Citizen or subject?

by Francis X. Hennessy

In the litigation and argument of that March, appeared many of the best known lawyers in America. Among them were distinguished counsel, appearing on behalf of those legislative governments who claim and, in the new Article, have attempted to exercise the omnipotent supremacy over the citizens of America which was denied by the people of America to the British Parliament. Among them were other distinguished counsel, appearing on behalf of what had always been known as the supreme legislative government in America, our government with its enumerated powers and without omnipotence over us. Among them were still other distinguished counsel, appearing on behalf of some separate states or political entities to contend that there existed no constitutional ability anywhere, even in ourselves, to take from their particular state any more of its sovereignty than it had surrendered in those early days when the states made the Constitution, as Sheppard claimed in the Congress of 1917. Among them were still other distinguished counsel, some of them the most distinguished of all, appearing to oppose, as best they knew how, the total destruction of all legitimate industry in a business in which it was the human right of Americans to engage even before Americans wrote their Statute of ’76 and consequently not a privilege of the citizen of America or the citizen of any state.

As this fact has been the basis of many errors in that comedy and tragedy of errors, which is the five-year tale of the Eighteenth Amendment, we average Americans may well dwell for a moment upon the certainty of that fact. It is the natural mistake of those, who have the Tory concept of the relation of men to government, that they should first confuse the meaning of the words “privilege of a citizen” with the words “privilege of a subject” and thus believe that the nature of both privileges, and the source of each are the same. That mistake is but the echo of the error which confuses the nature of Magna Charta with that of the Statute of ’76. Magna Charta is the declaration of certain privileges which government will permit its subjects to keep as long as the government pleases. The Statute of ’76 is the declaration that destroys the relation of government to subjects, creates the relation of citizens to their servant governments, and states that the servants shall have no power to interfere with the human rights of the masters, given by their Creator, except such power as the masters choose to give, and that the servants shall keep that power only so long as the masters will. To the Tory concept, always concentrated on the relation of subject to master government, it is difficult of apprehension that the human being is born with the right to use his human freedom as he himself wills, so long as he does not interfere with the similar exercise of human freedom by the rest of us human beings. If men, in the exercise of their free will, would always obey the defined law of Him who created them, the exercise of human freedom by one individual would never interfere with the exercise of human freedom by all other individuals, and no human government need ever be constituted.

Among the human rights of Americans, as of all human beings, when they come into the world, is the human right to do everything which is forbidden in the first section of the Eighteenth Amendment. It is true, as we frequently hear stated, that the Supreme Court has decided that the right to do any of those things is not the “privilege” of American citizens or of the citizens of any state. It is also equally true, although the Supreme Court has never been called upon to decide that very obvious fact, that the right to breathe is not the “privilege” of an American citizen or of the citizen of a state. Both rights are among the rights of human beings, as such, and they are each of them among the rights of themselves, which we, “the people” of America, established and ordained our Constitution to secure. When we established that Constitution for that purpose, we admittedly gave our only American government no power to make the command of the first section of the Eighteenth Amendment. That is why the governments of other citizens were asked to make the command to ourselves, the citizens of America.

Each of the Americans, who created the nation that is America, already lived as a member and citizen of a state. In that state, when they had constituted it, the citizens thereof had subjected their human right (to do what the new Amendment says shall not be done) to a power in the government of that state (a power which they gave it and can take back from it) to make that kind of a command to them in that matter.

We thus have clearly in our minds that the individual in America has the human right (with which the new Amendment interferes) and that it is subject to the interference of no government, except as the citizens of that particular government have given it power so to interfere with it. The undoubted fact that the right itself is not the privilege of the citizen of America or the citizen of the state is simply another way of saying that the original human right itself is not granted to the human being by government or governments but by the Creator Who made him. Without the Tory concept, no man would even make the mistake of believing that a citizen gets any of his privileges from any government. The privileges of a citizen are the things which he acquires by his voluntary association with the other citizens as the members of a political society which is the nation. The human rights of the same individual are the rights which he brings into that association and subjects to whatever powers of its government are granted by himself and those other citizens with whom he associates as the nation.

Of course, the early Americans, with whom we have now been educated, not only knew these things clearly and accurately, but on their knowledge of them based everything that they did in the fifteen years which we have lived with them. The Americans of today, who uphold the new constitution of government made entirely by government, do not know them at all or understand them when they hear them. Neither would the aristocrats of France, before the French Revolution, nor the Tories of England, even at the time of our Revolution, have known or understood them. That is why the Americans continued their Revolution and won it, so that these things might be the basis of every government interference with any human right. Later they made the American Constitution solely to secure the greatest possible protected enjoyment of all individual human rights. That security is one of the privileges acquired by citizenship in the society which that Constitution created. Wherefore, it is of interest for us to know how clearly Madison, who largely planned that Constitution and who worded its Fifth Article, did know and understand these facts in relation even to the very things forbidden in the new constitution of government made entirely by government.

In the House of Representatives, in the first session of the new Congress with the enumerated powers of the First Article, on May 15, there came up for discussion “a proposed bill laying duties on goods.” Madison “moved to lay an impost of eight cents on all beer imported. He did not think this would be a monopoly, but he hoped it would be such an encouragement so as to induce the manufacture to take deep root in every state of the Union.” (4 Ell. Deb. 345.)

That the knowledge of Madison was not unknown to the Supreme Court a century later, in 1890, is a matter of record.

That ardent spirits, distilled liquors, ale, and beer are subjects of exchange, barter, and traffic, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts, is not denied. (Leisy v. Hardin, 135 U. S. 100.)

Returning to the courtroom of 1920, therefore, we are sincerely glad to note the appearance of quite an array of eminent counsel on behalf of those legitimately engaged in a business which is just as legitimate an exercise of human right, as it was when Madison hoped that it would take deep root in every state of the America he loved so well, a business which will continue free from unlawful usurpation of power by government so long as the Constitution planned by Madison is obeyed by governments in America. It is too bad that the eminent counsel, who shared Madison’s views in relation to that legitimate business, did not also have Madison’s accurate knowledge of the only way in which legitimate government power can be created to interfere with that or any other human right, the way which Madison so clearly stated in the Fifth Article—by grant from the “conventions” of American citizens.