Citizen or subject?

by Francis X. Hennessy

We average Americans know, and Webb and those of his Tory faith cannot deny, that the power to make the command of Section 1, the power purported to be granted in Section 2, are among the powers of which the Supreme Court speaks as reserved, not to the states, but to the people of America. We also know, and again they cannot deny, that only those, who have, can give, or grant. For which reason, we ask that they answer this question: How can the state governments exercise or grant a power which was not reserved to the states but was reserved by the citizens of America to themselves?

In asking this question we but echo the learned Pendleton’s question, in the Virginia convention of 1788: “Who but the people can delegate powers?... What have the state governments to do with it?” (3 Ell. Deb. 37.) And we also but echo the question of Wilson, in the Pennsylvania convention of 1787: “How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?” (2 Ell. Deb. 444.)

But we, the citizens of America, have a further charge, at this point, to make against Webb and all who claim that the new Amendment is in the Constitution or that any governments could put it there. In the case of Kansas v. Colorado, supra, counsel for the government of America made a monumental error by displaying his ignorance of the most important factor in the Tenth Amendment, “the people” of America. By reason of that particular ignorance, he assumed that all power to interfere with the individual freedom of Americans, on every subject, must be vested in some government or governments. This was the Tory concept, accurately rebuked by the supreme judicial tribunal, knowing only American law based on the American concept of the relation of “citizens” to their servant government and not on the Tory concept of the relation of the master government to its “subjects.” He did not know what Cooley knew when he made his accurate statement that “There never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent and incapable of definition,” (Constitutional Limitations, 7th Ed., 1903, p. 69.) By reason of his ignorance, he contended that government could command American citizens by interfering with their individual freedom on a matter not enumerated in the First Article. His particular error, in that respect, is repeated by Webb and all who uphold the validity of the command made in Section 1 of the new supposed Amendment.

But they were not content with repeating his one monumental error. They have not only ignored the most important factor in the Tenth Amendment, “the people.” They have also wholly ignored the most important factor in the Fifth Article, the mention of the way in which the citizens of America made their only valid grants of power to interfere with their individual human freedom, the mention of the only way in which new grants of power of that kind can ever be constitutionally made, the assembling of those citizens in their “conventions” in their several states. So assembled in such “conventions,” they made all their grants in the First Article and then, in their Fifth Article, mentioned their own assembling in exactly similar conventions in the future and prescribed that a “Yes” from three fourths of those conventions would be the only valid signature of the citizens of America to any new grant of a further enumerated power to interfere with their individual freedom.

There never has been any other possible meaning to those words in the Fifth Article, “or by conventions in three fourths thereof.” To the Americans who worded that Article at Philadelphia and to the Americans who made that Article, assembled in just such “conventions” as are mentioned in words therein, that quoted phrase was the most important factor in the Fifth Article. To them, those quoted words therein were the complement of their most important factor in the Tenth Amendment, the reservation to themselves (“the people” or citizens of America) of every national power not delegated in the First Article. Together, the two important factors were the command of the citizens of America that all national powers so reserved to themselves could be delegated only by themselves, assembled in their “conventions” —“by conventions in three fourths of” their states. We, who have lived through their education with them, realize this with certainty. Webb and those who believe with him know nothing about it.

Recognizing that Congress had been given no power to make the command which is Section 1 of the new Amendment, they first asked the state governments to make that command to the citizens of America. This was an exact repetition of the error made by counsel in Kansas v. Colorado, supra. This was their ignoring of the most important factor in the Tenth Amendment. Then, that the display of their own ignorance should contain something original, they ignored the most important factor in the Fifth Article and requested that a new power, reserved by the citizens of America to themselves, should be granted by the state governments. Everything that they have said or done, during the last five years, is based on that ignoring of that most important factor in that particular Article.

Indeed Webb himself made this very clear at the very opening of his appeal that Senate Resolution Number 17 be passed in the House on December 17, 1917. He merely paused to make the lucid explanation of how two supreme powers act, and then went on to read the Fifth Article as it appears in his expurgated edition of our Constitution. This is the Fifth Article he read to our only legislature:

“that Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution ... which ... shall be valid to all intents and purposes as part of this Constitution, when ratified by the legislatures of three fourths of the several states.”

It is clear to us, who have followed the framing of that Article in Philadelphia in 1787, that the Americans who framed it there and the Americans who made it, in their later “conventions,” would not recognize their Fifth Article. In the expurgated edition, the most important factor in the real Fifth Article is not only ignored but is entirely missing. It has been stricken from the Article. We do not know who ordered that it be stricken out. We recall with interest that, on September 15, 1787, at Philadelphia, Gerry, always a consistent Tory in mental attitude, moved that it be stricken out of the Article. We recall that his motion was defeated by a vote of 10 to 1. Nevertheless, when we come to read that Article, as Webb and his colleagues for the new Amendment know it, we find that they must have some other record of the vote on that old September 15, 1787, and of the later votes in the “conventions” of the citizens of America. We find that in the Fifth Article, as Webb and his colleagues know it, there are no words “by conventions in three fourths of” the several states. We realize that this reading of his Fifth Article and the absence of those important words from it was no mere inadvertence on the part of Webb. Clearly those words are not in his Fifth Article. Only a few moments after his reading of it, on December 17, 1917, he quoted with approval a statement, by some former Senator, that the American people have a “right to be heard in the forum of the state legislatures, where alone the question can be decided whether the national Constitution shall be amended.”

In view of these facts, we educated citizens of America have no difficulty in grasping the Tory mental attitude of Webb (and his colleagues for the new Amendment) that all constitutional protection for our individual freedom may be legally dispensed with at any time by government, if governments only get together and act jointly, as in the proposal and supposed adoption of the new Amendment entirely by governments. For the edification of Webb and those of his faith in that respect, we would like to inform them that all who believe that the new Amendment has been or can be put in the Constitution by governments, “seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed” our national and state governments, “not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must be here reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.” (Fed. No. 46.) It contributes not a little to the importance of the quoted statements that they were written by Madison, who also wrote the real Fifth Article. They are his warning to the then “adversaries of the Constitution.” They serve well as our warning to the present adversaries of our Constitution, who assume and have acted on the assumption that they can ignore its most important factors whenever government desires to exercise or to grant a new power to interfere with our individual freedom, although we have not granted it but have reserved it to ourselves.