Citizen or subject?

by Francis X. Hennessy

Back at Philadelphia in 1787, Gerry, always Tory in his mental attitude to government and human being, realized fully the amazing importance of this Fifth Article mention of the two then existing powers to make Articles, the limited power of legislative governments to make federal Articles (which had made all the federal Articles of 1781) and the unlimited and exclusive power of the people themselves to make national Articles, which had been exercised to make the national Articles in each existing state constitution, and which the Philadelphia Convention had already ascertained and held was the only power competent to make such Articles as their own proposed First Article and the Eighteenth Amendment. While the Philadelphia Convention had been discussing and deciding that their proposed Constitution, because of its First Article, the real constitution of government, must be referred to the people, Gerry had always opposed that decision. He had always fought to have that First Article sent to government, to have its grants of power over the freedom of men made by government to government. When, therefore, the closing business day of that Convention was reached on September 15, 1787, he made his final and consistent Tory effort that citizens should be asked to make a Fifth Article which would change them back again to the subjects they had been in 1775. That effort was his motion of September 15 to strike from the Fifth Article, as we know it, the words “or by conventions in three fourths of” the states. He knew, as we know, by reason of our education with the Americans who defeated his effort, that those words are the Fifth Article mention of the then existing only ability in America which then could or now can make such Articles as the original First Article or as the supposed Eighteenth Amendment. He knew, as we average Americans now know, that, only if such mention were stricken from that Fifth Article, could any future possible claim be made that legislative governments have ability to exercise or to grant undelegated power to interfere with individual freedom. With the important object in mind, that he secure some foundation for such claim in the future, he made his motion to strike that mention of our exclusive power from that Fifth Article. As we average Americans know, his effort to have a convention even propose such a Fifth Article to “a people better acquainted with the science of government than any other people in the world” was beaten by the decisive vote of 10 to 1.

The proposal of the Eighteenth Amendment by government to government was the attempt of our servant American government to reverse the result of that vote of September 15, 1787. The action of the state legislative governments in America upon that proposed Eighteenth Amendment was an action depending entirely for its validity upon a recount of that vote and the assumption that the convention did strike out that mention of our exclusive power to make national Articles and that the Fifth Article went to the American people and was made by them without that mention in it. For which very obvious reasons, we average Americans do not understand how the fact, to which Ashurst made brief allusion on July 30, 1917, was not the basis of every attack made in the Supreme Court by many of the most renowned “constitutional” lawyers in America, when they did assail the validity of that Eighteenth Amendment.

It is difficult to pick out the one most remarkable thing in the complete story of the last five years. Yet we are inclined to believe that, from a certain point of view, the one most remarkable thing is the absolute failure of even one of those renowned lawyers to appreciate or know or mention the fact and its decisive effect upon the alleged validity of the Amendment they challenged, the fact that the Fifth Article does name two future makers of Articles, the governments which could and did make the federal Articles of 1781, but which neither could nor did make the First Article of 1787 or the Eighteenth Amendment of 1917, and the citizens of America, who could and did make the First Article of 1787 and who alone can make but have not made the Eighteenth Amendment.

Even Ashurst seems to have known that it was remarkable, unique in history, for the Fifth Article to name two different makers of future Articles. It is amazing that the imperative reason for this naming of two makers, distinct and different in their ability to make, never suggested itself to any of the renowned lawyers of 1920, even though they knew the dual nature, national and federal, of our Constitution. It is amazing when we realize that the Supreme Court, in 1819, had stated, as an obvious thing, that, when the First Article (granting power to interfere with the freedom of men) was proposed, the legal “necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all.” It is amazing when the same Supreme Court in 1907 had authoritatively repeated that statement: “The powers the people have given to the general government are named in the Constitution, 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.”

However, we average Americans, still pursuing the history of America to learn when we again became “subjects,” will later herein consider the litigation about the Eighteenth Amendment. So far as the Senate is concerned, we leave it on December 18, 1917, the day on which it finally proposed that legislative governments make the Eighteenth Amendment, whose Second Section was exactly of the same nature as the First Article, namely, an Article of the kind which the Philadelphia Convention of 1787 had known never could be made by legislative governments in America. In that Senate, as in the House, the public record discloses no American who did not ignore the most important factor in the Tenth Amendment and the Fifth Article, no American who knew the legal necessity of deriving, directly from the people themselves, every power to interfere with the individual freedom of the people.

