Citizen or subject?

by Francis X. Hennessy

In the South Carolina convention, Pinckney said: “With us, the sovereignty of the Union is in the people” (4. Ell. Deb. 328), and again “I conceive it as indispensable, in a republic, that all authority should flow from the people.” (4 Ell. Deb. 326.)

Hamilton, one of the people assembled in the New York convention, said: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority,” the people themselves, the “conventions” of the Fifth Article and the Seventh, “whenever it may be necessary to enlarge, diminish, or new-model the powers of government.” (Fed. No. 49.) He could hardly have made more clear his knowledge that the Fifth Article was not a “grant” of power to the state governments. As Madison and Hamilton proposed and seconded the only Fifth Article, at Philadelphia, which ever mentioned the state legislatures, their own words have great weight in the interpretation of its language. For which reason, it is well to recall again that Madison, in Federalist Number 37, clearly said that “the genius of republican liberty seems to demand ... not only that all power should be derived from the people.” And either Madison or Hamilton said in The Federalist, Number 49, the reference to the Fifth Article being unmistakable from what they said, “There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” As they both maintained, at the Philadelphia Convention and thereafter, that the ability of state governments was incompetent to constitute government with national powers to interfere with human freedom, and as they both repeatedly stated that it would be contrary to the genius of republican liberty that any governments should have that ability, they have made unmistakable their knowledge that the Fifth Article, which they proposed and seconded and which Madison probably worded, did not grant any such ability to governments.

In the Pennsylvania convention, Wilson clearly expressed the knowledge which reads the new Eighteenth Amendment out of our Constitution, when he said: “In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with.” (2 Ell. Deb. 437.) Can any man, even a modern “constitutional” lawyer, reconcile that knowledge with the thought that the Fifth Article is a grant of power to the state governments? Again in the same convention, he said, speaking of our Constitution: “Here, sir, the fee simple of power remains in the people at large and by this Constitution they do not part with it.” (2 Ell. Deb. 435.) In the North Carolina convention, Iredell, later on the Supreme Court Bench, said: “No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution.” (4 Ell. Deb. 149.)

All these facts should be dwelt upon and emphasized in the briefs of the lawyers against the new Article in which government attempts to exercise ungranted power and to grant new power to interfere with the individual freedom of the American citizen. And against all our education in the “conventions,” it must be the burden of the briefs of the lawyers for the new Amendment to uphold the amazing proposition that all the individual rights of the American citizens were, by the Fifth Article, made subject to a supposed omnipotence granted to the state governments, not a member of which is chosen by the citizens of America.

CHAPTER XXII
NO CHALLENGE TO THE TORY CONCEPT

We average Americans, therefore, come to the courtroom of 1920 with some knowledge that is a mathematical certainty. We know that everything done at Philadelphia by the “conventions” named in the Seventh Article was done with one dominant purpose—the security of individual human freedom. We know that, at Philadelphia and in those “conventions,” the old states and their governments, the federal government and its continuation in the new Constitution, the new nation and its Constitution and its government were only important as the American citizens considered that each or all would contribute to the security of American individual freedom. We know that, only in rare instances, such as that of Gerry, did a Tory mental attitude lead a man into the error (for any American after ’76) of thinking that political entities (such as states or nations or their governments) have the slightest importance except in so far as they contribute to the individual freedom of the citizens who create them and must control them, if an American is to remain a citizen. We know that every American, in those “conventions,” discussed and voted upon every mention of these political entities, with insistent realization that nothing anywhere in the Constitution was intended to disturb or did disturb the legal fact that only the citizens of America, in “conventions,” ever could say how much national power the new government should have, how much each old state should be allowed to retain over its own citizens and how much the citizens of America should reserve from all governments in America. We also know this legal fact to have been the most important legal fact in America to the Americans in those “conventions.” We know that it was the legal fact whose denial by the British Parliament caused the Revolution. We know that, from July 4, 1776, everything which the Americans did was solely to make it impossible that any one could ever deny this legal fact in America.

And we also know, something that has been entirely ignored since 1917, that these “conventions” knew that the “conventions” of the Seventh and the Fifth Articles were identically the same thing and were the most important reservee in the Tenth Amendment, “the people” of America, in their aggregate and collective capacity as Henry accurately put it.

With this simple and amazingly important knowledge of facts, a knowledge acquired by our education with the Americans who made themselves and their posterity free men instead of “subjects,” we come to the arguments and briefs of 1920. There we expect to learn how the opponents of the Eighteenth Amendment presented and its supporters answered these facts. Because these facts we do know, if they are all the facts, flatly deny the existence of that new national Article, made by governments alone.

If forbearance were the sole rule for conduct, if conscience permitted us to ignore the great danger to our own individual freedom in every matter, we would be absolutely silent as to the contents of all those briefs. But, that the supposed presence of the new national Article in the national Constitution of a free people may never be a precedent for other government making of national Articles, it is our duty to learn and state what those briefs all disclose.

Not one of them recognizes the identity of the “conventions” of the Fifth Article with the “conventions” of the Seventh. And all ignore the identity of the Fifth Article “conventions” with “We, the people” of America, in the Preamble, and with the most important reservee of the Tenth Amendment, “the people” of America.