Citizen or subject?

by Francis X. Hennessy

In every argument against the Eighteenth Amendment, possible changes in the Constitution (which is both federal and national) have been divided into two classes, but not into the federal class and the national class. It has been invariably contended that the first class include those which can be made under the imaginary “grant” of power in the Fifth Article and in the mode of procedure therein prescribed. On the other hand, it has been invariably contended that the other class includes those which cannot be made under that imaginary “grant” or in any CONSTITUTIONAL procedure because they take away from the citizens of a state their right to govern themselves.

All arguments alike, whether for or against the Eighteenth Amendment, have wholly ignored the fact that the citizens of America, for the protection of the individual liberty of the one American people, IN THAT CHARACTER, established the Constitution and made it the supreme law over the citizens of the respective states and the states themselves and the state governments and the league of the states, which the citizens of America continued as subordinate to their nation of men.

For this reason probably, no argument, on either side, has ever recognized the identity of the “conventions” of the Seventh Article with the “conventions” of the Fifth Article. For this reason probably, no argument has ever recognized the identity of both “conventions” with the most important factor and reservee in the Tenth Amendment, “the people” of America, as distinguished from the lesser reservees, the peoples or citizens of each state, “the states respectively.”

It is this very failure to recognize this identity which has forced the opponents of the new Amendment into the “nonsense” of assuming and asserting, with their adversaries, that the Fifth Article is a “grant” to the “conventions” and the state “legislatures.” If there had not been this failure, everyone would have recognized that the “conventions,” which made the Constitution, neither could nor did “grant” to themselves, the “conventions” named in the Fifth Article, any or all of the very power which they were then exercising. The “nonsense” of the concept of such a “grant” is patent once there is recognized the identity between the “conventions” with the most important reservee of the Tenth Amendment, the one American people of Marshall.

We all know that, for five years, that identity has never been known or mentioned. The failure to know or to mention it has been emphasized by the occasional references to “conventions” which have been made. In one or two arguments, there has been passing attempt to support the “nonsense,” that the Fifth Article is a “grant,” but a “grant” limited in extent, by a suggestion that the Eighteenth Amendment could be “grafted” on the Constitution entirely outside of any mode of procedure mentioned in the Constitution. The suggestion has been that it could be “grafted” on the Constitution by “conventions” of the citizens of each state, provided that the citizens of every state gave their consent. In these suggestions, we ourselves, the citizens of America, the whole American people of Marshall, have figured not at all.

We, who are the citizens of America, must now realize the vital importance to our personal liberty of our own knowledge that we are citizens of America as well as citizens of some particular state. Wilson pointed out to the Americans in the Pennsylvania convention the dual capacity of the American, if the new Constitution were adopted. We remember his statement that “it was necessary to observe the two-fold relation in which the people would stand—first as citizens of the general government and, secondly, as citizens of their particular state. The general government was meant for them in the first capacity; the state governments in the second. Both governments were derived from the people; both meant for the people; both therefore ought to be regulated on the same principles.” And we remember the one most important American principle, that every government in America must get, directly from its own citizens, every power to interfere with their individual freedom.

We cannot help contrasting the accurate statement of Wilson, “in this Constitution the citizens of America appear dispensing a portion of their power,” with what must be the modern statement, if the Eighteenth Amendment is in the Constitution, namely, “in this Constitution the state governments appear dispensing to themselves and to the national government another portion of the power of the citizens of America.”

And, if that modern statement is “nonsense,” what else but “nonsense” are the arguments which rely upon its truth or which do not point out its absurdity?

What action of our public leaders, even in this year 1923, does not disclose that they still have the Tory concept that states and their governments, both of which are political entities, can exercise or grant power which the Tenth Amendment expressly declares that the American citizens reserved exclusively to themselves, and which the Supreme Court, even as late as 1907, clearly held “could be exercised only by them or upon further grant from them?” No discerning American has failed to note that the Senate still clings to the delusion of 1917, that states and their citizens and their governments have anything whatever to do with the national part of the Constitution of the citizens of America. In the newspapers, on January 30, 1923, under the heading, “Favor New Defense for Constitution,” appeared a dispatch from Washington. It told how the senators on the Judiciary Sub-Committee had agreed to report favorably a proposal again to amend the Constitution by changing the language of the Fifth Article. And the main element of the proposed change is to provide that any state may require that ratification by its legislature be subject to confirmation by popular vote of the citizens of that state.

The citizens of each state make their own Constitution. In it, they give to their own government what ability they please to interfere with their own individual freedom. What have the citizens of any State, what have the citizens of every state, in their capacity as state citizens, to do with grants of power to the American government to interfere with the individual liberty of the American citizens? Have not the American citizens, in every state, protection against grants of such power to the one government of the American people except by the citizens of America themselves, in that character? Is there anything in the Fifth Article, as it was written by Madison and made by the one American people, which permits any state governments—which have no power even over their own respective citizens except by grant from them—to exercise or create new government power to interfere with the liberty of the citizens of the distinct and supreme nation, America?