Citizen or subject?

by Francis X. Hennessy

CHAPTER XX
LEST WE FORGET

“The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.... Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They [the legislature] have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental Articles of the government.” (Fed. No. 53.)

Coming from Madison or Hamilton, this is the best kind of testimony that the earlier Americans, who established that constitution of government which is the First Article, knew that it was “unalterable by government.” And it is the best kind of testimony that the same American makers of the Madison Fifth Article knew that it did not grant to state governments any ability to add to or subtract from the First Article enumerated and constituted powers in government to interfere with the freedom of American citizens. If Madison and Hamilton had been with us in our Congress of 1917, their statement would have been slightly altered. They would have spoken of “the important distinction so well understood in America” in 1787, as one which “seems to have been little understood and less observed in any other country” and not known or observed at all by our Senators or Congressmen of 1917.

The Americans of 1787, who “so well understood” the important distinction, made their knowledge a noticeable thing in the language of their Statute of ’76 and of their Constitution. With their knowledge of the important distinction, they permitted the respective states, through the respective legislatures thereof, to constitute the government of states, to make the federal Articles of 1781. With their knowledge of the important distinction and in deference to their own clear Statute of ’76, these intelligent Americans refused to permit the states or the legislatures of the states to establish the government of men, to make the national Article—the First Article—which is the constitution of government power to interfere with individual human freedom. Moreover, by their knowledge of the important distinction and of the Statute, they knew that Constitution, that enumerated grant of national power over themselves, to be “unalterable by government.” And that we and all later Americans might also know it, they, the American people or “conventions” of that day, insisted that the Tenth Amendment expressly declare that they, those “conventions” of the American people, reserved to themselves and their posterity, the “conventions” of any later day, exclusive ability to alter that constitution of national power, the First Article. And, for the same purpose, they, the “conventions,” mentioned themselves, the particular reservee of the exclusive ability to alter that grant of national power, in one particular earlier part of the Articles they made, the part we know as the Fifth Article. Naturally, the two men, who worded that Article at Philadelphia and who paid its later makers the deserved tribute to their knowledge of the important distinction, mentioned those makers, “conventions,” in that Fifth Article as future makers of all grants of national power and mentioned the legislatures, in the Fifth Article, as competent future makers of Articles that do not constitute new national government.

Because we have lived through the experience of the Americans to whom the tribute was paid, we know the distinction between a constitution of national government, “unalterable by government,” and Articles constituting government of political entities or states, alterable by the states or the legislatures of the states. Moreover, by reason of our experience, we sense the clear recognition of the distinction in the Fifth Article distinct mention of the people or “conventions,” as sole makers of national Articles, and the similar mention of the “legislatures” as competent makers of federal Articles. To our regret, we have found that our Congress, in 1917, knew naught of the distinction and naught of its recognition in the language of the Tenth Amendment and the Fifth Article. It is with relief, therefore, that we turn to the great litigations in the Supreme Court of 1920, in which the lawyers of the America, where the important distinction was once so clearly known, attacked and defended the proposal from the Congress of 1917 and the action of the state legislatures on that proposal. Fresh from the utter legislative ignorance of that distinction, it is with relief that, in our first glance at the briefs of those lawyers, we find what seems the clear echo of the accurate knowledge we have acquired in the company of those earlier Americans.

“There is only one great muniment of our liberty which can never be amended, revoked or withdrawn—the Declaration of Independence. In this regard, it ranks with the Magna Charta.”

The clear tribute to the unrepealed Statute of ’76 excuses, while it does not explain, the error of the allusion to Magna Charta. Graduate students of the history of the advance of Americans from subjects to free men, we average citizens grasp the error of the statement, “in this regard [that neither can ever be revoked] the Statute of ’76 ranks with the Magna Charta.” We know that the Statute was the revocation of the basic doctrine on which Magna Charta rested. Magna Charta was the grant of privilege from an omnipotent government to its subjects. All that subjects ever have are the revocable privileges granted by the master government. The Statute of ’76 states the basic American law that there are no subjects in America, that the human members of any political society or state or nation, except as they directly grant power over some of their human rights to secure enjoyment of the rest, need obey the command of no one except Him who gave them their human rights. In a free nation, such as the earlier Americans made of themselves, no man has any privileges granted by a master government. In a free nation, citizens or members of the society (and the supreme will therein) have their servant governments to which those citizens give whatever national powers those governments ever have. Except for the grants of such power which those citizens so make, the human beings retain, not as a gift or privilege of government but as the gift of Him Who created them, all human freedom of action. As citizens, they also possess the particular privileges which arise from membership in that particular society of men; but even those privileges are not the gift of government but the creation and effect of the society itself, just as every power of the government is also the gift of the society.

We pardon the error of the reference to Magna Charta, however, when we read on in the brief and find it immediately quoting from our Statute: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among men, deriving their just powers from the consent of the Governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers on such form, as to them shall seem most likely to effect their Safety and Happiness.”

At last, in this brief, we are getting the clear echo of our own knowledge that, until this Statute is revoked, it is not the right of “government or governments” to institute new government, laying its foundation on such principles and organizing its powers in such form as to “governments” shall seem most likely to effect the safety and happiness “of governments.” Moreover, in this brief, we are getting the clear echo of our own knowledge that this Statute can never be revoked, while we remain free men and citizens instead of the subjects we were until that Statute was enacted.

And when we turn to another brief for a moment, we are cheered to find the refutation of the Sheppard ignorance of the identity of those who made our Constitution, “We, the people of” America, in its Preamble and its most important factor of the Tenth Amendment, the “conventions” of ourselves in its Seventh and its Fifth Articles. With gratification that some “constitutional” lawyers still know and observe the important distinction between the ability of ourselves, the “conventions” of the Seventh and Fifth Articles, and the lack of ability in the “legislatures” of the Fifth Article to give to government national powers, we average Americans recognize, in the following challenge of this brief, the challenge we would have made to the Sheppard proposition that legislatures attempt to constitute such new government over us. This is the challenge of the brief to Sheppard: “The Constitution is not a compact between states. It proceeds directly from the people. As was said by Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, etc.” Then follows the Marshall clear exposition of how the people themselves, the “conventions,” made the constitution which is the First Article and how, if any other constitution of that kind, such as the Eighteenth Amendment, is ever to be made “safely, effectively, and wisely” it must be made by ourselves, assembled in the “conventions” named in the Fifth Article. The full extract from Marshall has been set out already herein at page 98.