Citizen or subject?

by Francis X. Hennessy

It is a fact that the Americans in each former colony, in 1776, constituted a state for themselves and a government of that state and subjected that particular right, as all their individual human rights, to the general welfare state power of that government, the power which is now known as the police power.

It is a fact that, from 1776 to 1787, that particular individual right, as all the human rights of the citizens of any state, was subject to no interference by any government or governments in the world except the one legislative government of that particular state. It is a fact that all the legislative governments of the other states and the government of the federation of states could neither exercise nor grant, as some of them have attempted to do in the Eighteenth Amendment, any power to interfere with that particular individual freedom or any other individual freedom of the citizens in that particular state.

It is a fact that, on June 21, 1788, the Americans in the nine states became collectively one political entity, the citizens of America, composing the nation which is America. It is a fact, and a fact which flatly denies the existence of the Eighteenth Amendment, that, on June 21, 1788, the existing state legislatures did not become an omnipotent legislative body of the new nation “invested with power to legislate” for American citizens “in all cases whatsoever” in interference with our individual freedom. It is a fact that those legislatures did not then become any government for the citizens of America on any subject whatsoever.

It is a fact that not one of those state legislatures received any new power to interfere with human freedom anywhere by any grant of such power in the seven Articles of our Constitution. The opening words of the First Article expressly so declare. They are, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” Moreover, the Tenth Amendment, the declaration insisted upon by the whole “people” of America in their “conventions,” expressly so declares. Its declaration is that the entire Constitution gives no new power to any government except the new government of America, the government constituted by the First Article.

It is a fact, again a fact which denies the existence of the Eighteenth Amendment, that the general constitutional restrictions upon government power to interfere with individual freedom are restraints upon the exercise of every grant of such power in the Constitution, and that they do not restrain the state governments because those governments are the donee of no power of that kind in that Constitution. This fact, a patent fact hardly needing settlement, was decisively settled in 1833 by the decision of the Supreme Court, announced by Marshall, in Barron v. Mayor of Baltimore, 7 Peters, 43. Barron contended that the Fifth Amendment restrained the power of the state governments. Marshall said:

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

The decision settled that the entire Constitution vested in the state governments not a single power to interfere with individual freedom in any respect. The decision is based on that one fact. The fact and decision expose the absurdity of the thought that the Fifth Article is a “grant” of any such power to the state governments, much less a grant of every such power to those governments. This absurd thought, however, is the assumption on which every advocate of the Eighteenth Amendment based his argument in March, 1920: and it is the assumption upon which wholly depends the existence of the Amendment.

It is a fact that the state legislatures, before the Constitution was even proposed, had existing ability to make federal Articles. It is a fact, as the Tenth Amendment declares, that the “conventions” of the Seventh Article reserved that federal ability to those state governments and that the Fifth Article did not “grant” it to them. It is a fact, that the “conventions” of ourselves, the American citizens assembled in their respective states, the “conventions” of the Seventh and the Fifth Article, even before the Constitution was worded or proposed, had exclusive ability to make national Articles, which either directly interfere or grant ability to interfere with individual freedom. It is a fact that this power of the “conventions” included the ability to make any kind of Article, either federal or national. It is a fact, therefore, as the “conventions” of the American citizens had this omnipotent power before the Fifth Article was even drafted, and as the Tenth Amendment states that they reserved it to themselves, that they did not grant all of it (as the advocates of the new Amendment claimed in March, 1920), or part of it (as the opponents of the new Amendment claimed in March, 1920) to themselves in their own Fifth Article. It is a fact, therefore, that the mention of the two existing abilities (the existing omnipotent ability of the “conventions” and the existing limited ability of the “state legislatures”) does not make the Fifth Article any “grant” of power either to the “conventions” (who made the Article) or to the state “legislatures.”

It is a fact that the very “conventions” named in the Fifth Article and the American citizens assembled therein, while they were making that Article, accurately knew that it was nothing but a constitutional mode of procedure for two distinct and existing powers, and that it did not “grant” any power whatever to the state governments.

Speaking of the Constitution, with its Fifth Article, the entire convention in Virginia declared that all the powers granted in the Constitution were being granted by the people of America “and that every power, not granted thereby, remains with them, and at their will.” Nothing could more clearly express the knowledge that the Fifth Article was not a grant of any power by the “conventions” to the “conventions” or to the state governments. In the Virginia convention, Lee stated: “This new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated [in the First Article] in that paper.... Candor must confess that it is infinitely more attentive to the liberties of the people than any state government.” (3 Ell. Deb. 186.)