CITIZEN OR SUBJECT?

BY
FRANCIS X. HENNESSY
OF THE NEW YORK BAR

“... that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth.”

NEW YORK
E. P. DUTTON & COMPANY
681 Fifth Avenue

Copyright, 1923
By E. P. Dutton & Company

All Rights Reserved

PRINTED IN THE UNITED STATES OF AMERICA

AUTHOR’S NOTE

Quotations from the Constitution of the United States are from the “Literal Print,” Government Printing Office, Washington, D. C., 1920.

The abbreviation “Ell. Deb.” refers to Elliot’s Debates, 2nd Edition, 5 vols., J. B. Lippincott & Co., Philadelphia, 1866.

The “Federalist” is quoted from the Lodge Edition, G. P. Putnam’s Sons, New York, 1894.

Wherever italics or capitals are used in a quotation and not directly stated to be those of the original author, they are the italics and capitals of the present writer.

Where the present writer interpolates his own words in a quotation, they are included in square brackets.

PREFACE

Many Americans are interested in the Eighteenth Amendment. Millions are interested in the American citizen.

It seems not to be known that the existence of one flatly denies the existence of the other. This is not theory. It is plain statement of a very simple fact. If there is an American citizen, the Amendment never entered the Constitution. On the contrary, if the Amendment is in the Constitution, there never has been an America or an American citizen.

Throughout this book the nation of free men is called “America.” This is done to distinguish the nation from the federation of states already existing and known as the United States, when the whole American people created the nation and continued the federation as a subordinate part of one system of government. The federation of states was proposed in 1777 and had complete existence in 1781. The nation of men was created in 1788.

On January 14, 1922, there was opened at Williamsburg, Virginia, the Marshall-Wythe School of Government and Citizenship. Judge Alton B. Parker, former Chief Justice of the New York Court of Appeals and a former candidate for President, delivered the opening address on “American Constitutional Government.” His eloquent address has since been made a public document and printed in the Congressional Record. In it, he warned us of the danger to America from those who do not understand our form of government and are coming here to destroy it.

“As people of this class have been coming to us in large numbers from nearly every quarter of the globe, we must take up the task of so educating all classes of our vast population, as that they shall fully understand the importance of maintaining, in its integrity, our constitutional plan of government. They should be taught in the first instance, why it was that the people, in the formative period of our government, were bound to have, and did at last secure, a government which the people could control despite their legislatures, whether representing the states or the federal government.”

The existence of the Eighteenth Amendment is based on the sheer assumption that we have not a government of that kind. By all who have discussed the Amendment, whether for or against it, one false assumption has been made. From that false assumption of all, the advocates of the Amendment have drawn their conclusion. On the conclusion is based the existence of the Amendment. The conclusion itself is the direct negation of the simplest and most important fact in America. Moreover, the conclusion itself means that the Americans, twelve years after they “did at last secure” the kind of government they “were bound to have” and of which Judge Parker spoke, voluntarily created a “government” of the opposite kind and made themselves its absolute “subjects.”

And the conclusion is correct, if the premise, which is the false assumption of all, be true.

Of course, the assumption is absolutely untrue. But no one has seen its simple and patent untruth. Wherefore, the first step in our education is for us to acquire knowledge of the plain fact that it is untrue. Because our leaders do not know the fact, we must go to other teachers.

By the common false assumption, the early Americans—who “did at last secure” the kind of government they “were bound to have”—are now charged with having committed the most monumental blunder in all history, a blunder which destroyed their entire achievement.

Rest assured! They did not commit that blunder. They themselves make that clear herein. In so doing, they teach us what, with Judge Parker, we agree that we all must know, if America and the American citizen are to remain. They are the best teachers in the world. They know what they teach because they did it. They do not weary or perplex us with theories or principles. Their teaching is the telling of simple facts. Best of all, they tell us in their own simple words, while they are talking to one another and engaged in the very accomplishment of the facts they teach.

It is a mere incident of their teaching that they settle the plain fact that the supposed Eighteenth Amendment is not in the Constitution.

It is our own candid belief that very few Americans will be found to prefer the existence of the Amendment to the existence of America itself. The early Americans make amazingly clear that there is no America and no American citizen if the Amendment is in the Constitution.

The nation of men, which we call America, and the subordinate federation of states, which we call the United States, are bound together in one dual system. They have a common name, “The United States of America.” They have a common Constitution, with national Articles for the men and federal Articles for the states. They have a common government, national for the men and federal for the states.

This is exactly the America of which Judge Parker spoke. We want to keep it. The early Americans, who made it, will enable us to keep it, if we listen to their teaching of the simple facts which they accomplished. Such a result would be some credit to the supposed Eighteenth Amendment. Even those most opposed to it would be compelled to acknowledge that its brief imaginary existence awoke us all to our first real concept of what America, the nation of free men, really is.

Francis X. Hennessy.

342 Madison Avenue,
New York City.
March 17th, 1923.

CONTENTS

CITIZEN OR SUBJECT?

CHAPTER I
SUBJECTS BECOME CITIZENS

The average American of this generation does not understand what it means to be a citizen of America. He does not know the relation of such a citizen to all governments in America. He does not know the relations of those governments to one another. If this ignorance should continue, the citizen of America would disappear. The American would become again a subject, as he was when the year 1776 opened.

The supposed Eighteenth Amendment is not in the Constitution unless the American already is a subject.

It is vital to every individual interest of the average American that he should know these things which he does not know. Happily for him, his ignorance is not as that of the public leaders of his generation. Their concept of the American and his relation to governments in America is one which contradicts the most definitely settled and clearly stated American law. On the other hand, the average American merely has a mind which is a blank page in these matters. As a result, it is the greatest danger to his individual interest that their concept largely guides his attitude in public affairs of the utmost moment to him.

The Americans of an earlier generation, who created the American nation of men and all governments in America, accurately knew the status of the American citizen and his relation to all governments. Their accurate knowledge was an insistent thing which guided their every act as a people in the period between 1775 and 1790, in which latter year the last of the Americans became citizens of America. Their knowledge came to them from their own personal experience in those fifteen years. They were a people, born subjects of government, who died citizens of a great nation and whose every government, in America, was their servant. This great miracle they themselves had wrought in the fifteen years between 1775 and 1790. Their greatest achievement, as the discerning mind has always realized, is what they did in the last four of those momentous years. They brought to its doing their valuable experience and training of the previous eleven years. That is why they succeeded, so far as human effort can secure human liberty by means of written constitutions of government, in securing to themselves and their posterity the utmost measure of protected enjoyment of human life and happiness. That we, their posterity, may keep their legacy intact and transmit it to the generations to come, it is necessary that we, the average Americans, should share somewhat with them their amazingly accurate knowledge of the simple but vital facts which enabled them to create a nation and, by its American Constitution, to secure to themselves, its citizens, protected enjoyment of life, liberty and happiness.

