Citizen or subject?

by Francis X. Hennessy

But these are the governments which all lawyers of 1920 “knew” had been made the attorneys in fact for the citizens of America, possessors of the supreme will in America. These are the governments to which all advocates of the Eighteenth Amendment contend that the Americans, in the “conventions” with Henry, gave the entire omnipotence of the American people to be exercised by these governments, without any constitutional restraint.

The real fact is, although all lawyers of 1920 failed to know the fact, that these state governments were only named in the Fifth Article, because they already had an existing limited ability to make federal Articles, an ability not granted by the citizens of America but possessed by each of those governments as attorney in fact for the citizens of its own state. That it was an ability not granted by the citizens of America, must be apparent when we recall that it was exercised by those governments in 1781—seven years before there was such a thing as a citizen of America. That the lawyers of 1920 neither knew nor realized the importance of this fact, is apparent when we recall that every brief of those lawyers asserted that these governments get their ability to make Articles by a “grant” in the Fifth Article.

Our knowledge of the nature of every challenge to the new Amendment, and our knowledge that each challenge involved the assumption that the Fifth Article was a “grant” to these state governments, is a knowledge which is certain from our study of the conclusions of the Supreme Court which negatived each challenge.

The certainty is emphasized by our memory of the reply of Rice in that Supreme Court, when, without one dissent from the challengers, he stated his and their conviction that the “conventions” of 1788—the challengers all forgetting that those “conventions” named themselves in the Fifth Article—provided no CONSTITUTIONAL mode of procedure in which their own exclusive power could be again exercised to make Articles like the First Article and the Eighteenth Amendment.

Let us again emphasize our certainty by a few moments with the briefs of the challengers.

Root was their leader. A distinguished public leader and considered by many to be the leader of the American Bar, there was special reason why he should have known the ability of government to make national Articles in a Constitution, only when men are “subjects,” and the inability of governments to make such Articles, when men are “citizens.”

If his brief, or the brief of any challenger, had urged this real and invincible challenge, we would have found the mention of that challenge in the decision and it would not have been a refutation of that challenge. That we may confirm our knowledge that the brief of Root, like the brief of every challenger, did not make this challenge, the challenge that the Fifth Article is no “grant” but a mention of two existing abilities and a mode of CONSTITUTIONAL procedure for the respective exercise of each, let us read the brief’s own statements of the three challenges it does make. “The plaintiff contends that this attempted amendment to the Constitution of the United States is invalid (1) because it constitutes mere legislation, and is, therefore, not authorized by Article V of the Constitution, (2) because it impairs the reserved police or governmental powers of the several States and their right to local self-government, and (3) because it has not been ratified by three fourths of the several States since it has not been submitted to the electorate of the States in which the initiative, or the referendum, or both, prevail (assignment of errors Nos. 1-5). These questions are discussed in points II, III, and IV, respectively. In point I the prior amendments to the Constitution are considered with reference to these contentions, and in point V the justiciability of the contentions is maintained.”

Its first challenge is itself the admission that all CONSTITUTIONAL ability to change our Constitution is ability “granted” in the Fifth Article. Moreover, it is the flat denial of any CONSTITUTIONAL mode of procedure in which the citizens of America, by a “Yes” from three fourths of their assembled “conventions,” can enact the legislation which is Section One of the supposed Eighteenth Amendment.

Its second challenge is wholly on behalf of the political entities, which are the states. It not only makes no claim for the rights of American citizens, but it denies any CONSTITUTIONAL ability in the American citizens to interfere, by changing the American Constitution, with what the American citizens reserved to each state and its citizens.

The third challenge again fails to assert any claim on behalf of the rights of the American citizens. It is the challenge negatived by the third conclusion of the Supreme Court. It is the challenge that the citizens of the State, in some of the states, are part of the state legislature.