Citizen or subject?

by Francis X. Hennessy

But most amazing of all, in a nation with the history of America, is the fact that, when audacious government had so proposed and audacious governments had so attempted, the prolonged arguments and voluminous briefs of fifty-seven leading members of the American Bar never once knew or stated the simple fact which made the proposal and the attempt a legal and constitutional absurdity. The fact itself, the one most important legal fact in America, was once known and “felt and acknowledged by all” Americans. Yet, not once in any brief in the National Prohibition Cases, was it either known or urged that the “conventions” of the Fifth Article are the “conventions” of the Seventh Article and that both are the whole American “people” of the Preamble and the Tenth Amendment and that, therefore, the Constitution expressly reserves to the “conventions” of the Fifth Article, the citizens of America, their existing and exclusive ability to create new government power to interfere with their own individual human liberty.

Why none of these briefs did make this challenge became known to us when Rice of Rhode Island, with the silence of his colleagues marking their approval, answered the Court that the new Article could not be constitutionally made. Why they did not make the challenge will be emphasized when we read the leading brief against the new Amendment. Over fifty times it will admit and state that the Fifth Article is a “grant” of power to state legislatures from American citizens and claim the “granted” power is a limited power and does not include ability to make an Amendment like the Eighteenth because such Amendment takes away the reserved power of a state or political entity. Then, to emphasize what it does not know about the “conventions” of the Fifth Article and the reserved powers of the citizens of America, this brief will go on to tell us that there is no constitutional mode in which can be made an Article which takes more power away from any state; that such an Article may only be made, outside any constitutional mode, by having the people themselves rescind “the social compact” which is their American Constitution and having them make “such new compact as they please”; but that such new compact, such new Article of that kind, cannot “be validly and legally made to come to pass against the objection and protest of any state.” All this clearly explains why none of the briefers were able to answer correctly the question asked by the Court. How could they tell the Court in what way the Eighteenth Amendment could be constitutionally made, when all of them “knew” that there was no constitutional mode in which the “conventions” of the American citizens could make it, and when they “knew” that it could not be made, even outside the Constitution, without the consent of the citizens of every state? The most important words in the Fifth Article, “in conventions in three fourths thereof,” did not mean to these briefers what they meant to the Americans who made the Fifth Article or to Madison and Hamilton who wrote the Fifth Article and suggested it at Philadelphia. In the word “conventions,” they did not recognize the Seventh Article “conventions” of the American citizens describing themselves by exactly the same word, “conventions,” in the Fifth Article. In the words “in three fourths thereof” after the word “conventions,” they did not recognize the great security to human freedom which we have learned with the Americans who wrote and who made the Fifth Article. They did not recognize how the American people, by these words, made it their constitutional command that they themselves, again assembled in their conventions, by a “Yes” from three fourths of their “conventions” and without the consent of the Americans in the other “conventions,” might withdraw any power granted in the First Article and might add any new power to its enumerated grants, whenever they deemed such withdrawal or such addition would better secure and protect American individual liberty.

That not one of the briefers did make our challenge is our certain knowledge when we read the four challenges they did make and which are negatived in the first four conclusions of the Court.

The first two relate to the manner of the proposal that governments create government of men in America. Who cares how one government makes a silly proposal? The one important thing is that no governments shall attempt to act upon a proposal which denies the most important legal fact in America, that governments cannot constitute new government ability to interfere with individual liberty.

The fourth challenge that was made is the absurd challenge that the Fifth Article does not mention a CONSTITUTIONAL mode of procedure in which the citizens of America may again directly grant to their government new power to interfere with their own individual liberty and in which—far more important to the “conventions” which named themselves (the “conventions”) in their Fifth Article—the American citizens can directly take back any part of the granted power of the First Article which they find oppressive to their individual liberty. This challenge neither knows nor makes any distinction between the state “legislatures” and the “conventions” of the American citizens or the mention of either in the Fifth Article. It is a challenge which has not the knowledge we bring from the first “conventions,” the knowledge that “legislatures” are mentioned on account of their existing ability to make federal or declaratory Articles and that “conventions” are mentioned on account of their exclusive ability to make Articles of any kind. It is a challenge which assumes and asserts and is based wholly upon the absurd assumption that the Fifth Article is a “grant” of power to make Articles. On this absurd assumption of this patently absurd “grant,” this fourth challenge, frankly stated in our own words, is as follows: “In the Fifth Article, the ‘conventions’ grant to the two grantees—the grantors and the state legislatures—an identical ability to make new Articles. We admit that, if the ‘conventions’ of the Fifth Article could constitutionally make the Eighteenth Amendment, the state legislatures can also constitutionally make it. But our challenge is that the ‘grant,’ in the Fifth Article, is limited in extent and that neither the ‘conventions’ nor the state legislatures can constitutionally make the Eighteenth Amendment.”