When they were actually engaged in this work of creation, it was truthfully said of them that “The American people are better acquainted with the science of government than any other people in the world.” For over a hundred years the history of America attested the truth of that statement. As they were a simple people, their knowledge of the science of government was derived from their accurate understanding of a few simple facts. It is a certainty that we can keep their legacy by learning those same facts. Let us quickly learn them. The accurate knowledge of them may best be acquired by briefly living again, with those simple Americans of an earlier generation, through their days from 1775 to 1790.

The individual Americans of that generation were all born subjects of the British government. We do not understand the meaning of that statement until we accurately grasp the vital distinction between a “subject” of a government and a “citizen” of a nation.

It is hardly necessary to point out, but it is amazingly important to remember, that a “subject,” as well as a “citizen,” is first of all a human being, created by an omnipotent Creator and endowed with human rights. All would be well with the world, if each human being always accurately knew the difference between right and wrong and if his accurate knowledge invariably controlled his exercise of his human freedom of will. In that case, no human government would be needed to prescribe and to enforce rules of personal conduct for the individual. As such is not the case, human government must exist. Its sole reason for existence, therefore, is that it may prescribe and enforce rules for those whom it can compel to obey its commands and that it may thus secure the utmost measure of protected enjoyment of human rights for those human beings whose government it is.

Time does not permit and necessity does not require that we dwell upon the various types of government which have existed or which have been created supposedly to meet this human need. It is sufficient to grasp the simple and important fact that government ability to say what men may or may not do, in any matter which is exercise of human freedom, is the very essence of government. Where a government has no ability of that kind, except what the men of its nation grant to it, where those men limit and determine the extent of that ability in their government, the men themselves are citizens. Where a government claims or exercises any ability of that kind, and has not received the grant of it directly from the men of the nation, where a government claims or exercises any ability of that kind, without any grant of it, or by grant from government to government, the men of that nation are subjects.

In the year 1775, under the British law, the Parliament at Westminster claimed the unqualified right to determine in what matters and to what extent laws should be made which would interfere with individual freedom. From such decision of the legislative part of the British Government there was no appeal save by force or revolution. For this reason, that every human being under that Government must submit to any interference with individual freedom commanded by that Legislature, all British human beings were “subjects.” And, as all Americans were then under that British Government, all Americans were then “subjects.” Such was their legal status under the so-called British Constitution. Curiously enough, however, until a comparatively short time prior to 1775, such had not been the actual status of the Americans. In this sharp contrast between their legal and their actual status, there will be found both the cause of their Revolution and the source of their great and accurate knowledge of the sound principles of republican government which they later made the fundamental law of America.

From the day their ancestors had first been British colonists in America their legal status had been that of subjects of the British Government. But, so long as they remained merely a few widely scattered sets of human beings in a new world, struggling to get a bare existence from day to day, they offered no temptation to the omnipotent British Government to oppress them, its subjects. They still had to show the signs of acquiring that community wealth which has always been the temptation of government to unjust exaction from the human beings it governs. For that reason, their legal government concerned itself very little about them or their welfare. It thus became their necessity to govern themselves for all the purposes for which they locally needed government as security to their individual welfare.

Only thirteen years after the first permanent English settlement in Virginia, “Sir George Yeardley, then the Governor of the colony, in 1619 called a general assembly, composed of representatives from the various plantations in the colony, and permitted them to assume and exercise the high functions of legislation. Thus was formed and established the first representative legislature that ever sat in America. And this example of a domestic parliament, to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished [until 1917] throughout America, as the dearest birthright of freemen.” (1 Ell. Deb. 22.)

“On the 11th of November, 1620, those humble but fearless adventurers, the Plymouth colonists, before their landing, drew up and signed an original compact, in which, after acknowledging themselves subjects of the crown of England, they proceed to declare: ‘Having undertaken, for the glory of God, and the advancement of the Christian faith, and the honor of our king and country, a voyage to plant the first colony in the northern parts of Virginia, we do, by these presents, solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid. And by virtue hereof do enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience.’ This is the whole of the compact, and it was signed by forty-one persons.

“It is, in its very essence, a pure democracy; and, in pursuance of it, the colonists proceeded soon afterwards to organize the colonial government, under the name of the Colony of New Plymouth, to appoint a Governor and other officers and to enact laws. The Governor was chosen annually by the freemen, and had at first one assistant to aid him in the discharge of his trust. Four others were soon afterwards added, and finally the number was increased to seven. The supreme legislative power resided in, and was exercised by, the whole body of the male inhabitants, every freeman, who was a member of the church, being admitted to vote in all public affairs. The number of settlements having increased, and being at a considerable distance from each other, a house of representatives was established in 1639, the members of which, as well as all other officers, were annually chosen.” (1 Ell. Deb. 25.)

These are two examples typical of the way in which the English colonists, for the first hundred years, largely governed themselves by legislators chosen from among themselves. In this manner, while legally “subjects” of their European government, these Americans were actually “citizens” of their respective communities, actually governed in their individual lives and liberties by governments which derived all their powers of government from these “citizens.” In this manner, through the best teacher in the world, personal experience, they learned the vital difference between the relation of “subject” and “citizen” to governments. Later, the echo of that education was heard from Lincoln when he pleaded that government of the people, by the people and for them should not perish from the earth.

As early as 1754 these Americans began to feel the first real burden of their legal status as “subjects.” Their community wealth was beginning to attract the attention of the world. As a result, the legal Government awoke to the fact of their existence and of its own omnipotent ability to levy upon that wealth. The Americans, for more than a century educated in actual self-government, quickly showed the result of that education to the accurate knowledge that no government can have any just power except by the consent or grant of those to be governed by the exercise of such power. As far back as 1754, deputies of the various American colonies, where human beings had educated themselves to be free men, assembled at Albany in an endeavor to propose some compromise by which the American people would be enabled to preserve their human freedom against unjust interference by the Westminster Legislature. We are all familiar with the failure of that endeavor. We are all familiar with the successive steps of the continuing struggle between “subjects,” educated to be “citizens,” and an omnipotent government, unshaken in its purpose to make their actual status the same as their legal one.

