Citizen or subject?

by Francis X. Hennessy

Why persistently and insistently ignore the basic American legal principle that every state government must get its own power over its own citizens from them and that the only government of the American citizens must get its every national (as distinguished from federal) power directly from the citizens of America, assembled in the “conventions” named in the Fifth Article?

Is there any doubt that Madison, who wrote the Fifth Article, knew whom its word “conventions” described? When he asked the one American people to make the entire Constitution, this is what he told them about the Seventh Article, in which the same word “conventions” was used: “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution.” If the Seventh Article “speaks for itself” and points out that “the people alone” are to make the Constitution, with its grants of national power in the First Article, what word in that Seventh Article identifies the makers of the Constitution, which Madison and all Americans know was made by the one people of America? Is there any word in it except the one word “conventions” to describe the people or citizens of America? And if that one word “conventions” makes the Article speak for itself and tell us that the American citizens themselves made the whole Constitution, does not the word “conventions” in the Fifth Article speak just as plainly for itself and tell us that it also describes and identifies the one people of America, the citizens of America?

Why then tinker with the Fifth Article and repeat the monumental error on which the existence of the Eighteenth Amendment is assumed? Why propose an Amendment to the Fifth Article, which Amendment will itself assume that the Fifth Article already is a “grant” to the state legislatures of ability to give away from the citizens of America their exclusive power to say to what extent and in what matters their one American government may interfere with their individual freedom in their character as American citizens?

Why not be sane and admit that the Fifth Article is not a “grant” to the legislatures of state citizens? It is settled fact that each such legislature, like every legislature in America, must get its every power to govern its own citizens from its own citizens. That is why the Fourth Article guarantee of “a Republican Form of Government” to every state has taught us (pp. 250-1) the absurdity of the thought that the Fifth Article enables state governments outside Rhode Island to give its government power to interfere with the individual freedom of citizens of Rhode Island. And there is a further and more monumental absurdity, in this same respect, when we contrast this Fourth Article guarantee with the assumption that the Fifth Article is a “grant” to the state legislatures. One of the great purposes for which the whole American people made themselves one nation of men was that the strength of such a great nation might be used to secure to the Americans in every state the ability to govern themselves without any interference from outside the state, in all matters except those in which the citizens of America took from them the ability to govern themselves. That is why the citizens of America wrote that guarantee into the Fourth Article as a command to their inferiors, the states and the state governments. Having thus secured “a Republican Form of Government” to the Americans in every state by the command of the Fourth Article, is it conceivable that the same whole American people, immediately thereafter and in the Fifth Article, created for the citizens of America a government which has not even the semblance of “a Republican Form of Government”? That is the concept on which the existence of the Eighteenth Amendment depends. It is not in the Constitution unless, immediately after the guarantee of the Fourth Article and in the Fifth Article, the whole people of America said: “We have just insisted that the Americans in each state must be governed by a government which gets its power directly from them. For ourselves, however, as the whole American people, we are content to let two thirds of Congress and the legislatures of three fourths of the states interfere with our individual freedom, in all matters whatsoever. For that reason, we make this grant to those legislatures. For ourselves, as one people, we have no desire for a Republican Form of Government.”

Does not the claim that the Americans did say this in their Fifth Article entitle us more justly than Henry to exclaim: “I suppose that I am mad, or that my countrymen are so!” (3 Ell. Deb. 446.)

We know, with certainty, that the Eighteenth Amendment is not in our Constitution, and we know that the real and invincible challenge to its existence has never been made. What will be the epitaph of the audacious attempt of government to dictate to Americans as “subjects,” when the challenge is presented to the Supreme Court? No patriotic American can have the slightest doubt. No man, familiar with its history and traditions, can fail to know the answer of that Court to the question, “Citizen or Subject?”

It is not unknown that there is growing up in America, even among many public leaders and lawyers, an unfounded concept that the Supreme Court was created by the American citizens to make law. Such concept is quite in accord with the concept—indeed it is part of the concept—that government can create and constitute new government of men. But the entire history and tradition of the Supreme Court flatly denies the existence of any such concept in the mind of the Court itself. Even in the National Prohibition Cases, the Court quickly displayed the American concept of the relation of men to all governments in America. When the lawyers had finished their incessant talk about the imaginary Fifth Article “grant” which would make all American citizens “subjects” of some governments of state citizens, had the Tory concept of such a grant made the slightest impression upon the mind of the Court? We all know that in the decisions, which merely negatived four unsound challenges to the Amendment, the first statement of the Court was a reference to the power “RESERVED” in the Fifth Article.

And we know how, in the same litigations, the Court wholly ignored the absurd claim, even when advanced by a former justice of the Court, that, when governments had attempted to put anything into our Constitution, so long as the attempt did not involve changing the number of senators from a state, the Court was without power to review the action of governments or to protect the American citizen against usurpation by government.

The Constitution is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen, and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of the Court, and make it the mere reflex of the popular opinion or passion of the day. This Court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty. (Scott v. Sandford, 19 How. 393, at p. 426.)

The high power has been conferred upon this Court of passing judgment upon the acts of the state sovereignties and of the legislative and executive branches of the federal government, of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. (Luther v. Borden, 1849, 7 How. 1 at p. 47.)