It is well for the average American of the present generation, at this point, to fix firmly in his mind that this legislative ratification of these federal Articles was the important exercise of an existing and recognized ability of state legislatures to make all constitutional articles of a federal nature, which never confer any government ability directly to interfere with human freedom. It is well for the same American also to fix firmly in his mind that it was the exercise of an ability to make constitutional articles entirely distinct from the other existing ability to make them, which had been exercised, in each nation, directly by the citizens themselves, in “conventions,” in the preceding year of 1776. In that year, there had been exercised the inherent and inalienable and always existing ability of citizens of a nation, assembled in conventions of deputies chosen for that express purpose, to make any kind of constitutional article, whether it confers federal or national power on government. In the years 1777 to 1781, there had been exercised the recognized and existing but limited ability of state legislatures to make federal articles, an ability clearly then known not to include the ability to confer upon government national power to interfere with individual freedom.
Living with those Americans through their great days, we have now reached the day in 1781 when they were all citizens of some nation but were not all citizens of the same nation. The great Republic, America, had not yet been born. The legal status of the American as an individual, and his relation to all governments was exactly the same as it had been since 1776. Each American was the citizen of some nation. His individual freedom could be directly interfered with only by some law of the legislature of that single nation under a valid grant, from him and his fellow citizens, of power to enact that law on that subject. Neither the legislature of any other nation in America, nor the legislatures of all other nations in America, nor the government of nations which those legislatures had created and endowed with federal powers, the Congress of the Federation, could singly or collectively issue a single command to him, interfering in any manner with his human freedom, or could give to any government or governments a power to issue such a command.
There were existing and recognized by all in America two distinct and different abilities—one limited and the other unlimited—to make constitutional articles. One was the limited ability of state legislatures. They could give federal power to a government, but they could not give any national power or power directly to interfere with human freedom. The other was the unlimited ability of the citizens of any nation. They could give any kind of power, federal or national, to their own government. Each ability, at a different time, had been evoked to exercise by a distinct proposal from the same Americans at Philadelphia, the Second Continental Congress, which had under its direction the conduct of the Revolutionary War.
Dormant for the time being, but existing over all other ability in America, was the supreme will of the collective people of America, who had not yet created their own great Republic or become its citizens or given to its government its enumerated powers to interfere with their individual freedom.
This was the legal status of the American, and his relation to all governments, and the relation of governments in America to one another, when the Treaty of Peace was concluded with England on September 3, 1783, and was later ratified by the Federal Congress on January 14, 1784.
CHAPTER III
AMERICANS FIND THE NEED OF A SINGLE NATION
Living over the great days of our forefathers, we now approach the greatest of all. It comes four years after the end of the Revolution. Not satisfied with a mere union of their states, the whole American people, in 1787, proposed to form the great nation of men, America. On June 21, 1788, it is created by them. On March 4, 1789, its only government, now also the government of the continued union of states, begins to function.
Between May 29, 1787, and March 4, 1789, the whole American people did their greatest work for individual liberty. That was their greatest day. Most Americans of this generation know nothing about that period. Still more is it to be regretted that our leaders in public life, even our most renowned lawyers, do not understand what was achieved therein for human freedom. It is of vital importance to the average American that he always know and understand and realize that achievement. That he do so, it is not in the slightest degree essential that he be learned in the law. It is only necessary that he know and understand a few simple facts. The experience of five years since 1917 teaches one lesson. It is that Americans, who have not the conviction that they are great constitutional thinkers, far more quickly than those who have that conviction, can grasp the full meaning of the greatest event in American history.
The reason is plain. Back in the ages, there was a time when scientific men “knew” that the earth was flat. Because they “knew” it, the rest of men assumed that it was so. And, because they “knew” it, it was most difficult to convince them that their “knowledge” was false “knowledge.”
In a similar way, our statesmen and constitutional thinkers came to the year 1917 with the “knowledge” that legislatures in America, if enough of them combined, had exactly the omnipotence over the individual freedom of the American which had been denied to the British Parliament by the early Americans. Naturally, it is difficult for them to understand that their “knowledge” is false “knowledge.” For us who have no false knowledge to overcome, it is comparatively simple to grasp what those other plain Americans of 1787 and 1788 meant to accomplish and did accomplish. Why should it not be simple for us? With those other plain Americans, we have just been through their strenuous years which immediately preceded their greatest days of 1787 and 1788. They were a simple people as are we average Americans of this generation. From living with them through those earlier days, we have come to know their dominant purpose. They sought to secure to themselves and to their posterity the greatest measure of protected enjoyment of human life, liberty and happiness against interference from outside America and against usurpation of power by any governments in America. Certainly, it ought not to be difficult for us to grasp accurately and quickly what they meant to do and what they did do in their last and greatest achievement in the quest of that protected enjoyment of human freedom. But, with all our happy predisposition accurately to understand the meaning of the facts in 1787 and 1788, that understanding cannot come until we know the facts themselves. Let us, therefore, live through those years with those other plain Americans of whom we are the posterity. Only then can we understand their legacy of secured liberty to us and keep it against usurpation by those who do not understand.