When the year 1776 dawned, these Americans were still “subjects” under the law of the British Empire. They were, however, “subjects” in open rebellion against their government, justifying their rebellion on the basic American legal principle that every just power, even of a lawful government, must be derived from the consent or grant of the human beings themselves who are to be governed. On the memorable day in July of that year, despairing of any success in getting the British Government to recognize that basic principle, and asserting, for the first time in history, that they themselves were collectively the possessors of the supreme human will in and for America, they enacted the immortal Statute which we know as the Declaration of Independence.

The Declaration of Independence, which was the first political act of the American people in their independent sovereign capacity, lays the foundation of our national existence upon this broad proposition: “That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” (Justice Bradley’s opinion in Slaughter House Cases, 16 Wall. 36, at page 115.)

In this Statute, the American people clearly stated and definitely settled for all time the basic legal principle on which rests the validity of every constitutional article or statute law, which either directly interferes or vests ability in governments to interfere with an American in the exercise of his human freedom. There is nothing vague or ambiguous in their statement. The legal principle, so clearly stated and so definitely settled, is that no government in America can have any just power of direct interference with individual freedom unless such power be derived by direct grant from the Americans to be governed by the exercise of that power.

That Statute has never been repealed. The Americans of that generation, throughout all the momentous political battles of the next thirteen years, when they were making and unmaking nations and creating a federation of nations, and later subordinating it to a union of human beings, never failed to obey that Statute and to act in strict conformity to its basic American principle.

From the moment when that Statute was enacted by the supreme will in America, every American ceased forever to be a “subject” of any government or governments in the world. It was not until 1917 that any government or governments dared to act as if the American were still a “subject.”

In that summer of 1776, as the Americans were engaged with their former Government in a bitter and protracted war, they had little time or thought to give, as one people, to the constitution of a government best designed to secure to themselves the utmost possible measure of protected enjoyment of individual human freedom. In their rebellion, they had delegated the management of their common interests to a committee of deputies from each former colony, which committee was called the Congress. By the declared supreme will of the whole American people, the Americans in each former colony now constituted an independent nation, whose human members were now the “citizens” of that nation. Under the declared basic American legal principle, it was imperative that any government should get its every valid power from its own citizens. Knowing this, the Congress, almost immediately after the Declaration of July, made the formal suggestion to the citizens in each nation that they constitute a government for themselves and that they grant to such government ability to interfere with their own human freedom in such matters and to such extent as they deemed wise. The manner in which the citizens of each nation acted upon this suggestion should have stamped itself so irrevocably upon the mind of America as never to have been forgotten by any later generation of Americans. The citizens of those nations were of the “people who were better acquainted with the science of government than any other people in the world.” In each nation they were creating the very essence of security for a free people, namely, a government with limited ability to interfere with individual freedom, in some matters, so as to secure the greatest possible protected enjoyment of human liberty. They knew, as only human beings could know who were then offering their very lives to uphold the basic law of America, that such ability could never be validly given to any government by government itself, acting in any manner, but only by direct action and grant of those later to be governed by the exercise of that ability. What method did those citizens, so thoroughly educated in the basic principles of republican government, employ to secure the direct action of the human beings themselves in giving that ability of that kind to their respective governments? They acted upon the suggestion from the Congress of 1776, as Marshall later expressed it from the Bench of the Supreme Court, “in the only manner in which they can act safely, effectively and wisely on such a subject, by assembling in convention” in their respective states. Long before Marshall voiced judicial approval of this American method of direct action by the people themselves, in matters in which only the people themselves can validly act at all, Madison, in the famous Virginia convention of 1788, paid his tribute to these conventions of the people in each of the thirteen nations. This was the tribute of Madison: “Mr. Chairman, nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” (3 Ell. Deb. 616.)

Later herein there will be occasion to speak at greater length of this American method of direct action by the people themselves, through the deliberative conventions of deputies chosen by the people and from the people for that one purpose, giving to governments a limited ability to interfere with individual freedom. At this point, it is sufficient to say that, since 1789 and until 1917, no government in America ever claimed to have acquired ability of that kind except through the action of such a convention or conventions or through the direct voting of its citizens themselves for or against the grant of such ability.

If we again turn our minds upon those later days of 1776, we find that the Americans, through the direct action of the people in each independent nation, had become respectively citizens of what we now know as their respective states, each of which was then a free nation. Those thirteen nations were then allied in war. There did not yet exist even that political entity, later created and known as a federation of those nations. At that time and until quite some years after the Revolution had ended, there was no such thing as a “citizen” of America, because the America we know, the organized human membership society which is the American nation, did not yet exist. At that time and until the American nation did actually exist, as a political entity, there was no government in the world and no collection of governments in the world, which, on any subject or to any extent, could interfere generally with the individual freedom of Americans, as Americans. In each of the thirteen American nations, the citizens of that nation had vested their own government with some ability of that kind.

At this point, it is well to digress for a moment in order that we may well understand that in none of these thirteen nations did its citizens vest in its government an unlimited ability to interfere with individual freedom. All the citizens of those respective nations were then battling with a mighty Government which claimed such unlimited ability over all of them, as subjects, and they were battling to establish forever in America the basic doctrine that no government of free men could ever have unlimited ability of that kind. In each of the thirteen nations, its citizens vested its government with ability of that kind only to a limited extent. They did this in strict conformity to republican principles.

For the many who do not know, it is well to state clearly the distinction between a pure democracy and a republic. In both, the human beings constitute the nation or the state and are its citizens. In both, the citizens themselves limit the matters and the extent in which they shall be governed at all in restraint of their individual freedom. In both, therefore, it is accurate and truthful to state that the people govern themselves. The actual difference lies in one fact. In a democracy the people themselves assemble and themselves enact each specific rule of conduct or law interfering with individual freedom. In a republic, it is always possible that the citizens may assemble, as in a pure democracy, and enact any specific rule of conduct or law. But, in a republic, its citizens generally prefer to act, in such matters, through attorneys in fact or representatives, chosen by themselves for the special purpose of exercising a wise discretion in making such laws. In a true republic, however, where the citizens are to remain free men, they secure to themselves absolute control of their representative lawmakers through two most effective means. In the first place, they ordain that their attorneys in fact for the purpose of law-making, generally called their legislators, shall be selected by themselves from time to time, at comparatively short intervals. This precaution enables the people, through new attorneys in fact, quickly to repeal a law of which they do not approve. In the second place, the people, in constituting their government, limit the law-making ability of these temporary attorneys in fact or legislators. This is the most important fact in a free republic. Later herein there will be explained the marvelous and effective manner in which this particular security for human freedom was later achieved by the citizens of the Republic which we know as America, when they constituted their government. At present, there is to be mentioned the general method which the citizens of each of those thirteen nations, in 1776, employed to achieve this particular security.

