Citizen or subject?

by Francis X. Hennessy

In a second brief, in a different case, the same distinguished lawyer of 1920 is found bringing into bold relief another part of our knowledge so intimately connected with the supposed new constitution of government, the Eighteenth Amendment. And it is a part of our knowledge which challenges a new constitution made entirely by governments without any action by ourselves, the people or the “conventions” named repeatedly in the Constitution made by themselves. In that other brief, we find him stating as one of the propositions on which he bases his argument, “What the expression ‘legislatures of the several states’ meant as used in Article V, when that Article was adopted as a part of the Constitution, it means now.” The statement being undeniably true, he immediately proceeds to urge, with equal truth, that “however popular approval or disapproval [i.e., the direct action of the people themselves, as, for example, in the ‘conventions’ whence, as he already stated, our Constitution proceeded ‘directly from the people’] may be invoked, the people do not become a ‘legislature.’... As well confound the creator and the creature—the principal and the agent through which he acts.”

This is the echo of Marshall’s clear statement of the vital distinction between the same “legislatures” (who never are the people and never have the reserved ability of the people) and the “people” or “conventions” (which are the people and have the exclusive ability of the people). We recall the tribute paid to this distinction at Philadelphia. We recall the legal decision there, a decision based squarely on that distinction, that the legislative ability to make federal Articles could not constitute new government of men, as did the First Article, and that all Articles like it or the new Eighteenth Amendment must go to the “people” of the Tenth Amendment, the “conventions” of the Seventh and Fifth Articles. We recall Marshall’s appreciation of the accuracy of that legal decision, when he mentioned that the ability of the state governments or legislatures had been competent to make the federal Articles of 1781 but, when it was proposed to constitute government of men, to vest the national powers of the national First Article, “the necessity of deriving those powers directly from the people [the “conventions” of the Seventh Article] was known and recognized by all.” We remember that the “people” or “conventions,” so recognizing and knowing, mentioned themselves in the Fifth Article so that no one ever should forget the similar legal necessity that every Article like the First, such as the new Article, must always be made by those “conventions” so mentioned.

It is, therefore, with considerable satisfaction that we read, in this brief of 1920, the clear echo of all these settled facts, the knowledge that “legislatures” never are the people and never become the people. “As well confound the creator and the creature—the principal and the agent.”

In our gratitude for such remembrance, we ignore the inaccuracy of a suggestion that the “legislatures” of the Fifth Article are the agent of the principal therein mentioned, the “people” of America, the “conventions” which made the Constitution. Each of those “legislatures” is an agent of one particular reservee among those named collectively in the reservation of the Tenth Amendment in the words “to the states respectively,” while the “conventions” in the Fifth Article is the one most important reservee in that Tenth Amendment, “the people” of America, the most important factor in that Tenth Amendment and in America. For the purpose of making any Articles, whether federal or national, that important reservee has no legislative agents. For any purpose, it has but one legislative agent, the Congress; and to that one legislative agent it has given no power to make any constitutional Articles; but it has, in the Fifth Article, left with that agent the mere ability to draft and propose a new Article of either kind and, as did the Philadelphia Convention, from the nature of the Article it drafts, whether within the ability of “legislatures” or within the exclusive unlimited ability of the people or “conventions,” to ascertain and propose which shall make the drafted Article.

That the state legislatures are not agents of the American citizens, in that capacity, is self-evident. Each legislature is chosen by the citizens of a state. Moreover, the Constitution itself distinctly states that the “conventions” of the American citizens grant no power of any kind therein to the state “legislatures.”

When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states. These powers proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. (Marshall in Sturges v. Crowinshield, 4 Wheat. 122.)

That is why anything which these “legislatures” do, when it comes in conflict with a valid action of our legislature, the Congress, must always yield. We have the supreme will in America, and when our agent, the Congress, speaks with authority from us, it speaks for us, while the inferior agents of other lesser wills never speak for us. That clear distinction does not detract from the ability of those legislatures to make federal Articles in our Constitution. They do not get that ability from us, the citizens of America. They had that ability from those respective inferior wills, when we made our Constitution. By its exercise, they had made the federation of states and the federal Articles of its government. When we made our national Constitution, we continued that federation and the ability of its component members to make its federal Articles and put them in our Constitution, which is both our national Constitution and their federal Constitution. The ability to make those federal Articles is one of the powers reserved to those inferior wills by the reservation of the Tenth Amendment which reads “to the states respectively”; and it is not an ability to make Articles which is granted in the Fifth Article. No ability to make Articles is granted in that Fifth Article.

Inasmuch, however, as the writer of the brief in 1920 has known that “legislatures” do not ever become “the people,” it is quite probable that his reference did not intend to suggest that the legislatures of which he spoke and who are the agents respectively of other citizens, were the agents, for any purpose, of the citizens of America. With his recognition that legislatures never are the people and with the other quoted extracts of those briefs of 1920 before us, echoing the knowledge we have acquired, we feel at least that in the court of 1920, from the debate of men who know, we will learn whether and “when” and “how,” we, between 1907 and 1917, became subjects instead of the free men and citizens which we clearly were up to 1907.

At least such was the thought of one American citizen, when he read this quotation, in one of the briefs of 1920, “that the people do not become a legislature.... As well confound the creator and the creature—the principal and the agent through which he acts.” It was almost incredible to this particular American citizen that he found this statement and the statement that—“The Constitution is not a compact between states. It proceeds directly from the people.”—both in the briefs of the foremost champion of the new Amendment. And it seemed equally incredible to him to find the quotation about the Statute of ’76 being “one great muniment of our liberty which can never be amended, revoked or withdrawn” in the brief of the counsel for the political organization which dictated the new state government command to the citizens of America.

An unusual method had been adopted for the hearing of what were later reported under the one title the “National Prohibition Cases,” 253 U.S. 350. In that hearing, which continued for days, seven different litigations were argued because all dealt either with the validity of the Eighteenth Amendment or with the meaning of its remarkable second section or with the statute enacted under that section and known as the Volstead Act. For the same reason, the briefs on both sides of the various litigations were clearly the result of conference and collaboration. Nearly all of the briefs, challenging the new Article, made their challenge on the same two main points and in the expression of those two challenges, made constant reference to the different expression thereof in the other briefs.