Citizen or subject?

by Francis X. Hennessy

But we find the brief of Hughes, like the briefs of his associates, actually challenging any right of review by the Supreme Court, when the attorneys in fact for the states and state citizens, although the states have nothing whatever to do with that part of the dual Constitution which relates to the nation of men, actually attempt to change the quantum of power (to interfere with their own individual freedom) granted by the nation of men to their only government. His challenge even goes to the extreme of boldly asserting that the “propriety and advisability of amendments,” even though they infringe upon the individual freedom of the members of the nation of men, must be finally determined by the governments of state citizens, which have nothing to do with the nation of men which is America. His challenge is that the Supreme Court is powerless to protect the liberty of the American citizens if thirty-six governments of state citizens decide to interfere with that liberty in matters not enumerated in the First Article.

The challenge is exactly the challenge of Lord North to the Americans in 1775. It is exactly the challenge which the British Parliament would make, if we were still its “subjects.” As basic American law, it is sheer nonsense.

When we remember the doctrine of this briefer, that there is a limit to the right of our supreme legislature to prohibit what a candidate for Senator may do, and compare it with this new Tory concept that three fourths of the inferior state governments can validly interfere with every personal liberty of ourselves, we have one or two questions to ask the briefer. Is it his thought that the supposed citizens of America made their Constitution with the sole intent that the personal rights of candidates for Senators should be secure and that the number of Senators from each state should remain the same? Is it his thought that the American citizens, from whose “conventions” we have just come, having settled these amazingly important things about Senators, then voluntarily granted omnipotence over every individual freedom in America to a fractional part of the inferior state governments, twenty-four of whom he represented in the litigation of 1920? Is it his thought that the whole American people have two governments, one the government of enumerated powers constituted in the First Article and the other the government of unlimited power constituted in the Fifth Article? Is it his thought that his inferior state governments, although all members of all the state governments collectively could not enact a statute interfering in the slightest degree with the American citizen, can issue any command whatever to the American citizen, and that the citizens of America must obey that command so long as the state governments call it an Amendment of the American Constitution?

It is our own certain knowledge that, when governments issue any command to the citizens of America and the command interferes with individual freedom, the maker of the command must show the grant of power to make that particular command. It is the Alpha and Omega of American law that no government has any just power to make any command to the citizens of America, except in a matter on which those citizens themselves have given that government the power to make that particular command. It is in the primer of American constitutional law, that there is no government of the citizens of America, except the government at Washington, and that it has no power to command the American citizen, interfering with his individual freedom, except in the matters named in the First Article. It is admitted by all, even by the writer of that brief and his colleagues, that the power to make the command which is the First Section of the Eighteenth Amendment, is not enumerated in that First Article. When, therefore, this counsel for twenty-four of the governments which made that command tells us that, after his client governments (at the suggestion of our government which could not make the command) have passed upon the propriety and advisability of the command, we cannot have the Supreme Court even consider the ability of his client governments to make the command, our indignation is mingled with our mirth.

Our indignation need not be explained. Our mirth comes when we think of our needless fear that something might have happened between 1907 and 1917 by which we became “subjects” instead of the citizens we had been. Throughout our education we have always known that, if the Eighteenth Amendment (a NATIONAL article made entirely by GOVERNMENTS) is in the Constitution, we are “subjects.” We have known that no legislative governments, before 1787 and after 1776, could have made this general command to the citizens of America, because, during those eleven years, there was no citizen of America and there were no governments in the world who could make any general command to the American people, interfering with their individual freedom on any subject. We have known, with certainty, that, if the Americans in the “conventions” (where we have sat) knew what they were doing and the Supreme Court, for a century, has known what they did, there were no governments in the world, up to the year 1907, who could make that command to the American citizens. We have gone everywhere to find what happened, between 1907 and 1917, to change the American citizens into “subjects” of the governments for whom this counsel appears. Now, after the fruitless search elsewhere, we are reading his brief to find out what did happen between 1907 and 1917. His plain answer, as we have already sensed, is—“NOTHING.”

Our mirth entirely dispels our indignation, when we sense his full concept of the nature of that absurd Fifth Article “grant” to his government clients. That we may not mistake his concept, the most Tory concept ever stated as law in America since 1776, he explains it again and again in his briefs. It is his concept that the absurd supposed “grant” gives to his client governments, not one member of which is ever elected by the citizens of America, unlimited and constitutionally unrestrained power to interfere with the individual freedom of the American citizen on every matter or, as the Declaration of ’76 put it, in its complaint against the English King and his legislature, to legislate for us on all matters whatsoever.

And our mirth is not lessened when we read, in this brief, John Marshall’s full statement of the making of the Constitution (with the Fifth Article in it) and John Marshall’s clear decision that it was all made by the citizens of America, the “conventions” of the Seventh and the Fifth Articles.

No statement of facts could ever be written, which more absolutely destroys the concept that the state governments have the omnipotence denied to the English Parliament, than the quotation from John Marshall which we read in this brief to support that concept.

Throughout the quotation, with which we are all very familiar, Marshall points out that there is a vital distinction, amazingly important to individual freedom, between the ability of the “conventions” (named by exactly the same name in the Fifth as well as the Seventh Article) and the limited ability of the same “legislatures” for which this counsel appeared in 1920. In the quotation Marshall points out that, when the American citizens are to make a NATIONAL Article, like the First Article and the Eighteenth Amendment, there is but one way in which they can make it “safely, EFFECTIVELY and wisely,” “by assembling in convention.” That all of us, including that counsel of 1920, may not find any excuse for an assumption that state governments can ever make Articles of that kind, Marshall dwells at length upon the inability of state governments or any governments to make them or any Article like them. He tells us that, when the American people make Articles of that kind, in the only way in which they can ever EFFECTIVELY make Articles of that kind, by assembling in “conventions,” “they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves or become the measures of the state governments.” “From these conventions the Constitution derives its whole authority.” “It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation and bound the state sovereignties.”

Up to the last short sentence we have just quoted from the decision so familiar to us, Hughes quotes at length and without omission. Hughes is in Court for those “state legislatures” and state sovereignties, which Marshall’s decision finds to be legislatures and sovereignties wholly inferior in ability to the “conventions” of the American people, named in the Fifth and Seventh Articles by exactly the same name—“conventions.” How does the great lawyer of 1920 find, in this Marshall decision, support for the unique idea that these state, governments are omnipotent over every right of the American citizens who sit in those “conventions”? His remarkable claim is that the state governments he represents have omnipotent ability to command or interfere with anything in America, except one thing. It is his claim that these governments have omnipotent ability to interfere with the citizens of America, with the Constitution of America, with the government of America, with anything in America, except that they cannot interfere with that one thing for which the Revolution was fought, the Statute of ’76 enacted and the Constitution established. In the view of Hughes, that one thing apparently is the right of every state to have the same number of Senators. Our indignation is entirely dispelled when we realize that he sincerely believes this nonsense. Our mirth is merely increased when we find him quoting, at some length, this decision of Marshall, evidently under the impression that the decision supports the nonsense.