Citizen or subject?

by Francis X. Hennessy

The Supreme Court had listened, for several days, to many clever arguments against the new national Article. The arguments had challenged validity on the ground that the new Article infringed upon the political freedom of some political entity, such as a state or its government. Sometimes the arguments had challenged validity on the ground that the new Article infringed upon the liberty of the citizens of some particular state. No argument had challenged validity on the one patent and unanswerable ground that the “conventions” of 1788 had provided that no national Article, which (like the First Article and the Eighteenth Amendment) directly interferes with or grants power to interfere with individual liberty of the American citizen, could ever be CONSTITUTIONALLY made, except in the one CONSTITUTIONAL mode of procedure, in which the only competent makers of national Articles can make such Articles, the “conventions in three fourths of” the states, mentioned in the Fifth Article.

Rice of Rhode Island, one of the many prominent lawyers against validity, was urging his particular argument. Ignoring the citizens of America in the “conventions” of the Fifth Article, he claimed that no power in America could interfere with individuals in Rhode Island, outside the First Article matters, without the consent of Rhode Island itself. He was interrupted by the Court. In substance, this is the question and answer that followed: Justice Brandeis: “The court is now fully acquainted with the nature of the arguments of the various counsel as to why the new Article has not been validly made. The Court would like to know, In what way do counsel think that the new Article could be constitutionally made?” And the answer of Rice, undoubtedly voicing the conviction of all his colleagues, for none of them had any other answer to volunteer, was: “In no way.”

Fresh from the “conventions,” which knew that they could have made what is supposed to be the Eighteenth Amendment, we could make the correct answer to that question. Our answer is that the “conventions” of the whole American people could have made this new Article in 1788 just as they did make the First Article of exactly the same kind. They could have made it, not because any Constitution gave them the power to make it. They could have made it because, in its making, they would have exercised exactly the same existing ability which they exercised when they destroyed the power of the British Government over themselves in 1776, which they exercised when they ended the complete independence of each state in 1788 and which they exercised when they made all the Articles of 1788. When they did each of these things, they had prescribed no “constitutional” mode of procedure in which they might constitutionally exercise that exclusive ability of their own. By the declaration of the Tenth Amendment, they reserved that exclusive ability to themselves. And, in the Fifth Article, they prescribed, for the first time, exactly the same mode, in which they were then exercising that exclusive ability, as the future CONSTITUTIONAL mode for its further exercise. As Marshall stated, in the Supreme Court, there is but one way in which they can exercise it, “safely, effectively, and wisely,” by assembling in their “conventions” in their respective states.

If the accuracy and truth of this sole possible correct answer to the question of 1920 is so well known to us, certainly it should have been known to at least one of the “constitutional” lawyers of 1920. Moreover, every “constitutional” lawyer of 1920 should have known that the mention of state governments in the Fifth Article was not intended to make them omnipotent over the individual rights of the American citizen or to provide an unsafe, ineffectual and unwise way or any way in which government in America could create new government power to interfere with individual freedom.

Madison wrote the Fifth Article. Immediately after he had secured its proposal from Philadelphia, in the Virginia convention he paid his famous tribute to the “conventions”—but not to the “state legislatures”—which he mentions in his Fifth Article. “Mr. Chairman, nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on the form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” (3 Ell. Deb. 616.)

But, whatever the ignorance of our constitutional lawyers, we know why Madison, in his Fifth Article, mentions these “conventions” in which free inhabitants are seen deliberating on new grants or constitutions of government power to interfere with individual freedom. When future grants of such power are suggested, there is to be a CONSTITUTIONAL mode prescribed for the reassembling of such “conventions” to make or refuse the grants.

Our experience with Madison and his colleagues would educate these “constitutional” lawyers to keen realization that the Americans of old knew the vital distinction, so important to individual liberty, between permanent and existing state legislatures and these “conventions” of the American people themselves, chosen for the one purpose of answering “Yes” or “No” to a particular question previously carefully considered by all the American citizens.

Let these “constitutional” lawyers spend a moment with Hamilton, on Friday, March 14, 1788, when he was urging the American people to adopt the Constitution with that Fifth Article.

He was discussing the mode which that Constitution provided for the election of the Chief Executive of the new nation. The mode was that the American citizens, in each state, should elect a temporary convention of delegates to deliberate upon and cast the votes of Americans in that state for some American as President. We sense, at once, the striking similarity between the temporary body, thus to be chosen for that purpose, and the temporary body or convention also to be chosen to pass upon the other single question, a “Yes” or “No” to some particular proposed new grant of government power to interfere with individual freedom. The danger to individual liberty would necessarily be much less in having a permanent government body, the legislature, cast the vote of the Americans in its state for an Executive, than in having the same permanent government body or legislature say the “Yes” or “No” of the Americans in that state to a new grant of government power to interfere with the individual liberty of all Americans. Therefore, if we find Hamilton dwelling upon the danger of state legislatures casting American votes for the American Executive, we can be quite certain that neither Madison nor Hamilton nor their colleagues mentioned the existing ability of legislatures to make federal Articles (when these men worded and made their Fifth Article) in order that their words might be twisted away from any possible English meaning and say that the citizens of America appointed these state governments, not a member of which is chosen by the citizens of America, to be their omnipotent attorney in fact for every purpose in the world, forever.

This is what Hamilton had to say on the danger to liberty, if permanent state legislative governments, instead of special American delegates chosen for that purpose, should even elect the American President: “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”