Citizen or subject?

by Francis X. Hennessy

If we want further confirmation of our knowledge that this brief does not make the real challenge, namely, that the Fifth Article is no grant to the supposed grantors and the state governments, we find it in the fact that the brief itself refers over fifty times to the Fifth Article as a “grant” of limited ability to make Articles.

If we need further confirmation, we find it in this fact. After the Supreme Court had negatived every proposition in that brief, its writers made application for a reargument. The application was based on one ground as far as concerned the validity of the Amendment. That one ground was that the Court had written no opinion. From this one fact, the claim was made that the Court could not have considered the potency of the three challenges which had been urged in the brief. Educated with the earlier Americans, we believe that each of these three challenges, in its very statement, shows why it is unsound, and that no opinion was needed to explain its refutation. But the nature of the application shows the continued concept of the Fifth Article as a “grant.”

If we look at the other briefs against validity, we will find all arguments based on the same monumental error that the Fifth Article is a “grant” and that the state legislatures are therein named the attorneys for the citizens of America, although the latter, as citizens of America, never elect a single member in those legislatures and the Tenth Amendment expressly declares that the Constitution gives no power of any kind to the states or their legislatures. On the impossible hypothesis of this monumental error are budded the most extraordinary arguments.

In more than one brief, it is urged that, in the Fifth Article, the whole people of America made a certain number of state legislatures their own attorneys in fact to amend the American Constitution. But, urges the brief, the American people have no power to change the state constitutions, and “therefore, the grantees,” the state legislatures, “cannot exceed the powers of their principal, the people of the United States.” And, the brief goes on, as the people of America cannot change a state constitution, neither can the attorneys in fact of that whole American people, the state legislatures, change it. The ability of the people or citizens of America and of “their” attorneys in fact, the state legislatures, is only competent to change the Constitution of the citizens of America. But this Eighteenth Amendment changes the Constitution of each state. Ergo, that change is clearly beyond the power of the citizens of America and “their” attorneys in fact, the state legislatures!

It will serve no useful purpose for us to dwell further upon the briefs against validity. They all show the universal conviction that the Fifth Article is a “grant” and makes the state legislatures attorneys in fact for ourselves, the citizens of America, who elect not a single member in the state legislatures. Naturally, as this fundamental error is the invincible conviction of all counsel against validity before any brief is written, none of those briefs mentions such simple facts as the fact decided by the Supreme Court in Barron v. City of Baltimore, 7 Pet. 243. That decision, by John Marshall, decisively settled the legal fact that the Fifth Article grants no power to the state legislatures to make the Eighteenth Amendment. And, as it also decisively settled that the Fifth Article does not give the state legislatures any power whatever, it destroys the absurd concept that the Fifth Article makes the state legislatures attorneys in fact for those who made the Fifth Article, the citizens of America, the “conventions” of the Fifth Article and the Seventh Article. But lawyers, who start to write briefs with the certain (although false) “knowledge” that the Fifth Article does make the state legislatures attorneys in fact for the citizens of America, neither know the meaning of that decision nor state the decision and its meaning and its effect upon the Eighteenth Amendment in the briefs which they write. The decision is very clear. We have met it earlier in our education herein. It will bear repetition right now, when we find fifty-seven lawyers all “knowing” that the Fifth Article (despite the declaration of the Tenth Amendment) does give power to the state governments and, by giving it, makes these governments attorneys in fact for the citizens of America.

Barron claimed that a state statute was void because it came in conflict with the restriction imposed by the Article which is the Fifth Amendment to the American Constitution. If the restriction applied to the state legislatures and their powers, the statute was clearly void. Therefore, as Marshall pointed out, the Court had but one question to solve, whether the American Constitution (in which is the Fifth Article) granted any power to the state governments. If it did, then general restrictions in that Constitution, as they clearly applied to all powers granted in that Constitution, applied to the state governments. On the contrary, if the Constitution granted no power to the state governments, general restrictions in the Constitution would not apply to the state governments. For which reason, the decision of the case itself was to depend on one thing alone, whether there was any power granted in the entire Constitution to the state governments. If there was not, the decision would be against Barron.

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

It would have been impossible for Marshall to have stated more plainly that the “instrument,” the Constitution (which contains the Fifth Article), grants no powers whatever to the state governments. On that fact, the fact being the simple answer to the question “of great importance but not of much difficulty,” Marshall decided that the general restrictions (applying only to powers granted in the Constitution) did not apply at all to the state governments, to whom the Constitution granted no power whatever.

And so we Americans, trying to find the “when” and “how” (between, 1907 and 1917) we became subjects, cannot find the supposed answer anywhere in the briefs against validity. All that we do find of interest to us, in those briefs, is that the briefers, either with or without knowledge of the fact, are meeting a claim that there never was an American citizen and that the American people became “subjects” when they made the Fifth Article on June 21st, 1788.

By reason of our education in the making of the Fifth Article, we know the answer to the absurd claim. The answer is one that cannot be denied unless there are facts which we have not learned in our education. Therefore, we go quickly to the briefs of those who make the claim, those who upheld the existence of the Eighteenth Amendment, to ascertain what are the new facts on which they base their claim that there never was an American citizen and that the Fifth Article made the American people “subjects.”