Citizen or subject?

by Francis X. Hennessy

And so we find the Court merely stating “that we reach and announce the following conclusions on the questions involved.” Nothing could make more clear that no conclusion is reached or announced on any question not presented by those who urged invalidity.

The first four conclusions reached and announced are conclusions of law against the opposite legal conclusions urged by those opponents. The fifth conclusion is a conclusion of fact that validity of the Amendment is not affected by any of the four propositions advanced by the opponents of the Amendment. In other words, the first five numbered conclusions, all that deal with validity of the Amendment, can be expressed in our own words, viz: “Although the proposing Resolution did not state that Congress deemed the proposal necessary, although only two thirds of a quorum in each House (and not two thirds of the membership of each House) made the proposal, although the citizens of each referendum state have not acted as part of their respective state legislatures, and although it is urged that the Fifth Article reserved abilities do not include ability to make an Amendment like the Eighteenth, we decide that none of these things affect the validity of the new Article.”

And, when we make this accurate statement of what was decided in those National Prohibition Cases, we average Americans, fresh from our education with the Americans who found themselves “subjects” and made themselves and their posterity free men, have some startling facts brought home to us.

Undoubtedly thousands of lawyers had worked, for more than a year, in the preparation of the arguments that were made and the briefs that were filed. When these amazingly important litigations were reached, the arguments lasted for several days. On the exhaustive briefs filed against validity, there appear twenty-two lawyers, many of them among the leaders of the American Bar. On the briefs to support state government omnipotence over the citizens of America, “in all matters whatsoever,” thirty-five lawyers, headed by a former member of the Supreme Court, appear.

We know, with a knowledge that brooks no denial, because it is a knowledge brought from our experience with those who made themselves free men and established the Constitution to secure that result to themselves and to us, that the new Article is not in the Constitution unless at some time prior to 1917, the free men of America, all the individual citizens of America, became the “subjects” of some state governments.

It is clear, therefore, that the existence of the Eighteenth Amendment has always depended upon the correct answer to the question whether the American is “Citizen or Subject?”

If we are subjects, the new Article may be in the Constitution not made by us but made by governments.

If we still are citizens, as once undoubtedly we were, the new Article cannot be in our Constitution, because we have not made the new Article, assembled in our “conventions.”

Where men are citizens, governments cannot exercise ungranted power or create new power to interfere with individual liberty.

In a nation of free men, established by former “subjects” with a dominant purpose that no American should ever be the “subject” of any governments, it is amazing that one government should propose that governments constitute, and it is amazing that forty-six governments should attempt to constitute, new government of men—new government power to interfere with individual human freedom.