Citizen or subject?

by Francis X. Hennessy

The experience of ages has taught that human liberty, even in a republic, is never secure unless the citizens of the republic themselves understand the basic security which protects that liberty. The writer of this book wishes to keep his own individual liberties secure against usurpation by any government in America. He wishes to keep his status, as such citizen, to all governments in America—the status established by the citizens of America through whose experience we have been educated. He knows that such status must end forever unless American citizens generally have the same earnest wish and, of their own knowledge, know how the Constitution secures that status and their individual liberty.

Shortly after the American people had chosen to be a nation with one government of enumerated powers, there came to that then land of individual liberty an Irish exile. Quickly he assumed his place with the great lawyers of America. And in the year 1824 he made clear that he would have been able to teach our new citizens and our public leaders how the one American people “did at last secure a government” which that one American people “could control despite” the state legislatures. In the argument before the Supreme Court in the famous case of Gibbons v. Ogden (9 Wheat. 1, at p. 87), where his opponent was Webster, this is how Emmett stated a fact then known and “felt and acknowledged by all”:

“The Constitution gives nothing to the states or to the people. Their rights existed before it was formed.... The Constitution gives only to the general government, and, so far as it operates on the state or popular rights, it takes away a portion, which it gives to the general government.... But the states or the people must not be thereby excluded from exercise of any part of the sovereign or popular rights held by them before the adoption of the Constitution except where that instrument has given it exclusively to the general government.” The italics are those of Emmett.

What does this clear statement of fact (known by Emmett and his generation to be the exact statement of the Tenth Amendment) make out of every argument, whether for or against the Eighteenth Amendment, based on the assumption that the Fifth Article does give something to the states and their governments? Can any American citizen doubt that it makes clear that to describe such arguments by any other word save “nonsense” is to lend them a dignity which they do not possess?

Without a single exception, every argument during the last five years, whether for or against the Eighteenth Amendment, has deserved the criticism of the Supreme Court for the fact that such argument neither knew nor considered the meaning of the Tenth Amendment.

It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The argument of counsel ignores the principal factor in this Article, to wit, “the people.” Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted. The Preamble of the Constitution declares who framed it,—“We the people of the United States,” not the people of one state, but the people of all the states; and Article X reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, [the power of each state for that state to its own people or citizens] and all powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States [the one people or citizens of America, that one American people which Marshall so accurately knew]. The people who adopted the Constitution, knew that in the nature of things they could not forsee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an Amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. (Supreme Court, Kansas v. Colorado, 1907, 206 U. S. 46 at p. 90.)

Why has every argument, for or against the new Amendment, ignored the simple and impressive fact that the one word “conventions” was written into the Fifth Article and the Seventh Article by the delegates at Philadelphia, very shortly after they had reasoned out and reached their famous legal decision as to the difference between the ability of “conventions” and the ability of “state legislatures,” also named in the Fifth Article? Why completely ignore the decisive effect of this fact when considered with the fact, that Philadelphia mentioned “conventions” in both Articles and only in the Fifth mentioned “state legislatures”? If we put ourselves exactly in the position of Philadelphia when it was doing this, we see at once why state “legislatures” are pointedly absent from the Seventh Article. Philadelphia knew the nature of the First Article, that it constituted government ability to interfere with individual freedom. Philadelphia knew that neither “state legislatures” nor any combination of governments can make an Article of that kind in any land where men are “citizens” and not “subjects.” That is why “legislatures” are not mentioned in the Seventh Article. But Philadelphia did not know the nature of any Article which might be proposed at any particular time in the future by the body which was to perform the duty of proposing, the duty which Philadelphia was then performing. And Philadelphia knew that any future proposed Article might be of the kind which state legislatures could make. It was the conviction of Hamilton that all future proposed Articles would be of the kind that “legislatures” could make because they would be of the kind that did not relate to “the mass of powers” to interfere with individual liberty. That is why Philadelphia, almost immediately after it had omitted any mention of “legislatures” in the Seventh Article, did mention “legislatures” in the Fifth Article, which related to the making of future Articles whose nature Philadelphia could not possibly know.

Let us not forget what Madison told us about the Seventh Article: “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution.” (Fed. 43.) This is his statement that the Article itself tells us that “the express authority of the people” will make the Articles proposed from Philadelphia. How does the Article speak for itself and tell us that? By its one word “conventions.” Could Madison tell us more plainly that the word “conventions,” which he and his associates wrote into the Seventh and which he wrote into the Fifth Article, means “the express authority of the people”?

Can any supporter of the Eighteenth Amendment find any statement from Madison in which he tells us his word “legislatures” means what he has just told us his word “conventions” means? And, when “conventions” meant the “express authority of the people” before the Fifth or Seventh Articles were written, how could the mention of “conventions” in the Fifth imply a grant from the “conventions” to the “conventions”?

Why not admit the simple truth overlooked for the past five years? The respective mentions of “Congress,” of “conventions” and of state “legislatures” in the Fifth Article speak plainly of each body respectively doing something which it could do if there were no Fifth Article.