Citizen or subject?

by Francis X. Hennessy

Why should we remember that Jefferson, also from a Southern State, penned the Statute of 1776 in which the American people commanded that no government acquire power over people except from people and not from governments? Why should we remember that Pendleton, also from the South, while actually engaged with all the rest of the American people in making the First Article, referred to it and asked, “Who but the people can delegate powers? What have the state governments to do with it?” Why should we remember that Wilson, in the previous December, that of 1787, said of our Constitution, “Upon what principle is it contended that the sovereign powers reside in the state governments? The proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?” Why should we remember that Webster, answering Hayne and Calhoun, said, also speaking of our Constitution, “While the people choose to maintain it as it is—while they are satisfied with it, and refuse to change it—who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction, OR OTHERWISE?... Sir, the people have not trusted their safety, in regard to the general constitution, to these hands. They have required other security and taken other bonds.” (4 Ell. Deb. 508.)

It is true that these earlier Americans have clearly in mind the most important factor in both the Tenth Amendment and the Fifth Article. But it must not be forgotten that Pendleton and Wilson and the Americans of that day, in making our Constitution, in constituting a new government and giving to it some powers over the freedom of human beings, were acting entirely outside any written law except the Statute of ’76. Is not their example a sound precedent for those who are now constituting a new government of Americans and giving it power over their freedom, for those who made the Eighteenth Amendment and those who upheld its validity? What if the makers of the new government are themselves government? If governments choose to act outside of all written law and to ignore that part thereof which is the important factor of the Tenth Amendment and the Fifth Article, are these governments not emulating the example of the American people in 1787? True, these American people did act in strict conformity to the Statute of 1776, and this modern constitution of new government by government is not in conformity with that Statute. But was not that Statute itself the revolt of human beings against government? If human beings, by successful revolt against government, could change themselves from subjects to citizens, why cannot government, by successful revolt against human beings, change them from citizens to subjects?

If, however, Sheppard and Webb and those of their Tory faith insist that the new constitution of government is in our Constitution, and put there validly, under claimed grant from us to state governments of omnipotence over American citizens, we, on our part, know that their claim is without the slightest support. Moreover, our knowledge in that respect is knowledge of indisputable legal fact. That the fact would be equally indisputable, even if our Constitution was a compact between states, as Calhoun did claim, and as Sheppard does claim, we can clearly demonstrate even to Sheppard himself. Our education with the earlier Americans, who changed their status from that of subject to citizen, has taught us all we need for that demonstration.

Let us assume, what Sheppard asserts, that the states made the Constitution, that it is a compact between states. Sheppard is a Texan. If our Constitution is a compact between states, the State of Texas is one of the parties to that compact. We ask Sheppard whether he and the other Texans are the State of Texas or whether the legislative government in Texas is the State of Texas? If he answers that the Texas legislature is the State of Texas, we proceed no further. That answer will be his frank confession that the Texan is a subject of the Texas government and not a citizen or member of the Texas State.

On the other hand, if he answers that the human beings of Texas are the State of Texas, we do proceed further. We proceed along the most definitely settled legal principle in America. If the human beings in Texas are its citizens and constitute its State, the constitution of Texas is their creation and the legislature of Texas is the creature of that constitution. From the Texans, through the creation which is their constitution, that legislature derives its every power over the human beings in Texas and cannot have any such power except by grant from those human beings themselves. That is the law of Texas, settled by hundreds of decisions in Texas and America. Now, if our American Constitution is a compact between the State of Texas—the human beings in Texas—and the other states—the human beings in the other states—how comes it that the mere creature of the Texans, without power over them except from them, can, by combination with other servant legislatures outside Texas, give to itself and to other governments outside Texas a new power to interfere with the freedom of the human beings in Texas?

We are rather afraid that Sheppard and those of his faith, even assuming that our Constitution is a compact between states, have entirely overlooked the legal fact that a government is not the State in America. We are rather afraid that they have reverted to what Madison called “the impious doctrine of the Old World,” namely, that the government is the State and the human beings are its asset and its property. We are rather afraid that they agreed with the concept of Louis of France, expressed in his famous “I am the State.”

On no other basis can we explain their complete ignorance of the one important factor in the Tenth Amendment and the Fifth Article, “the people” of America, who, assembled in their “conventions,” as mentioned in the Fifth Article, are the citizens of America and compose the State or Nation of America.

We average Americans, in the light of our education, reading the record of that July 30 in our Senate, would have thought, were it not for one fact, that every senator was using the expurgated edition of the Constitution, which Webb later used in the House, and which omits entirely from the Fifth Article the words, “by conventions in three fourths of” the states. Were it not for that one fact our thought would have been justified. We know that the proposition of Sheppard, embodied in his Senate Resolution No. 17, was that the proposed new Article should be referred to the tribunal of the state legislative governments. We know, and we have quoted his own statement, which is the basis of that knowledge, that he held that legislative tribunal to be “the only tribunal having power of amending” our Constitution. We know that he held this legislative tribunal to be “the proper tribunal to decide the fate of this Amendment.” We know his confidence that this legislative and government tribunal has “the right to shape, alter, and develop” our Constitution, ordained and established by the citizens of America. His conviction, in this respect, is stamped indelibly on our mind, because it came in such sharp conflict with our knowledge that all Americans of an earlier day held that every national Article, like the First Article and the supposed Eighteenth Amendment, must be referred to that other tribunal, the only tribunal competent to make such Articles where men are citizens and not subjects, the tribunal of the American citizens themselves, the tribunal mentioned in the Fifth Article in the words “by conventions in three fourths of” the states in America.

We know, therefore, inasmuch as neither Sheppard nor any senator but one apparently knew of the existence of that other and supreme tribunal or of the presence of those words in the Fifth Article, that all senators save that one must have been using an expurgated edition of the Fifth Article.

On that July 30 we find Senator Ashurst making plain that he has our edition of our Constitution. He said, “When our federal Constitution was written in 1787, two methods of amending were provided; and, unless I am mistaken, it was the first written constitution in history which provides for two methods of amendment.” This brief and simple mention of that significant fact, in relation to the Fifth Article, seems to have been the only cognizance of the fact itself, in the Senate of that day or in the entire subsequent history of the Eighteenth Amendment, even in the great litigations about it in which were arrayed against one another the most renowned “constitutional” lawyers in America. So far as would appear from the Senate record, no knowledge of the amazingly important effect of that Fifth Article mention of two distinct powers (one limited and then existing in government and the other unlimited and then and now existing in the American people) to make future Articles was acquired in the Senate or afterward, from the fact itself or from Ashurst’s allusion to the fact.