurisdiction whatever except over the citizens of its own state, went through the farce of signing the requested grant in the name of the citizens of America. It is law that those state governments are not the attorneys in fact of the citizens in America for any purpose whatever. It is law that no governments have any power of attorney from the citizens of America to grant to any government a new enumerated ability to interfere with the individual freedom of the American citizens. For which simple legal reason, the supposed grant of such a power, by government to government, in Section 2 of the Eighteenth Amendment, is a forgery.

The supposed Volstead Act was enacted under this grant. It has met with the severest criticism. No one, however, has yet pointed out one particular fact to the careful thought of every average citizen of America. There are thousands of laws, interfering with individual freedom, in the statute books of the American nation and of the respective states. In one respect, however, this Volstead Act is absolutely unique among statutes in America. It is the one law in America of that kind, the kind interfering with individual freedom, which does not even pretend to be founded on a grant of authority directly from its citizens to the government which passed it. It is the only law in America, directly interfering with human freedom, which was enacted under a grant of power made by government to government. It does not detract from this unique distinction that the American government requested the grant, and the state governments made it, and the American government acted under it, by passing the Volstead Act, all being carefully planned and accomplished while millions of Americans were preparing to give and thousands of them did give their lives for the avowed purpose of securing human liberty from the oppression of government.

When, in 1787, Americans at Philadelphia had worded our Constitution, Gerry, opening the short discussion of its Fifth Article, made this important and accurate statement of fact: “This constitution is to be paramount to the state constitutions.” All American citizens know that each state legislature is the creature of its state constitution and absolutely subject to that constitution. We thus have clearly established that the American Constitution is paramount to all the state constitutions and that each state constitution is respectively paramount to the state legislature which it creates and controls. It remained for the Congress of 1917 and all advocates of the Eighteenth Amendment to acquire and state and act upon the remarkable “knowledge” that those same state legislatures are paramount to everything in America, including the American Constitution, which is paramount to the state constitutions which created these very legislatures. That such was the unique knowledge of the Congress of 1917 is made clear by its request to those state governments to make the command of Section 1 to the citizens of America and to make the grant of Section 2 of power over the citizens of America.

“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.”

So spoke Congressman Webb, introducing the proposed Eighteenth Amendment, exactly as it now reads, to the House of Representatives, on December 17, 1917. This was the day on which that House discussed and passed the Senate Joint Resolution 17, which proposed that Amendment and submitted it to governments to make it. Webb was a lawyer of renown and chairman of the Judiciary Committee and had entire charge of the passage of the Resolution in the House on behalf of those who had ordered the American Congress to pass that Resolution.