Citizen or subject?

by Francis X. Hennessy

3. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, ante, 221.

4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article V of the Constitution. (National Prohibition Cases, 253, U. S. 350, 384.)

We are not interested in the first two propositions which the Court negatived. They were that the Congress resolution should have said that two thirds of Congress deemed it necessary to propose the Amendment and that the proposals should have been made by two thirds of the entire membership of the House instead of two thirds of a quorum in each House. These are trifling and unimportant matters when over one hundred million Americans seek to learn when they ceased to be citizens of America and became absolute “subjects” of governments in America.

The third proposition negatived has naught to do with ourselves, the citizens of America. It deals only with the rights of some state citizens as such, where their state constitution has a referendum provision. For our protection against usurpation by any government of our own reserved rights or powers, we look to our own American Constitution. We have lived through its making with the Americans who made it to secure individual liberty of themselves and their posterity, ourselves, the citizens of America.

The clear statement of simple fact, expressed in the Court’s fourth conclusion, tells us something, which, with Madison, we have known since he wrote and suggested his Fifth Article, at Philadelphia, on September 10, 1787. Our stay in the “conventions,” which made the Fifth Article, has taught us that the Americans in them, even Henry and the opponents of the Constitution, were fully aware of the fact that the Fifth Article provided the CONSTITUTIONAL mode in which the “conventions” could thereafter exercise the existing omnipotence of the citizens of America themselves to make any kind of an Article of government. The same stay fixed firmly in our minds that every one in them knew that the Fifth Article is not a grant of any ability from themselves to themselves, from the “conventions” named in the Seventh Article to the same “conventions” named in the Fifth Article, all being the “conventions” of the American citizens assembled to exercise their own omnipotence.

And so, coming from the only “conventions” of that kind yet held, we grasp at once the absolute accuracy of the statement in the fourth conclusion of the Court in 1920. The mention of the same “conventions” in the Fifth Article, a mention made by the “conventions” of the Seventh Article, is the sound basis for our knowledge that, as the Tenth Amendment expressly declares, those “conventions” of the Seventh expressly reserved to themselves (the same “conventions” named in the Fifth, “the people” of America in the Tenth Amendment) their own exclusive ability to make national Articles, like the First Article and the Eighteenth Amendment. For which reason, we know the truth of the Court statement in its fourth conclusion, that the power to make the Eighteenth Amendment “is within the power to amend reserved by Article V.” The exclusive ability of the “conventions” of 1787 and 1788—to make the Article which is that new Amendment—is something known to all who were in those “conventions.” That the ability—to make Articles like the First Article and the new Amendment—remained exclusively in such “conventions” of the American citizens, because such Articles are national and either directly interfere with or are the basis for direct interference with individual freedom of the American citizen, was also known to every one in those “conventions.” That is why the Americans in those early “conventions” insisted that the Tenth Amendment expressly declare that such exclusive ability was reserved to them, “the people” of that Amendment, and why the same “conventions” mentioned themselves, the “conventions,” in the Fifth Article and provided therein the CONSTITUTIONAL mode of procedure in which that exclusive ability could thereafter be exercised by those who had it, the “conventions” of the American citizens.

Even though this knowledge, which we bring straight from the “conventions” which made the Fifth Article, be not shared at all by the lawyers of 1920, we are aware that it is also the knowledge of the Supreme Court. That is why Marshall long ago pointed out that, when individual welfare required that government should be granted some national powers or powers to interfere with individual freedom, “the necessity of deriving such powers from the people themselves was felt and acknowledged by all.” That is why in 1907 the Supreme Court again declared “the powers the people have given to the General Government are named in the Constitution, and all not there named, ... are reserved to the people and can be exercised only by them, or upon further grant from them.” As the First Section of the new Amendment is the exercise and the Second Section is the grant of one of those reserved powers, and as the Fifth Article provides the CONSTITUTIONAL mode of procedure in which it can be exercised or granted by those, who alone have it, “the people” of the Tenth Amendment and the “conventions” of the Fifth Article, it is very natural to read in the same Supreme Court, in the National Prohibition Cases, that the ability to make the Eighteenth Amendment “is within the power to amend reserved by Article V.”

When the Supreme Court of Marshall’s day knew that state “legislatures” could not make Articles like the First Article and the Eighteenth Amendment, when the Supreme Court of 1907 still knew that only the “people” or “conventions” could make Articles of that kind, when the Supreme Court of our own day knows that the Fifth Article deals only with “reserved” power, we Americans feel that we are to remain free men and citizens. We have come from the “conventions” with our own accurate knowledge that the power to make the new Amendment or any other Article like the First Article “is within the power to amend RESERVED by Article V.” But, for the very reason that our knowledge is accurate, we know that the power to make such Articles was not reserved to the state legislatures, who did not have it, but was reserved to the “conventions,” who did have it and who were exercising it (in making the First Article) at the very moment when they made the Fifth Article.

We have examined the four conclusions of the Supreme Court which deal with any argument presented against the existence of the Eighteenth Amendment. Those conclusions negative every such argument that was presented. But, because every brief assumed and asserted that the amending power “reserved” in the Fifth Article had been “granted” therein, the four conclusions make clear that the Court has yet to hear and pass upon the challenge which reads the Eighteenth Amendment out of our Constitution. When that challenge is presented by American lawyers, who know what American basic law is and how American citizens are constitutionally protected against usurpation of power by governments in America, there can be no doubt of the decision of the Supreme Court. In that decision, there will be no conclusion denying the most important legal fact in America, namely, that governments cannot exercise ungranted power or create new government power to interfere with the individual freedom of the American citizen. In that decision, there will be again the simple statement of the undoubted fact that the ability to make the Eighteenth Amendment “is within the power to amend reserved by Article V.” But, in that decision, there will be added the plain statement of the Tenth Amendment that such ability was not reserved to the state legislatures who never had it, but was reserved to the “conventions,” who always had it and still have it. And, comparing that future decision (which is certain to come from the Supreme Court) with the decision, which merely negatived the four unsound challenges which were made to the Eighteenth Amendment, we know that the first five conclusions of the latter decision—all the conclusions that have aught to do with the existence and validity of the Eighteenth Amendment—merely hold that the existence of the new Amendment is not affected by any of these challenges which were made.

With exceeding wisdom in our humble opinion, the Court carefully refrains from passing upon or determining any question except the exact challenges which were presented. That is why no opinion was written. When any general statement (seeming to bear upon questions not presented or submitted) might come back to perplex and annoy the Court in future litigation where protected liberty of the American citizen was the challenge to the government-made new Article, common sense and sound reason and the experience of generations dictated that no general statement should be made. And, as there was but one way to avoid a single general statement, no opinion was written. This method of deciding those particular litigations, with their four unsound challenges, would leave the decision itself without even an apparent influence upon a litigation in which some real challenge might be presented.