Citizen or subject?

by Francis X. Hennessy

We expect the lawyers against the new Amendment to challenge its existence with the facts and knowledge we bring from our education with the Americans who made themselves free men and citizens.

We expect the lawyers for the new Amendment to point out the day and the manner in which they claim that government of the American people by the American people did disappear from America.

Unless these lawyers for the Amendment do point out that day and manner and sustain their claim as to both, we know that the existence of the new Amendment is successfully challenged by the facts which we have acquired in our education. Before we listen to the expositions of these facts by the lawyers against the new Amendment, let us briefly review the facts themselves as they bear upon the supposed existence of the new Amendment.

When 1776 opened, the American people were subjects in rebellion against their omnipotent government. By direct action of themselves, in July, 1776, they made themselves free men, made their former colonies independent states and made each of themselves a citizen of some one of those states. Almost immediately, the Statute of ’76 having declared the actual fact that the supreme will in America was possessed by the American people, at their suggestion and with their permission, the citizens of each state constituted their own government with its national powers to interfere with the individual freedom of its own citizens. In strict conformity to the Statute of ’76 and to the sole American concept of the relation between government and human being, those grants of power to interfere with individual freedom, like every other grant of that kind until the Eighteenth Amendment, were made by the respective citizens to their respective governments.

In 1777 the committee of the American people known as the Second Continental Congress proposed a union of states or political entities and a general government to govern states but not to interfere directly with the human freedom of the individual. Because there is a vital distinction between the ability to govern states and the ability to interfere with individual freedom, those Americans knew that states or political entities could make federal Articles but that only citizens could ever validly make national Articles. It was impossible for these Americans not to know this difference between the respective abilities of states and citizens of America. Their Statute of ’76 had declared this sole American concept of the law controlling the relation of government to human being. They were actually engaged in their Revolutionary War for the very purpose of making it forever American law that no governments could ever grant national power in any matter. Because, therefore, the proposed Articles of 1777 were only federal Articles with grants of federal power, it was “felt and acknowledged by all” that the state legislatures were competent to make those Articles. So we recall, with intent to remember, that those federal Articles were made in the exercise of that legislative government ability to make federal Articles, which is mentioned in our own Fifth Article.

In 1787, from the same Philadelphia, there came the proposal that the American people, collectively the possessors of the supreme will in America, create a new nation, with themselves as its members or citizens and, as its members, constitute its government with national powers to interfere with their own individual freedom. Because the legal necessity of deriving powers of that kind from the people themselves was “felt and acknowledged by all,” the inevitable legal decision was reached at Philadelphia that the existing ability of legislative governments to make federal Articles neither then did nor ever could include the ability to make national Articles like the First Article and the supposed Eighteenth Amendment. By reason of that legal necessity and its then recognition by all, because the First Article contained grants of national power, “by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention.” The reasoning and the decision itself were embodied in Article VII and in the Resolution which went from Philadelphia with the proposed seven Articles, including the Fifth Article.

As the Supreme Court has definitely settled, the Tenth Amendment merely declares what was in that original proposed Constitution. Therefore the Constitution gave no new government ability anywhere except to the government at Washington. It gave to that government only specific ability to govern human beings, in certain matters. It merely reserved to each state government some of its former ability to govern its own citizens. It gave neither to any state government nor to all state governments collectively any new ability to govern. And it reserved to the American people themselves all ability to exercise or to grant any national power to interfere with the freedom of American citizens except those enumerated powers in the First Article. The Supreme Court has definitely settled that this reservation of such power exclusively to themselves, by the makers of the Fifth Article, is the most important factor in our constitutional distribution of that kind of power among our American government, our state governments and, most important of all, ourselves, the citizens of America. For which reason, until this generation, it has always been axiomatic that the mention of that exclusive ability of our own, “conventions” of Americans in their respective states, is the most important factor in the Fifth Article.

In strict conformity with the Statute of ’76 and without usurping the reserved powers of the most important factor in both the Tenth Amendment and the Fifth Article, seventeen federal changes were made, between 1789 and 1917, in the federal part of our Constitution, which is both a federal and a national Constitution. The situation in 1917 was exactly the same as it had been since July 4, 1776, when it was known even to the humble townsmen of Concord that governments could not make national Articles in American constitutions. Or rather, the situation in 1917 was the same unless, somewhere prior to 1917, the Statute of ’76 had been repealed and the most important factor in both Articles had been eliminated from the Fifth Article and Tenth Amendment of the American Constitution, which is the security of the American citizen against usurpation of power even by governments in America.

We know that Gerry moved to strike that important factor from the Fifth Article in September, 1789, and that he failed in his effort. We know that Webb and the legislative advocates of the new Eighteenth Amendment had a Fifth Article in which that most important factor was not present. Apparently they based their government proposal and government ratification of the Eighteenth Amendment upon a Fifth Article which did not contain that most important factor, the reference of the makers of the Fifth Article to themselves as the makers of all future Articles of a national kind, the reference of those makers to themselves in the words “conventions” of the American people, assembled in their respective states.

Keeping all these settled facts clearly in our minds, we now take up the arguments and the briefs in which, in March, 1920, the constitutional lawyers of America, who disputed the presence of the new Amendment in our Constitution, should have presented these irresistible facts. Then we shall take up the arguments and briefs of those other renowned lawyers in which they presented those other facts (still unknown to us average Americans) which can alone refute our knowledge that the new Amendment never went into our Constitution, because we are still citizens and governments are yet unable to create government power to interfere with our individual freedom.