In each nation the citizens constituted a legislature to be their only attorney in fact for the purpose of making valid laws. In this legislative department they did not vest enumerated powers to interfere with individual freedom. But in it they did vest whatever ability of that kind, under the American doctrine of human liberty, they thought a government of free men or citizens ought to have. They did not, however, grant unlimited ability to make laws interfering with individual freedom. When constituting their government they named many matters in which no laws could be made, such as laws abridging the right of free speech, laws suspending the privilege of habeas corpus, etc. Outside these named matters, they granted law-making ability of that kind to whatever extent American principles of human liberty determined a government ought to have. The extent of that ability, so to be determined, they left to the legislature to ascertain in the first instance. But to the judicial department they gave the right finally to ascertain and decide whether, in any particular law, the legislative department had exceeded its granted ability.

In living again the education days of the Americans, who later created and constituted the republican nation which is America, we have come now to the close of the eventful year 1776. We find ourselves, at that time, viewing this status of the American human being and his relation to all governments.

With his fellow Americans, he has declared that they are not the subjects of any government or governments in the world. With his fellow Americans, on many battlefields, he is fighting their former Government, which still claims that they are its subjects. If he is a Virginian, he and his fellow Virginians, with the consent of their fellow Americans, have constituted themselves a free and independent nation of human beings and have given to their law-making attorney in fact, the legislature of Virginia, some ability to make laws in restraint of the individual freedom of Virginians, in such matter and to such extent, as the citizens of Virginia have deemed wise. In each of the other twelve nations the situation is the same. In no nation, in America, has any government servant and attorney in fact of the people any ability whatever to interfere with human freedom in any matter or to any extent, except such ability of that kind as has been given to that government by direct grant from its citizens. Nowhere, in America, has any government any power whatever, in any matter or to any extent, to make a valid command restraining the human freedom of the individual American as an American. All Americans are fighting throughout America with the armies of the only government in the world which claims such ability. All Americans everywhere are determined to win that war and keep it the basic law of America that no government ever shall have ability of that kind unless the whole American people, by direct grant from themselves, shall give it to a general American government. There is yet no republic of America. There are yet no citizens of America. There are only citizens of thirteen respective nations, which nations are allied in an existing war. The affairs of the allied nations are being directed by a committee of delegates from the different nations, called the Congress. The first Committee or Congress of that kind, known in history as the First Continental Congress, had met at Philadelphia from September 5 to October 26, 1774, and “recommended peaceful concerted action against British taxation and coercion.” The second Committee, known as the Second Continental Congress, had assembled, also at Philadelphia, on May 10, 1775, and had assumed direction of the war.

CHAPTER II
THE STATE GOVERNMENTS FORM A UNION OF STATES

We have now lived with the American of an earlier generation through the days in which he ceased to be a subject of any government, and in which he established forever in America the basic law that no government can exercise or possess any ability to interfere with his individual freedom except by direct grant from its citizens. We have seen him, in each of the former colonies, create a nation, become one of its citizens and, with his fellow citizens of that nation, give to its government some ability of that kind.

When we recall it to be the tribute of history that these Americans were better acquainted with the science of government than any other people in the world, it is well to reflect for a moment upon the significant exhibition of that knowledge during the days through which we have just lived with them.

When the suggestion came from Philadelphia, in the summer of 1776, that the Americans in each former colony constitute a government for their own nation and give to it a limited ability to govern themselves in restraint of their individual freedom, it is recorded history that Americans generally knew that a gift of that kind to government could never be validly made by governments. It “was felt and acknowledged by all” that only its own citizens ever could grant ability of that kind to any government.

As the people of New England had been the most thoroughly trained in the actual experience of self government, we naturally find them acting upon and clearly stating the American legal principle that legislatures never can give ability of that kind to government. The records of Concord, Massachusetts, for October 21, 1776, show how clearly this was understood by the Americans of that generation. After the Philadelphia suggestion had been made, the Massachusetts legislature framed a constitution and sent it to the Massachusetts townships for approval. On that October 21, 1776, the people of Concord refused to act upon it. Their reason was that government ability to interfere with human freedom could never come from legislatures but must always come directly from the citizens themselves. Let the Americans of Concord, in their own words, impart some of their knowledge to the Americans of this generation.

“Resolved secondly, that the supreme Legislative, either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution or form of government for reasons following, viz.: First, because we conceive that Constitution in its proper idea intends a system of principles established to secure the subject in the possession of and enjoyment of their Rights and Privileges against any encroachment of the Governing Part. Secondly, because the same body that forms a Constitution have of consequence a power to alter it. Thirdly, because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encroachment of the Governing Part on any or on all their Rights and Privileges.”

(See Constitutional Review, April, 1918, p. 97.)

The people of Concord or New England were not alone in this knowledge. On this we have the later testimony of Marshall from the Bench of the Supreme Court. Speaking of that day, a few years after 1776, when the whole American people created their nation and gave enumerated powers of that kind to its government, he said:

But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. (M’Culloch v. Maryland, 4 Wheat. 316.)

Fixing this knowledge of that day firmly in our mind, let us go on with the remarkable Americans of that generation through the next period in which the relation of government to government and of nation to nation was changed, but in which the status of the citizen of each nation and his relation to all governments remained exactly what he and his fellow citizens of that nation had made it.

On November 15, 1777, there came from the Congress at Philadelphia another suggestion, this time a proposal to the thirteen nations that they, already allied in an existing war, should form a permanent union or federation of nations. With that proposal went a drafted set of constitutional Articles, having for their purpose the establishment of a government (to be called a Congress) for the proposed federation, some of which Articles would give to that government ability to govern the members of the union, the thirteen nations. The proposal and the constitutional Articles were sent, for ratification or rejection, to the legislature of each nation as its proper attorney in fact in creating a federal union of nations and in giving federal ability to govern, which federal ability never directly interferes with individual freedom.

