Citizen or subject?

by Francis X. Hennessy

Every argument, whether for or against the new national article, is based upon the sheer and absurd assumption that the “conventions” in their Fifth Article did make a grant to themselves, the “conventions,” and to the state governments. The advocates of the new Article assume that the “conventions” granted to themselves and to the state governments all the inalienable omnipotence of the American people themselves, in their aggregate capacity as the citizens of America, the very omnipotence the supposed grantors were exercising when they made the Fifth Article. The opponents of the new national Article assert the absurd assumption of a “grant,” but contend for diverse reasons—remarkable by reason of the fallacy of a “grant” on which each rests—that the “conventions” grant to themselves only a part of the omnipotence which they already had and were exercising when they made the supposed “grant.” On which theory, they urge that the supposed “grant” to the state governments, being identical with the supposed “grant” to the grantors themselves, is only part of the omnipotence which the grantors already had and does not include ability to make Articles like the Eighteenth Amendment.

Not one of these briefs recognizes or urges that the Fifth Article is not a “grant” of ability to make Articles whether federal or national. No brief knows the Fifth Article to be simply the ratification, by the whole American people, of a hitherto revolutionary mode of procedure as the future CONSTITUTIONAL mode in which may be exercised either the existing and limited ability of state legislatures to make federal Articles or the existing and unlimited ability of the “people” (the “conventions”) to make any Articles. No brief either recognizes or urges the absurdity of the thought that the “conventions” intended to grant or did grant to themselves, the “conventions,” any part of the omnipotence which the supposed grantors were actually exercising when making the supposed grant.

No brief recognizes that one of the supposed grantees is the supposed grantor. No brief seems to know that the supposed grantees were respectively competent makers of certain kinds of Articles even before the Fifth Article was written at Philadelphia. No brief seems to know—or to sense the decisive effect of the fact—that, within the twelve years which immediately preceded the supposed “grant,” each of the two respective makers of Articles, who are mentioned in the Fifth Article, had exercised its respective ability to make Articles of a certain kind. No brief seems to know that one of the supposed grantees, the “conventions,” at the very moment of the supposed “grant,” was exercising its own unlimited ability to make Articles of every kind. For all that the briefs disclose, in the decisive effect of the two facts upon the supposed validity of the Eighteenth Amendment, the “state legislatures” might never have made the federal Articles of 1781 and the “conventions” might never have made the federal and national Articles of 1788.

No brief urges the greatest legal decision made at Philadelphia in 1787 as binding legal authority that the state “legislatures” of the Fifth Article never can, while the Fifth Article “conventions” always can, make a national Article like the First Article or the Eighteenth Amendment. One brief does suggest that decision as authority for the absurd proposition that the Fifth Article mentions no CONSTITUTIONAL mode in which even the exclusive ability of the “conventions” of the American citizens can be again exercised to make Articles like the First Article and the Eighteenth Amendment. In urging that absurd proposition, the briefer wholly ignores the fact that the Philadelphia Convention, which made that legal decision, reached its conclusion by ascertaining what were and still are the respective abilities (to make Articles) of the state “legislatures” and the “conventions,” both of which are named as future makers in the Fifth Article.

No brief recognizes the fact (or urges any argument based upon it) that the Constitution is both a federal and a national Constitution. For which reason, no brief points out that the Tenth Amendment expressly reserves the ability to make federal Articles to the state “legislatures” and the exclusive ability to make national Articles to the “conventions.” For which reason, no brief points out that each of the two reservees, named in the Tenth Amendment, is mentioned separately in the Fifth Article as a possible maker of future articles, whenever a proposed future Article is of the kind which the existing ability of the proposed maker is competent to make.

No brief, against the new Amendment, challenges the sheer and absurd assumption that the Fifth Article is a “grant.” No brief, for the new Amendment, offers or suggests the slightest fact in support of that sheer assumption.

Every brief for the new Amendment, on the fallacy of the sheer assumption that the Fifth Article is a grant, contends that the Article makes a fractional part of the state legislatures an omnipotent Parliament for the American people, a Parliament not restrained by any constitutional limitations in state or national constitutions but a Parliament which can do what it will with every individual right of every human being in America. These briefs neither know nor care that their concept of the Fifth Article means that the “conventions” of the American citizens, twelve years after the Declaration of Independence, intended to make and did make themselves absolute “subjects” of governments, not one of whose legislators was to be elected by Americans in their capacity as American citizens. The foremost of these briefs were written by eminent “constitutional” lawyers who had, as clients, the very governments which claimed this omnipotence over individual Americans as their “subjects.”

Every brief, against the new Amendment, not only admitted but asserted the absurd assumption that the Fifth Article is a “grant” to the grantors and to the state governments. In the foremost brief against the new Amendment, that absurd assumption is asserted or mentioned over fifty times. On this absurd assumption, every argument, in these briefs, as well as in the opposing briefs, is based. In this respect, there was but one difference between any brief and another. That difference was in reference to the extent of the supposed “grant” which the grantors made to themselves and to the state governments.

Not one brief, presented in these litigations of 1920, knew or urged the undoubted fact that, because our government is both federal and national, if it wants new power to interfere with the freedom of the American citizen, that government can get that power in only one CONSTITUTIONAL mode, through the “conventions” named in the Fifth Article. No briefer knew the legal necessity that all power of that kind must be obtained directly from the citizens of America, assembled in their “conventions.” We ourselves know that there was a day in America when that legal necessity “was felt and acknowledged by all.” It is almost impossible for us, therefore, educated as we are in the experience of the Americans who did know, to believe these statements about these briefs. Yet the briefs speak for themselves.

Before, however, we turn to verify the statements by the briefs themselves, it is well that we recall one amazing question and answer, during the arguments of 1920 in the Supreme Court, which question and answer overwhelmingly demonstrate that none of these “constitutional” lawyers knew or cared about the facts we know.