Citizen or subject?

by Francis X. Hennessy

So declared Justice Story, from the Bench of the Supreme Court, as far back as the decision of Martin v. Hunter’s Lessee, 1 Wheat. 324. As Story was an associate of Marshall on that Supreme Court, and as he is recognized as one of the greatest exponents of our Constitution, we average Americans prefer his knowledge to that of Sheppard even when the latter does quote from Calhoun. Furthermore, in an unbroken line of decisions, extending over the entire period of more than a century of whose history Sheppard knows naught, the Supreme Court has insistently proclaimed the same fact, namely, that the people of America—not the states—made our Constitution.

“It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of States.” (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206 U. S. 46.)

Indeed, many men before Sheppard have attempted to deny that fact. History, however, records no successful denial. As Sheppard states, the words of Calhoun were from his reply to Webster in 1833. In the history of a century, all a sealed book to Sheppard, Haine also asserted, against Webster, the belief of Calhoun and Sheppard as to what were the facts of the making of our Constitution. We average Americans, in an earlier chapter herein, have read Webster’s statement as to what were the facts of that making. Having lived, ourselves, through the days when the Americans did make their own Constitution, we agree wholly with Webster and the Supreme Court and know that the states had no part whatever in its actual making. Over fifty years ago, however, it became absolutely immaterial, except for academic purposes, what might be the personal beliefs of ourselves or Calhoun or Haine or Sheppard or Webster. Shortly after the middle of the last century, the Southern States, just as unwilling as Sheppard in 1917 to accept the unalterable decision of the Supreme Court that our Constitution is not a compact between states, appealed to the only tribunal to which there is any appeal from that Court, the tribunal of civil war. Even Sheppard must know the result of Gettysburg, the surrender forever of any claim that the Constitution is a compact between the states. Even Sheppard must some time have heard the echo of Lincoln’s appeal, at Gettysburg, that government of the people, by them and for them, should not perish from the earth. Even Sheppard must recognize, whether or not he wish to do so, how successfully the American people, whose predecessors made the Constitution, answered that appeal of Lincoln and intend to keep our government a government of the people, by them and for them, instead of a Sheppard government of the people, by governments without authority from the people.

We average Americans, however, do not question the wisdom of Sheppard in quoting the repudiated claim of Calhoun, so long as Sheppard and his colleagues intended to continue their effort to impose upon us the new constitution of a new kind of American government, which is their Eighteenth Amendment. If he and they were to find anywhere citations in support of the ability of governments in America to exercise and to grant undelegated power to interfere with human freedom, to what source could he or they go for such citations? Their proposition depended wholly for its validity upon the Tory concept of the relation of government to its assets and subjects, the people. And, in the five volumes of the records of the conventions of the Americans, in the two volumes of The Federalist, and in over two hundred volumes of American decisions in the Supreme Court, he and they knew that no single citation of authority could be found to support the idea that we Americans are “subjects” and not citizens. In the face of such a situation, he and they had but a choice between the repudiated claims of Calhoun and Haine or the concepts of Lord North and his associates in the British Parliament of 1775. We average Americans know what choice we would have made, under such circumstances. For which reason we are not surprised to find Sheppard, after his remarkable quotation from Calhoun, continuing on to say that the states “by reserving to themselves the unqualified and exclusive right of amendment kept intact their sovereign capacity in so far as the organic law of the nation was concerned.” (Congressional Record, Vol. 55, p. 5553.)

With the Supreme Court, we have always known and we still know, despite Sheppard, that the people of America did all the reserving that was done and which the Tenth Amendment merely declared had been done. We note, with intent to remember, how clearly Sheppard demonstrated his total ignorance of the most important factor in that Tenth Amendment, “the people,” and of the most important factor in the Fifth Article, the mention of the reserved exclusive ability of the people themselves, assembled in their “conventions,” to amend or change or add any national Article in their Constitution.

As we go on with his oration of that July day, we find him insisting, as we found the House insisting on a later day, that the states and their legislative governments are all the protection to our individual liberties which the American people were able to attain by the efforts of those remarkable years from 1775 to 1790. Curiously enough, that insistence is mentioned in the same breath in which he suggests that we, the citizens of America, have some rights, evidently in the nature of privileges which a government confers on its subjects. This is what he has to say: “In refusing the people the right to appeal to the only tribunal having power of amending, the tribunal of the states, for the redress of what they consider one of the most terrible grievances in the republic, Congress would deny to them one of the most sacred of all rights, the right of petition.”

Why should the supreme legislature not deny that right of petition to us, if the inferior state legislatures, who are not governments of the citizens of America, claim power to deny us any right they please, as they do by their supposed Eighteenth Amendment to our Constitution?

But we waste time on this Sheppard. Let him say his own farewell to us; the citizens of America, in his closing words of July 30, 1917. As Webb, in the House, closed with his eloquent appeal to every true Mohammedan, we naturally find Sheppard closing with his appeal to whatever Tory sentiment believes that the same most important factor in the Tenth Amendment and the Fifth Article should be equally ignored.

“At the close of this debate we will have an opportunity to enable the states to exercise their highest function—the right to shape, alter, and develop the federal Constitution. They are the proper tribunal to decide the fate of this Amendment. They compose the mightiest array of free commonwealths united in a federated whole the world has ever seen.... If there is anything in the Amendment subversive of their liberties and their welfare, they can be trusted to condemn it. Let not Congress assume to judge for them. Let Congress discharge its preliminary task of submission and stand aside. Let it put in motion the referendum provided by the national organic law—the method of amendment the states themselves established when they created the Constitution. Let the states perform the duty which remains the sole instance of their sovereignty over the federal government itself.” (Congressional Record, Vol. 55, p. 5554.)

If it were still 1833, if there never had been a Gettysburg or an Appomattox, could Calhoun himself have done better? If there never had been the Statute of 1776 or an American Revolution to make it the basic law of America, could any Tory peer in the Westminster Parliament of 1775 have been more zealous to see that the states themselves—which are mere political entities—should determine whether there was anything in the Eighteenth Amendment “subversive of their liberties and their welfare?” If there is, “they can be trusted to condemn it.” Let our “Congress discharge its preliminary task of submission and stand aside.” What if there is anything in the Amendment subversive of our liberties and our welfare? Why should we be trusted with the opportunity to condemn it, the opportunity which we reserved exclusively to ourselves by the most important factors in the Tenth Amendment and the Fifth Article?