Let us reflect upon the accurate knowledge of the science of government again shown by the Americans of that generation in that proposal. Only a few short months earlier there had come, from the same men at Philadelphia, the proposal that national government be established in each nation. These men at Philadelphia had been subjects of the British Government until July, 1776. All government ability to interfere with human freedom, then as now, under British law, had its source in a legislature, the Westminster Parliament. And yet these men at Philadelphia, in the summer of 1776, had accurately known that, under basic American law, such government ability could only have one valid source, direct action by the citizens themselves assembled in conventions. Acting on this knowledge in the summer of 1776, the suggestion that government in each state be given national power to govern, namely, ability directly to interfere with individual freedom, had come as a suggestion to the citizens of each nation for their own direct action. That suggestion had been followed, and thus had been exercised, for the first time since Americans ceased to be subjects, the inherent and inalienable and always existing ability of the citizens of a free nation to make any kind of constitutional Articles of government, including the national kind which give government any power to interfere with individual freedom.

When, therefore, these same men at Philadelphia made their proposal of November, 1777, that other constitutional Articles of government be made in America, the proposed Articles of Union between nations, it might have been natural that this proposal also should have suggested ratification of these Articles by the people themselves. It would have seemed all the more natural, when we remember that one of the leaders at Philadelphia in that time was Jefferson, the historic champion of human individual freedom against all governments. But the Americans of that generation and their leaders were not as the leaders of our own time. They knew very accurately the difference between a national Article of government, which gave ability to interfere with human freedom, and a federal Article, which gave no ability of that kind but only ability to govern nations or states, as political entities. With this accurate knowledge of the vital distinction between a national and a federal Article, they naturally knew that either the people themselves or the legislative attorney in fact of the nation, which makes all agreements for the nation with other nations, may validly make a federal Article. Therefore, they sent the proposed Articles of Confederation between nations (not one of which gave national power to the proposed federal government) to the legislatures of the respective nations for ratification or rejection on behalf of the nations. As Marshall later summed up the knowledge which prompted that sending of those federal articles to the legislatures:

To the formation of a league, such as was the Confederation, the State sovereignties were certainly competent. (M’Culloch v. Maryland, 4 Wheat. 316.)

Each state legislature acted favorably upon the proposed articles and ratified them. By July 9, 1778, the legislatures of ten states had ratified. The legislatures of New Jersey and Delaware followed before the end of February, 1779. The legislature of Maryland did not ratify until March 1, 1781.

It is well for the average American of the present generation, at this point, to fix firmly in his mind that this legislative ratification of these federal Articles was the important exercise of an existing and recognized ability of state legislatures to make all constitutional articles of a federal nature, which never confer any government ability directly to interfere with human freedom. It is well for the same American also to fix firmly in his mind that it was the exercise of an ability to make constitutional articles entirely distinct from the other existing ability to make them, which had been exercised, in each nation, directly by the citizens themselves, in “conventions,” in the preceding year of 1776. In that year, there had been exercised the inherent and inalienable and always existing ability of citizens of a nation, assembled in conventions of deputies chosen for that express purpose, to make any kind of constitutional article, whether it confers federal or national power on government. In the years 1777 to 1781, there had been exercised the recognized and existing but limited ability of state legislatures to make federal articles, an ability clearly then known not to include the ability to confer upon government national power to interfere with individual freedom.

Living with those Americans through their great days, we have now reached the day in 1781 when they were all citizens of some nation but were not all citizens of the same nation. The great Republic, America, had not yet been born. The legal status of the American as an individual, and his relation to all governments was exactly the same as it had been since 1776. Each American was the citizen of some nation. His individual freedom could be directly interfered with only by some law of the legislature of that single nation under a valid grant, from him and his fellow citizens, of power to enact that law on that subject. Neither the legislature of any other nation in America, nor the legislatures of all other nations in America, nor the government of nations which those legislatures had created and endowed with federal powers, the Congress of the Federation, could singly or collectively issue a single command to him, interfering in any manner with his human freedom, or could give to any government or governments a power to issue such a command.

There were existing and recognized by all in America two distinct and different abilities—one limited and the other unlimited—to make constitutional articles. One was the limited ability of state legislatures. They could give federal power to a government, but they could not give any national power or power directly to interfere with human freedom. The other was the unlimited ability of the citizens of any nation. They could give any kind of power, federal or national, to their own government. Each ability, at a different time, had been evoked to exercise by a distinct proposal from the same Americans at Philadelphia, the Second Continental Congress, which had under its direction the conduct of the Revolutionary War.

Dormant for the time being, but existing over all other ability in America, was the supreme will of the collective people of America, who had not yet created their own great Republic or become its citizens or given to its government its enumerated powers to interfere with their individual freedom.

This was the legal status of the American, and his relation to all governments, and the relation of governments in America to one another, when the Treaty of Peace was concluded with England on September 3, 1783, and was later ratified by the Federal Congress on January 14, 1784.

CHAPTER III
AMERICANS FIND THE NEED OF A SINGLE NATION

Living over the great days of our forefathers, we now approach the greatest of all. It comes four years after the end of the Revolution. Not satisfied with a mere union of their states, the whole American people, in 1787, proposed to form the great nation of men, America. On June 21, 1788, it is created by them. On March 4, 1789, its only government, now also the government of the continued union of states, begins to function.

Between May 29, 1787, and March 4, 1789, the whole American people did their greatest work for individual liberty. That was their greatest day. Most Americans of this generation know nothing about that period. Still more is it to be regretted that our leaders in public life, even our most renowned lawyers, do not understand what was achieved therein for human freedom. It is of vital importance to the average American that he always know and understand and realize that achievement. That he do so, it is not in the slightest degree essential that he be learned in the law. It is only necessary that he know and understand a few simple facts. The experience of five years since 1917 teaches one lesson. It is that Americans, who have not the conviction that they are great constitutional thinkers, far more quickly than those who have that conviction, can grasp the full meaning of the greatest event in American history.

The reason is plain. Back in the ages, there was a time when scientific men “knew” that the earth was flat. Because they “knew” it, the rest of men assumed that it was so. And, because they “knew” it, it was most difficult to convince them that their “knowledge” was false “knowledge.”

