Citizen or subject?

by Francis X. Hennessy

We know that the Supreme Court, in 1907, did not so understand.

The powers the people have given to the General Government are named in the Constitution, [all in the First Article] and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them. (Justice Brewer in Turner v. Williams, 194 U. S. 279.)

We do not understand how Webb and those of his Tory faith could believe that one of those reserved powers could be exercised by the collective state governments, Section 1 of the new Amendment, or could be granted by those governments, Section 2.

We remember that Madison, who worded the Fifth Article, and Hamilton, who seconded it at Philadelphia, did not so believe but knew that such belief came in direct conflict with basic American law. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority [the people themselves in “conventions”] whenever it may be necessary to enlarge, diminish, or new-model the powers of the government.” (Hamilton in The Federalist, No. 49.) “The fabric of American Empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (Hamilton in The Federalist, No. 22.) “The express authority of the people alone could give due validity to the Constitution.” (Madison in The Federalist, No. 43.) “It is indispensable that the new Constitution should be ratified in the most unexceptionable form, by the supreme authority of the people themselves.” (Madison, at Philadelphia, 5 Ell. Deb. 158.) “The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, etc.” (Madison in The Federalist, No. 37.) and “There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” (Madison or Hamilton in The Federalist, No. 49.)

We average Americans know that, in the Fifth Article, there is “marked out and kept open, for certain great and extraordinary occasions a constitutional road to the decision of the people” when their own exclusive ability is alone competent to do what is deemed wise to be done. We know that the direct command to American citizens, interfering with their individual freedom and contained in Section 1 of the new Amendment, was the first direct command of that kind ever attempted to be put in our Constitution. We know that the grant of power to make such commands, which is the grant of the second section of that Amendment, is the first and only grant of that kind ever supposedly made since 1788. Knowing these undoubted facts, we cannot understand why Webb and those of his Tory faith did not know that the request for the command of Section 1 and for the grant of Section 2 was “a great and extraordinary” event, and that only through the “constitutional road for the decision of the people” themselves, “marked and kept open” in the Fifth Article, the assembling of the people themselves in their “conventions,” could a valid command and a valid grant be achieved.

The more we average Americans consider, however, the Congressional record of 1917 and the story of the subsequent five years, the more do we understand the curious mental attitude which has led Webb and those of his Tory faith, who believe that the new Amendment is in the Constitution, to think that governments could make that command to and that grant of power over the citizens of America. Our consideration leads us to think that none of these men have ever read or grasped the meaning of the words expressing a knowledge so often shown by our Supreme Court:

The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an Amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. (Justice Brewer, Kansas v. Colorado, 206, U. S. 46 at p. 90.)

We are sorely afraid that Webb and the Congress of 1917 and all upholders of the new Amendment have made exactly the same vital mistake which had been made, in that reported case, by the counsel who there represented the very same government which repeated the mistake in 1917.

That counsel had contended for the proposition that there are “legislative powers affecting the nation as a whole [the citizens of America] which belong to, although not expressed in the grant of powers” in the First Article. The answer of the Supreme Court was decisive on the mistake of that counsel and the mistake of the 1917 request from Congress to the state governments. The answer was that the proposition

is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the wide-spread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The argument of counsel ignores the principal factor in this Article, to wit, “THE PEOPLE.” Its principal purpose was not a distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it,—“We, the people of the United States,” not the people of one State, but the people of all the States; and Article X reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. (206 U. S. at p. 89.)