Citizen or subject?

by Francis X. Hennessy

Some of us are familiar with the book known as “The Comic Blackstone.” We have thought of it often as we read the briefs of those for validity of the new Amendment—the government constitution of government power to interfere with the individual freedom of American citizens. There is, however, a vital difference between the book and those briefs. The book was a conscious effort to be humorous. Unconscious humor has never failed to surpass conscious and intended humor.

We recall our search to know “when” and “how,” between 1907 and 1917, we became subjects. We remember the first glance at the briefs of 1920. We remember the tribute of one to the simple truth that “the people do not become a legislature.... As well confound the creator and the creature—the principal and the agent through which he acts.” We wonder why the author of this tribute did not challenge the monumental error of the concept that the Fifth Article (when it mentions the “conventions” of the American citizens, the greatest principal in America, and also mentions the state governments, each as the attorney in fact of another and distinct principal, the citizens of its own state) is a grant from the great principal to itself and these mentioned attorneys in fact of others. But we now know why the author of the tribute made no such challenge. He is Hughes, who rests his entire argument on the monumental error. We remember, as we glance at the briefs, that another one challenged the doctrine on which Sheppard proposed that the Eighteenth Amendment be sent to governments of state citizens, that such governments might interfere with the freedom of American citizens. We remember the Sheppard doctrine as the Calhoun heresy that the states, political entities, made the Constitution which we, the citizens of America, actually made in our “conventions.” We remember how refreshed we were to find, in our first glance at the briefs, this statement: “The Constitution is not a compact between states. It proceeds directly from the people. As was stated by Mr. Chief Justice Marshall in M’Culloch v. Maryland, 4 Wheat. 316, &c.” We remember our thought, when we had just come from those “conventions,” to find this statement in that brief. We remember how we anticipated this briefer telling the Court why the states or their governments, who could not make the First Article, were incompetent to make the only other supposed grant of power to interfere with our liberty, the Eighteenth Amendment. Now that we have finished with the briefs of 1920, we recognize how absurd was our expectation. The statement that the states, which are mere political entities, did not make the Constitution, the quotation from Marshall, supporting this truth and showing that the states did not make it because the states and their governments cannot make national Articles, are both from the brief of this same Hughes, the champion of his government clients and their claimed ability to make national Articles.

We find some considerable amusement in comparing the speech of Sheppard, proposer of the Eighteenth Amendment, and the brief of Hughes, champion of the Eighteenth Amendment. If government was to carry through a successful revolution against free men and acquire the omnipotence denied to the British Parliament, it would have been well for the proposers of the Revolution and the champions of it to have agreed at least upon one fact, whether the states, political entities, or the citizens of America, in their “conventions,” made the Constitution—which was to secure the American citizen against all usurpation of power by governments.

But, once we sense the certainty that this revolution of government against free citizens cannot be successful, once we realize the certain decision of the Supreme Court when the real challenge is made to the disguised revolution, we can forget the attempted tragedy of human liberty. Then we shall know that the entire story of the last five years is an inexhaustible mine of humor. And, among the briefs of those who championed this revolution of government against human being, we shall find no mean rival (in unconscious humor) to any other part of that story.

We recall, at our first introduction to all the briefs, the epitome of all the knowledge we had just brought from the early conventions: “There is only one great muniment of our liberty which can never be amended, revoked or withdrawn—the Declaration of Independence. In this regard, it ranks with the Magna Charta.” We recall how pleased we were to know that the Court must hear another champion of individual liberty, who also must have come from the “conventions” in which we had sat. We recall how, in his brief, this truthful tribute to the Statute of ’76 was immediately followed by the quotation from that Statute, which includes these words: “That to secure these Rights, [the Rights of men granted by their Creator] governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

In our eager anticipation to hear his argument and see his brief, how were we, fresh from the “conventions” in which sat some of the men who had written that Statute eleven years earlier, to know that the briefer understood their language to read as follows: “That to secure these rights of human beings, granted by their Creator, governments are instituted among men, deriving their just powers from the consent of the state governments. That whenever any Form of Government becomes destructive of these ends, it is the right of the state governments to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form as to the state governments shall seem most likely to effect the welfare of those who control the state governments.”

That this is the meaning of that Statute to this briefer, we may realize when we know that the tribute to the Statute and the quotation from the Statute are in the brief of Wheeler, counsel for the political organization which managed the new revolution of government against people and dictated the proposal that governments should constitute new government of men in America. Now we grasp why this briefer said that, in the fact that the Declaration of Independence could “never be amended, revoked or withdrawn,” the Statute of ’76 “ranks with the Magna Charta.” To this briefer, the Statute of ’76, like the Great Charter of old, is the ruler government dispensing privileges to its subjects, the people. That is why this briefer, with his Tory concept of the relation of government to human beings, does not know that the Statute of ’76 is the revocation of the principle on which Magna Charta rested, the doctrine that the government is the State and the people are its assets.

This briefer, like all his associates, does not know the great change which the American people made in the picture of American government. We are all familiar with the picture, “His Master’s Voice.” When those Americans were born, from whose “conventions” we have come, the listener in that picture was “the people” of the Preamble and the Tenth Amendment in our Constitution. The voice of the master was the voice of government. When those Americans died, they had changed the picture. The listener had become the governments in America, the voice of the master had become “the people” of America, its citizens. The new painting of the picture was on July 4, 1776. That the listener might never deface the truth of the new picture, the Constitution of 1787 was proposed at Philadelphia and later made by the master in the picture. The proposal of Wheeler and his associates and the action of governments on that proposal are the unlawful attempt to change the picture back to what it had been before the Statute of ’76.

If time permitted, our sense of humor would keep us long with the briefs of Wheeler and his associates. It was their thought that the doctrine of Christ could be made a better Christianity by a substitution of the prohibition of Mohammed for the temperance of Christ. This natural modesty on their part made certain that we would find, in the Wheeler brief, this tribute to the good intentions of the Americans of those early “conventions,” accompanied by an humble tribute to the much greater wisdom of the briefers. “The people, under this form of government may, of course, do unwise things. This is the alleged danger of a republican or democratic form of government. If the electorates are not intelligent, moral and patriotic, our government will fail. Our forefathers took that chance in choosing a form of government that was controlled entirely by the people. History proves that they builded more wisely than they knew. The people have kept step with advancing civilization under the same construction of our Constitution. This last advance in the prohibition of the beverage liquor traffic, which is one of the greatest evils that ever cursed humanity, is additional evidence of the wisdom of our forebears. It is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people.” The finest passage in the “Comic Blackstone” does not approach this in its excellence as unconscious humor.

Educated with “our forefathers” who “took that chance in choosing a form of government that was controlled entirely by the people,” we call the attention of Wheeler to one of his many mistakes by rewriting his next sentence, as he should have written it: “History proves that they builded more wisely than Wheeler or his associates knew or are able to understand.”