In a similar way, our statesmen and constitutional thinkers came to the year 1917 with the “knowledge” that legislatures in America, if enough of them combined, had exactly the omnipotence over the individual freedom of the American which had been denied to the British Parliament by the early Americans. Naturally, it is difficult for them to understand that their “knowledge” is false “knowledge.” For us who have no false knowledge to overcome, it is comparatively simple to grasp what those other plain Americans of 1787 and 1788 meant to accomplish and did accomplish. Why should it not be simple for us? With those other plain Americans, we have just been through their strenuous years which immediately preceded their greatest days of 1787 and 1788. They were a simple people as are we average Americans of this generation. From living with them through those earlier days, we have come to know their dominant purpose. They sought to secure to themselves and to their posterity the greatest measure of protected enjoyment of human life, liberty and happiness against interference from outside America and against usurpation of power by any governments in America. Certainly, it ought not to be difficult for us to grasp accurately and quickly what they meant to do and what they did do in their last and greatest achievement in the quest of that protected enjoyment of human freedom. But, with all our happy predisposition accurately to understand the meaning of the facts in 1787 and 1788, that understanding cannot come until we know the facts themselves. Let us, therefore, live through those years with those other plain Americans of whom we are the posterity. Only then can we understand their legacy of secured liberty to us and keep it against usurpation by those who do not understand.

So long as the former subjects continued their Revolution, it was only natural that Americans should not realize how inadequately a mere federation of states would serve really to secure the protected enjoyment of individual human freedom. But, as soon as that war had ended, discerning men began quickly to realize that fact. Jealousies between nations, jealousies in abeyance while those nations were fighting a common war for independence, quickly had their marked effect upon the relations of these nations to one another and upon the respect which they showed to the commands of the government of the federation of which all those nations were members. As a matter of fact, those commands, because the governing powers of that government were wholly federal, were tantamount to nothing but requisitions. Those requisitions were honored largely by ignoring them. There was no way of enforcing respect for them or compelling observance of them. The plan of a purely federal union of nations permitted no method of enforcement save that of war upon whatever nation or nations might refuse obedience to a requisition. Such a war would have been repugnant to the mind of every patriotic American.

This was only one of the many defects coming from the fact that Americans, in spirit one people or nation, had no political existence as one nation and had no general national government, with general powers over all Americans, to command respect at home and abroad for the individual freedom of the American.

There is neither time nor necessity for dwelling further upon the fact, quickly brought home to the American people after the close of their Revolution, that a purely federal government of the states was no adequate security for their own freedom. Let the words of one of themselves, apologizing for the inadequacy of that government, attest their quick recognition that it was inadequate. They are the words of Jay in The Federalist of 1787. This is what he said: “A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.” (Fed., No. 2.)

CHAPTER IV
THE BIRTH OF THE NATION

Living through those old days, immediately after the peace with England of 1783, we find that public and official recognition of a fatal defect in the federal form of union came from the inability of its federal government, which had no power over commerce, to establish a uniform regulation of trade among the thirteen American nations themselves and between them and foreign nations. Discerning men, such as Madison and Washington and others, already recognized other incurable defects in any form of union which was solely a union of nations and not a union of the American people themselves, in one nation, with a government which should have national, as well as federal, powers. Taking advantage of the general recognition that some central power over commerce was needed, the legislature of the nation of Virginia appointed James Madison, Edmund Randolph and others, as commissioners to meet similar commissioners to be appointed by the twelve other nations. The instructions to these commissioners were to examine into the trade situation and report to their respective nations as to how far a uniform system of commerce regulations was necessary. The meeting of these commissioners was at Annapolis in September, 1786. Only commissioners from the nations of Virginia, Delaware, Pennsylvania, New Jersey and New York attended. The other eight nations were not represented.

Madison and Hamilton were both present at Annapolis and figured largely in what was done there. It is an interesting and important fact that these two played a large part from its very inception in the peaceful Revolution which brought to an end the independent existence of thirteen nations—a Revolution which subordinated these nations, their respective national governments, and their federation to a new nation of the whole American People, and to the Constitution and the government of that new nation.

At every stage of that Revolution, these two men were among its foremost leaders. Recorded history has made it plain that Madison, more than any other man in America, participated in planning what was accomplished in that Revolution. He drafted the substance of most of the Articles in what later became the Constitution of the new nation. By the famous essays (nearly all of which were written by himself or Hamilton) in The Federalist, explaining and showing the necessity of each of those Articles, he contributed most effectively to their making by the people of America, assembled in their conventions. He actually drew, probably in conference with Hamilton, what we know as the Fifth Article, which will later herein be largely the subject of our exclusive interest.

The Annapolis commissioners made a written report of their recommendations. This report was sent to the respective legislatures of the five nations, which had commissioners at Annapolis. Copies were also sent to the Federal Congress and to the Executives of the other eight nations in the federation. The report explained that the commissioners had become convinced that there were many important defects in the federal system, in addition to its lack of any power over commerce. The report recommended that the thirteen nations appoint “commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States; to devise such further provisions as shall seem to them necessary to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled as, when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same.”

The Annapolis recommendation was acted upon by the legislatures of twelve nations. Each nation, except Rhode Island, appointed delegates to attend the Philadelphia Convention to begin in May, 1787. Madison himself, in his introduction to his report of the debates of the Philadelphia Convention, gives his own explanation of why Rhode Island did not send delegates. “Rhode Island was the only exception to a compliance with the recommendation from Annapolis, well known to have been swayed by an obdurate adherence to an advantage, which her position gave her, of taxing her neighbors through their consumption of imported supplies—an advantage which it was foreseen would be taken from her by a revisal of the Articles of Confederation.” This is mentioned herein merely to bring home to the minds of Americans of the present generation the reality of the fact, now so difficult to realize, that there were then actually in America thirteen independent nations, each having its powerful jealousies of the other nations and particularly of its own immediate neighbors. The actual reality of this fact is something which the reader should not forget. It is important to a correct understanding of much that is said later herein. It is often mentioned in the arguments that accompanied the making of our Constitution, that the nation of New Jersey was suffering from exactly the same trouble as the nation of Rhode Island was causing to its neighbors. Almost all imported supplies consumed by the citizens of New Jersey came through the ports of New York and Philadelphia and were taxed by the nations of New York and Pennsylvania.