To the “constitutional” lawyers who make this challenge, to all who support such challenge, we commend many hours’ study of the statements of Madison, who wrote the Fifth Article; of Hamilton, who supported its introduction at Philadelphia; of Wilson, Pendleton, Henry, Iredell, MacLaine, Jarvis, Lee, Mason, and the many others, with whom we have sat in the “conventions” which made the Fifth Article. Particularly do we commend a careful reading of the reasoning which led to the decision at Philadelphia, in 1787, that the First Article, because it constituted government of men, must go to the “conventions” named alike in the Seventh and the Fifth Articles and could not be validly made by the state “legislatures” named in the Fifth Article. That decision was based upon the unrepealed Statute of 1776, a statute well understood in 1787, only eleven years after the Statute itself had been enacted as the command of the whole American people. Finally, to those who support this fourth challenge, we commend a thorough reading of the law laid down by Marshall in the Supreme Court. If they thus educate themselves as we have educated ourselves, they will be able to say with Marshall: “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, ‘in order to form a more perfect Union,’ it was deemed necessary to change this alliance into an effective government possessing great and sovereign power and acting directly on the people, the necessity of referring it to the people and of deriving its power directly from them, was felt and acknowledged by all.”

And, if all shall complete their education with such men as Webster and Lincoln, they will never again make the mistake of ignoring the vital and important distinction in identity between “state legislatures” and “conventions” of the American citizens, the distinction that the former are never anything but governments and each the government agent of the citizens of one state, while the “conventions” are the citizens of America itself assembled in “conventions” to issue their commands to themselves, to their government, to the states and to the state governments. The completed education will enable these lawyers to win future litigation against legislative governments who audaciously attempt to usurp the exclusive and reserved powers of the “conventions” of the American citizens.

In any of the three challenges negatived by the first, second and fourth conclusions of the Supreme Court, we have failed to find any suggestion of our challenge, namely, that state “legislatures” have audaciously attempted to usurp the exclusive powers reserved to the “conventions” which are named in the Fifth Article.

And now we examine the only other challenge that was made, a challenge negatived by the third conclusion of the Supreme Court. No challenge could more emphatically ignore the protected individual liberty of the citizen of America. This challenge does not know that American citizens have no government save the government of enumerated powers. This challenge frankly admits that the Fifth Article is a grant to legislatures, each elected by the citizens of some particular state, and that three fourths of those legislatures have the omnipotence, which was denied to the British Parliament, over every individual liberty of the American citizen. Like the other challenges that were made, like every brief for or against the Eighteenth Amendment, this challenge knows not that the Constitution is both a federal and a national Constitution and knows not that the state “legislatures” never have and never can have aught to do with the national aspect of that Constitution. Based on this remarkable ignorance, this is the challenge, frankly stated in our own words:

“The state legislatures can make this Eighteenth Amendment. The state governments can do what they will, so long as they call their action a constitutional Amendment, with every reserved right and power of the citizens of America. But thirty-six state legislatures are necessary to make anything called a constitutional Amendment. And our challenge is that thirty-six legislatures have not made this particular Eighteenth Amendment. In any state, where the referendum exists, the citizens of that state [we note that even now the citizens of America are not mentioned] are part of the state legislature. In some of these referendum states, whose legislatures are included among your claimed thirty-six ratifiers for the Eighteenth Amendment, the whole of the state legislature has not yet ratified, because the citizens of the state, who are part of its legislature, have not yet acted. For this reason, that you ignore the rights of the citizens of some states, our challenge is that the Eighteenth Amendment has not been ratified by the legislative governments of thirty-six states.”