So far as history tells the tale, in the legislatures of the states, that legal necessity was “known and acknowledged” by none. There were many therein, as there were many in the later court litigations, who opposed the making on the ground of its unwisdom. There were also many, again as in the later litigations, who contended that there should be no interference with the freedom of American citizens, as such, except on the matters enumerated in the First Article. But, neither in our own American legislature nor in these state legislatures, as in the later litigations, was there one who knew the only legal and maintainable ground for that belief, the legal fact, as the Philadelphia Convention found it, that only the American people could validly grant government power to interfere with their individual freedom, and the legal fact that the American people, constituting their government, kept the legal situation, in that respect, exactly as the Philadelphia Convention found it, by the most important factors in the Tenth Amendment and the Fifth Article.

The amazing haste with which the ratifying legislatures exercised, for the first time in America, this imaginary power to interfere with the individual freedom of the American citizens is a matter of history. The manner in which that legislative exercise of imaginary government power over subjects was secured in many states is something with which we are all familiar. We desire, however, to emulate the example set by Madison and Hamilton in The Federalist, so far as judgment can restrain the honest indignation of citizens, when government undertakes to make them “subjects.” Therefore we leave it entirely to those who uphold the validity of the supposed new Amendment to substitute irrelevant matter, mostly personal abuse that is harmless in view of its source, for the sound legal arguments in support of validity, which they can never find until the Statute of ’76 is repealed and our constitutions of government are so changed that we cease to be citizens and become the subjects our ancestors were in 1775.

For those who would like to look upon all American governments as model exemplars of American respect for American law and American constitutions, the date of the proposal in December, 1917, and the quickness of ratification and the manner in which ratification was largely secured, are all matters most unpleasant to contemplate. Even now the most sincere advocate of the new Amendment never speaks of it without unwittingly showing his chagrin at the general knowledge that it was proposed and passed by governments when millions of the citizens of those governments were fighting and were armed to fight for human liberty, and that even governments would never have dared to pass it except at that particular time.

These facts, however, reflect only on the virtue of the Amendment. They have no bearing upon its validity. We average Americans are interested now only in that claimed validity. We know that, if it is valid, we have become subjects, that we are no longer citizens. We are seeking to find out when and how that change was made in our relation to all governments in America. Beginning on July 4, 1776, we have come down to December 18, 1917. We have found ourselves, on that day, still citizens. We know that our servant legislature at Washington made a proposal on that day, which was legally absurd, unless we had already become subjects. We have listened carefully to what they had to say, in support of that proposal, and have ascertained that they neither knew nor understood the most important factor in our Tenth Amendment and Fifth Article, by which our ancestors kept their own and our status as citizens. We know that the state legislatures could not change that status. Therefore we now simply note the fact that, in 1918, some of them ratified the proposal on the basis that all of us were their subjects. We know that our own government at Washington has acted, whenever it felt disposed to enforce the supposed new command against us and not to disobey it openly itself, as if we were the subjects of those ratifying legislatures.

We know also that in 1920, after more than a year of exhaustive study of our history and our Constitution and our laws by hundreds of our most eminent lawyers, all working for one object, the legal demonstration of the invalidity of the new Amendment, a chosen number of the most renowned “constitutional” lawyers in America appeared in the Supreme Court and orally argued against validity and filed the briefs against validity which were the result of this concentrated effort. We know also that, in that court, on behalf of our own government and on behalf of those other governments which that government has proclaimed to be the supreme dictator in America, there also appeared another chosen array of the most renowned “constitutional” lawyers, in the forefront being a former justice of that court, now the American Secretary of State. This latter array appeared to demonstrate how and when, since 1790, our own status was changed from citizen to subject and the collective legislatures of some of the states were substituted for ourselves as possessors of the supreme constitutional will in America.