Citizen or subject?

by Francis X. Hennessy

But, we wonder why, at the particular point which we have reached in the Hughes quotation from Marshall, the former puts “stars” instead of the next paragraph in the Marshall decision? Certainly, when the great lawyer of 1920 has such faith in the omnipotence of his government clients over us their “subjects,” it cannot be that there is anything in the missing Marshall paragraph to disturb that faith! Yet, as we read the missing paragraph, with which we are quite familiar, doubt assails us. Is the great lawyer of 1920 sincere or does he know that the position of his clients in relation to the Eighteenth Amendment is nonsense?

What is the missing Marshall paragraph with which we are so familiar? Lo and behold! it is our constant companion throughout our education in the days of the early Americans. It is the paragraph in which the Supreme Court, by Marshall, points out why the Philadelphia Convention of 1787 found themselves compelled to send their First Article, with its grant of national power like the grant in the Eighteenth Amendment, to the “conventions,” named in the Seventh and the Fifth Articles, because the state governments, the clients of Hughes, were known and recognized by everybody to be without ability to make national Articles. In other words, it is the paragraph in which Marshall announces what we have learned so clearly ourselves, that “to the formation of a league, such as was the Confederation [to the making of federal Articles] 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 powers and acting directly on the people, the necessity of referring it to the people [the conventions of the Fifth and the Seventh Articles] and of deriving its powers directly from them was felt and acknowledged by all.”

We know this paragraph of Marshall’s, omitted from the Hughes brief, to be the epitome of everything that we have heard in the “conventions” which made the Fifth Article. We remember that even Henry, from the very fact that the “conventions” of the American citizens were assembled, knew that the then proposed Articles did grant power to interfere with human freedom. And we remember (because he knew the inability of state governments ever to make such grants) that, on the fact that “conventions” were assembled, he based his charge that the proposed Articles were NATIONAL and not federal. We remember that the Tenth Amendment declares that the entire Constitution, including the Fifth Article, gave no power of any kind to those state governments. And so we know, what Henry knew, that the state governments did not have, and that the Fifth Article did not give them, any ability to make NATIONAL Articles, like the First Article and the Eighteenth Amendment.

For which reason, we cannot (looking at the matter purely from the standpoint of lawyer’s attitude to his government clients) blame Hughes for putting the stars in his quotation from Marshall.

Eager to remain free citizens, eager to have all governments recognize that we are not “subjects,” we ourselves commend, to the writer of that brief and to all who uphold the Eighteenth Amendment, the entire decision of Marshall in M’Culloch v. Maryland. For instance, we commend this clear statement of basic American law:

If any one proposition could command the universal assent of mankind [except those for the validity of the Eighteenth Amendment], we might expect it would be this:—That the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts.

Among other things, this statement, itself but a repetition of everything that we have learned by our experience with early Americans, emphasizes the important fact that the nation, which is ourselves, has but one government, the government “limited in its power.” Which fact clearly demonstrates that the state governments, not being that one government of “limited powers,” are not the attorneys in fact for the citizens of America, in any matter whatsoever, and cannot command us, as they attempt to do in the First Section, or grant power to command us, as they attempt to do in the Second Section of the Eighteenth Amendment.

Again this same decision of Marshall holds clearly: “In America, the powers of sovereignty are divided between the governments of the Union and those of the State.” The claimed ability of the Hughes government clients, their claimed ability to make the NATIONAL new Article in our Constitution, rests entirely upon the absurd doctrine that, above the two sovereignties which Marshall names, there is an omnipotent legislative sovereignty, without any constitutional restraint, the sovereignty of three fourths of the very state governments which Marshall mentions.

In the same M’Culloch v. Maryland, Marshall pays a tribute to an accurate knowledge, which we have acquired in our education with the early Americans. It is the knowledge that everything in the Constitution denies any ability in even all the states as such, or in all the state governments, each of which is never anything but a government of the citizens of one state and their attorney in fact as state citizens, to alter in any way the NATIONAL part of our Constitution (which Constitution is both national and federal) because the NATIONAL part relates to direct interference with the individual freedom of the American citizens. This is his tribute to the truth of the knowledge which we have acquired. He says that there is “a principle which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rending it into shreds. This great principle is, that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective states and cannot be controlled by them.”

And so we average Americans find naught but encouragement in the brief of Hughes. From its quotations, from its every statement, we learn that we have known all the facts, before we read it, and that we are free citizens and not “subjects.” In that brief of the champion of champions of the governments that “made” the new NATIONAL Article, we learn that there are no new facts on which to base the claim that we, the whole people of America, have another government besides the government of enumerated powers, the claim that we are “subjects” and that our new omnipotent Parliament wears the aspect of thirty-six inferior governments, each elected by the citizens of a nation which is not America.