Interesting though it would be, it is impossible herein to give in detail the remarkable story of the four months’ Convention at Philadelphia in 1787. It began on May 14 and its last day was September 17. It is recommended to every American, who desires any real knowledge of what his nation really is, that he read, in preference to any other story of that Convention, the actual report of its debates by Madison, which he himself states were “written out from my notes, aided by the freshness of my recollections.” It is possible only to refer briefly but accurately to those actual facts, in the history of those four months, which are pertinent to the object of this book.

At the very outset, it is well for us Americans to know and to remember the extraordinary nature of the recommendation which had come from Annapolis and of the very assembling of that Philadelphia Convention. The suggestion and the Convention were entirely outside any written law in America. Every one of the thirteen colonies was then an independent nation. These nations were united in a federation. Each nation had its own constitution. The federation had its federal constitution. In none of those constitutions was there any provision whatever under which any such convention as that of Philadelphia could be suggested or held. The federal Constitution provided the specific mode in which ability to amend any of its federal Articles could be exercised. Such provision neither suggested nor contemplated any such convention as that to be held at Philadelphia. For these reasons, Madison and Wilson of Pennsylvania and other leading delegates at that Convention stoutly insisted that the Philadelphia Convention had not exercised any power whatever in making a proposal.

“The fact is, they have exercised no power at all; and, in point of validity, this Constitution, proposed by them for the government of the United States, claims no more than a production of the same nature would claim, flowing from a private pen.” (Wilson, Pennsylvania State Convention in 1787, 2 Ell. Deb. 470.)

“It is therefore essential that such changes [in government] be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens.” (Madison, Fed. No. 40.)

But there was a development even more remarkable on the second day of this unauthorized Convention.

The Convention was presided over by Washington. Among the other delegates were Hamilton of New York, Madison and Randolph and Mason of Virginia, Franklin and Wilson and Robert Morris and Gouverneur Morris of Pennsylvania, and the two Pinckneys of South Carolina. Madison himself, speaking of the delegates in his Introduction to his report of the Debates, says that they were selected in each state “from the most experienced and highest standing citizens.” The reader will not forget that each of these men came under a commission from the independent government of a sovereign and independent nation, twelve such independent governments and nations being represented in that Convention. In the face of this important fact, it is amazing to realize the startling proposition offered for consideration, on May 30, 1787. On that day, the Convention having gone into a Committee of the Whole, Randolph, commissioned delegate from the independent government and nation of Virginia, moved, on the suggestion of Gouverneur Morris, commissioned delegate from another independent government and nation, that the assembled delegates consider the three following resolutions:

“1. That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation—namely, common defense, security of liberty, and general welfare.

“2. That no treaty or treaties among the whole or part of the states, as individual sovereignties, would be sufficient.

“3. That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.” (5 Ell. Deb. 132.)

If we wish to realize the sensational nature of those resolutions, let us assume for a moment a similar convention of delegates assembled in the City of New York. Let us assume that the delegates have been commissioned respectively by the governments of America, Great Britain, Ireland, Canada, Australia, New Zealand, France, Belgium and other nations. Let us assume that the ostensible and proclaimed purpose of the convention, stated in the commissions of the delegates, is that it frame a set of federal Articles for a league or federation of the independent nations represented and report the drafted Articles to the respective governments for ratification or rejection. Let us then assume that, on the second day of the convention, Lloyd George, on the suggestion of Charles E. Hughes, calmly proposes that the convention, as a Committee of the Whole, consider three resolutions, exactly similar to those proposed by Randolph on May 30, 1787. Imagine the amazement of the world when it found that the resolutions were to the effect that the convention should draft and propose a constitution of government which would create an entirely new nation out of the human beings in all the assembled nations, and create a new national government for the new nation, and destroy forever the independence and sovereignty of each represented nation and its government and subordinate them to the new national and supreme government.

This was exactly the nature of the startling resolutions of Randolph. Moreover, before that one day closed, the Committee of the Whole actually did resolve “that a national government ought to be established consisting of a supreme legislative, executive and judiciary.” The vote was six to one. Massachusetts, Pennsylvania, Delaware, North Carolina, Virginia and South Carolina voted “aye.” From that day on, the Convention continued to prepare a proposal involving the destruction of the complete independence of the existing nations and of the governments which respectively commissioned the delegates to the Convention. From that day on, the Convention concerned itself entirely with the drafting of constitutional Articles which would create a new nation, America, the members thereof to be all the American people, and would constitute a national government for them, and give to it national powers over them, and make it supreme, in its own sphere, over all the existing nations and governments.

It is interesting and instructive to know that all this startling purpose, later completely achieved by appeal to the existing ability of the possessors of the supreme will in America, the people, assembled in their conventions, had not been the conception of a moment.

We find Madison, by many credited with the most logical mind of his remarkable generation, carefully planning, long before the meeting of the Convention, a quite detailed conception of the startling proposal of Randolph. In a letter from Madison to Randolph, dated April 8, 1787 (5 Ell. Deb. 107), he speaks of “the business of May next,” and of the fact “that some leading propositions at least would be expected from Virginia,” and says, “I will just hint the ideas that have occurred, leaving explanations for our interview.” When we remember the remarkable manner, entirely novel in the history of political science, in which our Constitution creates a new nation and its supreme national government and yet keeps alive the former independent nations and their federation, the next sentence of that letter is of absorbing interest. It reads, “I think, with you, that it will be well to retain as much as possible of the old Confederation, though I doubt whether it may not be best to work the valuable articles into the new system, instead of engrafting the latter on the former.” When we read the detailed story of the Philadelphia Convention and study its product, our Constitution, there worded and later made by the people, we realize that Madison’s idea, expressed in the quoted sentence, was accurately carried out largely through his own efforts.

Turning now to a later paragraph in that same April letter, we marvel at the foresight, the logical mind and the effective ability of the writer in later securing almost the exact execution of his idea by the entire people of a continent, even though that idea was the destruction of the independence of their respective nations and of their existing respective governments. That paragraph reads: “I hold it for a fundamental point, that an individual independence of the states is utterly irreconcilable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the states into one simple republic is not less unattainable than it would be inexpedient. Let it be tried, then, whether any middle ground can be taken, which will at once support a due supremacy of the national authority, and leave in force the local authorities so far as they can be subordinately useful.”

