Citizen or subject?

by Francis X. Hennessy

Our forefathers knew that, wherever men are citizens, neither state governments nor any governments are “the people” or can surrender rights of “the people” or can constitute new governments of “the people” interfering with their individual freedom and, therefore, when those “conventions” of old did choose and establish a form of government “that was controlled entirely by the people,” they were not stupid enough to think that the American government would be that kind of a government if it could be controlled entirely by legislatures, which never are the people. It is rather ridiculous to find Hughes, associate champion of Wheeler for the new Amendment, contending that the people never are the legislature, while Wheeler contends that a government is controlled entirely by the people when it is controlled entirely by legislatures. But, it is to be expected, when men work in association on a common unsound basis, that one champion should frequently contradict another as to fact, and that even the same champion should often contradict himself as to fact.

And so we find the Wheeler brief stating that the new Amendment, made entirely by governments without any authority from the people about whom he prates, “is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people”; and we turn over the pages of the brief and we find the remarkable proposition that these state legislatures, when making the Eighteenth Amendment, were not legislating, but were “a body of representatives sitting in a conventional capacity.” Of course, we now learn, by this latter statement, that the greatest piece of “constructive legislation” the world ever knew was not legislation at all. But we also learn a more important thing. It would have been of great advantage to the British Parliament in 1765, if it had only known the Wheeler concept of our American security for human freedom. Think how remarkable it would have been to have passed a Stamp Act which would have been universally respected and obeyed by the American people of that time! All the British Parliament should have done was to announce: “This is not passed by us as a legislature. In issuing this command to the American people, we are a ‘body of representatives sitting in a conventional capacity.’” Having exactly the same attitude mentally as Lord North in 1775, this Wheeler would have been a better Minister for the English King. He would have been able to keep for him the American “subjects” of the British Legislature.

“Article V itself shows that the representative or convention idea was in the minds of the framers of the Constitution. If the legislatures of two thirds of the states should apply to Congress, then Congress would be obliged to call a convention for proposing Amendments to the Constitution. Then, also, when it came to the matter of ratification, this question could be considered by conventions in the various states. A review of the proceedings of the constitutional convention, as well as a study of the political and governmental bodies at the time at which the provision providing for amending the federal Constitution was adopted, revealed the fact that these men thought in terms of conventions ... and that the clear intent of the framers was to ratify proposed amendments by bodies sitting in the capacity of conventions. The Court will not find any able exponent of the theories of government of that time, however, who even asserted that the people could be considered as a portion of the legislature. This can be shown most clearly by an examination of the proceedings of the constitutional convention, as reported by Mr. Madison and particularly by examining the various proposals advanced in that convention for the ratification of the Constitution.”

We recognize immediately, in this extract from the briefs of 1920, our own exact knowledge brought from those “conventions.” And, when this briefer challenges the existence of the Eighteenth Amendment on the ground that the people who made it showed “in Article V itself” that “the convention idea was in the minds of the framers” and “when it came to the matter of ratification,” a “Yes” or “No” was to be considered by “conventions” in the various states, we are amazed to find no upholder of the Eighteenth Amendment replying to this attack upon its validity. The challenge to validity again and again touches on the monumental error of the Tory concept behind all claim to validity. The challenge puts its finger at once upon the absurd assumption, on which the Eighteenth Amendment wholly depends for existence, the assumption that the Americans we have just left ever considered the “people” as the “legislature” or the “legislature” as the “people.” The challenge emphasizes the fact we all know, that the “conventions” knew that “conventions” were the “people” and that “legislatures” never were the “people.” But we are mistaken in believing that this clear challenge was not met by some “constitutional thinker” in his effort to uphold the new supposed NATIONAL Article, made by the governments or “legislatures” which the old “conventions” so well knew were not the “people.” In the brief of one champion of the new NATIONAL Article, we find this clear reply to the challenge. And we notice how the reply is not mere assertion. No one can deny the tremendous “support,” in history and in decision and in the Fifth Article itself, for the full reply that the Fifth Article states definitely that “the only agency which is authorized to ratify the Amendment is the state legislatures!”

We have only one comment to make on the challenge itself and the destructive reply to it, that the state legislatures are the “only agent” authorized by the Fifth Article to amend our NATIONAL Constitution. It is an interesting comment. Both the challenge and the reply are from the brief of Wheeler, counsel for the political organization which directed that governments make this new national government of men.

This Wheeler believes that the Statute of ’76 is “one great muniment of our liberty which can never be amended, revoked or withdrawn.” He says so in his brief. He also maintains that his state governments, not one of their members elected by us as citizens of America, have omnipotent power over our every liberty, except that they cannot change the number of senators from each State. At one point in his brief he “proves” overwhelmingly that the citizens of America universally demanded his new Article, the Eighteenth Amendment. His proof is—and we cannot deny the fact which he asserts as proof—that, in the year 1918, when Americans were in the Argonne Forest in France, four thousand seven hundred and forty-two Tories in forty-five state legislatures said “Yes” to this new command to the one hundred million American citizens on a subject not among the matters enumerated in our First Article. That his “proof” might be perfect (for the claim that the making of the command was demanded by the citizens of America) he fails to mention the fact that not one of those four thousand odd Americans, who were not the Americans in the Argonne or in our training camps preparing to fight for human liberty, was elected for any purpose by the citizens of America.

Reflecting upon this briefer’s admiration for the Statute of ’76 and upon his knowledge that the “legislatures” never are the people, while the “conventions” of the Fifth Article are the “people,” we wonder if he ever read a certain statement of the early American who wrote the Statute of ’76. It is a statement from Thomas Jefferson quoted by Madison, author of the Fifth Article, when he was urging the American people or “conventions” to make that Fifth Article. Jefferson was talking about a constitution, in which “all the powers of government ... result to the legislative body,” as they result (under the modern assumption as to what the Fifth Article says) to the state governments, the new omnipotent legislature of the American people. This is what Jefferson had to say, what Madison approved: “The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.... As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for.” (Fed. No. 48.)

It is clearly the view of Wheeler and all his associates that the early Americans did fight their Revolution so that we might have, in these modern days, an elective despotism of four thousand seven hundred and forty-two despots. That form of government is probably relieved from the odium of the Madison and Jefferson attack, by the “alleviation” that we ourselves, the citizens of America, those to be governed by this “elective despotism,” do not elect or choose even one of the despots!

We cannot linger longer with these amazing briefs of the champions of the Eighteenth Amendment. From the viewpoint of unconscious humor, we have become rather enamored of the Wheeler idea that “state governments” and “the people of America” expressed the same thought to the latter when they made the Fifth Article. Since we read Wheeler’s brief, we have been trying the same method with some famous statements of great Americans. For example, we have this new excerpt from Washington’s famous Farewell Address: “The basis of our political system is the right of the ‘state governments’ to make or alter the people’s Constitution of government. And the Constitution which at any time exists, till changed by an explicit and authentic act of ‘the legislatures of three fourths of the states’”—(Washington said ‘the whole people’)—“is sacredly obligatory upon all.”

And we like particularly the improved Wheeler concept of the rather crude Gettysburg speech of Lincoln. In its new form, altered by the Wheeler idea, it is wonderful to hear the appeal of Lincoln that we, who were not among the dead at Gettysburg, should play our part “that government of the people, by the state governments, and for those who control the state governments, shall not perish from the earth.”