Citizen or subject?

by Francis X. Hennessy

From one instance alone, we may immediately glean how clearly Webb and all leading supporters of the Eighteenth Amendment, in and out of Congress during the past five years, have shown an accurate “knowledge” of the basic principles of all government in America. We realize that such knowledge, if human liberty is to remain secure, is an essential qualification of leaders of a people once “better acquainted with the science of government than any other people in the world.”

No sooner had Webb read the Section 2 and made his quoted statement of its purpose than he was asked a pertinent and important question. The query was whether, if Congress and a state government each passed a law and they flatly conflicted, which law would control? Webb had made long preparation to carry out his purpose that the Eighteenth Amendment be inserted in the Constitution by government. He was prepared with his immediate response to that ignorant question. His prompt answer was: “The one getting jurisdiction first, because both powers would be supreme and one supreme power would have no right to take the case away from another supreme power.” (Congressional Record, Vol. 56, p. 424.) It is sad to relate that this lucid explanation of the manner in which two distinct supreme powers dictate to one “subject,” the American citizen, elicited the next query, “Does the gentleman say that as a lawyer?” With the charity that real intelligence displays to ignorance, Webb again explained the simple proposition of two distinct and supreme powers to command on exactly the same matter. We commend Webb’s American mental attitude, without the slightest Tory taint, and his mastery of American law, to all who ever wish to dictate to human beings as “subjects.”

Fresh from our education in the experience of the earlier real Americans, we deem it proper to dwell for a moment further on that opening statement of Webb: “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” to the state governments.

We recall vividly the statement of Lloyd George made only last year in the British Legislature. He was speaking of the proposed treaty with Ireland, then before that Legislature, and this is what he said, in substance. “The Parliament at Westminster [legislative government, not the people of the British Empire] is the source of every power in the British Empire.” It is our just tribute to Webb and every American who believes that the Eighteenth Amendment is in the Constitution, that they understand that the American nation is founded and exists on exactly the same principle. They have all acted upon the one conviction that the state governments collectively are exactly the same as the Parliament at Westminster, are above the American Constitution and need obey no command in it, and are the legitimate source of any power to interfere with the individual freedom of the American citizen, on any matter whatsoever.

On our part, probably blinded by our own education with the earlier Americans, we still believe that Webb and all who think with him are hopelessly ignorant of American law. We believe that they do not understand in the least the vital change in the status of the American individual, from “subject” to “citizen,” on July 4, 1776.

We remember Marshall’s clear statement, in the Supreme Court, that, in the days when Americans “were better acquainted with the science of government than any other people in the world” and the First Article grants of power over them were requested, the legal “necessity of deriving those powers from them was felt and acknowledged by all.” We know that they made no change in the imperative nature of that necessity. We do not understand how that legal necessity, during the past five years, has not been known to Webb and those of his Tory faith.

We remember Marshall’s equally clear statement, again in the Supreme Court, that, when new grants of such power are wanted from its citizens by the American government, there is only one way, in which those grants can be validly or “effectively” made, namely, by those citizens themselves, assembled in their “conventions.” It is true, the American citizens assembled in those conventions in their several states. “No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass” and of compelling them to assemble in one “convention,” when it is necessary for them to act, as possessors of exclusive ability to vest national power over them.

Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be measures of the people themselves, or become the measures of the state governments. (M’Culloch v. Maryland, 4 Wheat. 316.)

We do not understand how Webb and those of his Tory faith have forgotten this legal fact, possibly the most important in America to the liberty of its citizens.

We remember how well this legal fact was once known to all Americans, how clearly the Americans in Virginia expressed it as the then knowledge of all Americans and their leaders. “The powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will.” (Resolution of the Americans in Virginia, ratifying the Constitution and making the grants of its First Article, 3 Ell. Deb. 653.) We do not understand how Webb and those of his Tory faith, speaking the language of Lord North in 1775 and of Lloyd George in 1922 as to the British Government of “subjects,” should translate the quoted accurate statement of American law into, “The powers granted under the proposed Constitution are the gift of the people, but every power not granted therein remains with the collective state legislative governments and can be granted by those governments, without any action by the citizens of America themselves.”