This remarkable letter then goes on, paragraph by paragraph, to suggest that, in the new Articles, the principle of representation be changed, so as not to be the same for every state; the new government be given “positive and complete” national power “in all cases where uniform measures are necessary”; the new government keep all the federal powers already granted; the judicial department of the new government be nationally supreme; the legislative department be divided into two branches; the new government have an executive department; there be an Article guaranteeing each state against internal as well as external dangers. In other words, the letter reads like a synopsis of the principal provisions of our present Constitution, although the letter was written over a month before the Philadelphia Convention began to draft that Constitution.

One paragraph in that remarkable letter is very important as the first of many similar statements, with the reasons therefor, made by Madison in the Philadelphia Convention, in the Virginia convention which ratified the Constitution and in The Federalist which urged its ratification. Madison was writing his letter within a few short years after the American people had made their famous Statute of 1776. He knew its basic law that every ability in government to interfere with individual freedom must be derived directly by grant from those to be governed. He knew that governments could give to government federal power to prescribe rules of conduct for nations. He also knew that governments could not give to government any power to prescribe rules of personal conduct which interfered with the exercise of individual human freedom. In other words, he knew the existing and limited ability of legislatures to make federal Articles and that such limited legislative ability was not and never could be, in America, competent to make national Articles. He also knew the existing ability of Americans themselves, assembled in their conventions, to make any kind of constitutional Article, whether it were federal or national. He knew that the limited ability had been exercised in making the federal Articles of the existing federation and that the unlimited ability had been exercised, in each existing nation, in making its national Articles.

With this accurate knowledge always present in his mind and repeatedly finding expression by him in the ensuing two years, it is natural that we find in his remarkable letter of 1787, after his summary of what Articles the new Constitution ought to contain and nearly every one of which it does contain, the following significant statement: “To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the legislatures.” From such a logical American, it is expected that we should find accurate echo again and again of this deference to basic American law in such later expressions as his statement in The Federalist, Number 37, “The genius of republican liberty seems to demand ... that all power should be derived from the people.”

Having thus grown well aware of the tremendous part played by Madison in shaping the substance of the Constitution of government under which we Americans live, let us return to the Philadelphia Convention in which he figured so prominently and which worded and proposed the Articles of that Constitution.

In the seven Articles, which were finally worded by that Convention, there are but three which concern themselves at all with the vesting of national power in government. They are the First, the Fifth and the Seventh.

The First Article purports to give, in relation to enumerated matters, all the national power which the Constitution purports anywhere to grant to its only donee of power to make laws interfering with human freedom, the national Legislature or Congress. Indeed, the opening words of that First Article explicitly state that, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Then the remaining sections of that Article go on to enumerate all the powers of that kind, the national powers, which are granted in the Constitution by the donors, the American people or citizens, assembled in their conventions.

If there be any doubt in the mind of any American that the First Article contains the enumeration of all national powers granted by the Constitution, the statements of the Supreme Court, voiced by Marshall, ought to dispel that doubt.

This instrument contains an enumeration of powers expressly granted by the people to their government.... In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized “to make all laws which shall be necessary and proper” for the purpose. (Gibbons v. Ogden, 9 Wheat. 1.)

This “last” of the enumerated powers, as Marshall accurately terms it, is that granted in the last paragraph of Section 8 of the First Article.

It is because the First Article IS the constitution of government of the American citizen that his government has received its tribute as a government of enumerated powers. This fact is clearly explained in the Supreme Court in Kansas v. Colorado, 206 U. S. 46.

Indeed, we need no Marshall to make us fully understand that when human beings constitute a government, the one important thing which they do is to grant government power to interfere, within a limited discretion, with their own individual freedom by issuing commands in restraint of the exercise of that freedom. Anything else that the government is authorized to do is a mere incident of its existence as a government. The power to issue commands interfering with human freedom is the substance and essence of government. That is why all the national powers of any American government are included in whatever ability its legislature has to make valid commands of that kind. The letter which went from the Philadelphia Convention, with the proposed Constitution, accurately expresses this fact in the words, “Individuals entering into society must give up a share of liberty to preserve the rest.” (1 Ell. Deb. 17.) By surrender of some of their liberties is meant their grant of power to make commands or laws interfering with those surrendered liberties. Whenever government is constituted, “the people must cede to it some of their natural rights, in order to vest it with requisite powers.” (Jay, Fed. No. 2.)

We thus know for a certainty that the First Article of our Constitution is the only one which purports to vest in government any national powers.

The Second Article deals entirely with the executive department, the authority of the president and that department to enforce valid laws, the election of the president and vice-president, etc. The Third Article deals with the authority of the judicial department [including authority to declare what laws have been validly passed, etc.] and with the manner of the appointment of the members of that department, etc. The Fourth Article contains miscellaneous declaratory statements of certain things which the citizens of America make the fundamental law of America. The Sixth Article contains other declaratory statements of what is also made the fundamental law of America.

This leaves to be considered only the Fifth and the Seventh Articles. Like the First Article, they relate to the vesting of national power in our American national government; but, unlike the First Article, neither of them purports to grant any such power to any government. They deal with the manner of its grant by the only competent grantors of power of that kind, the “conventions” of the American people, called by that name, “conventions,” in the Fifth and Seventh Articles. As the Seventh Article was intended by those who worded it to accomplish its purpose simultaneously with and by reason of its ratification, and as its purpose was the main object of the Convention which framed all the Articles, we will consider it before the Fifth.

The Seventh is merely the explicit declaratory statement of those whose “expressed authority ... alone could give due validity to the Constitution,” the Americans themselves assembled in their conventions, that when the Americans, assembled in nine of those thirteen conventions, have answered “Yes” to the entire proposed Constitution, the American nation shall instantly exist, all Americans in those former nations where those nine conventions assembled shall instantly be the citizens of the new nation, and all the grants of national power, expressed in the First Article of that Constitution, shall have been validly made as the first important act of that collective citizenship.

We now consider for a moment the Fifth Article, the only remaining one which relates to grant of national power. That Fifth Article does not relate to grant of national power alone. It also relates to grant of federal power. It relates to the future grant of either of those vitally distinct kinds of power. It is further proof of the logical mind of the man who wrote that extraordinary letter of April, 1787, and who largely, in substance, planned the entire system of a constitution of government, both federal and national, which is embodied in our Constitution. Madison and his associates, in The Federalist and in the Philadelphia Convention and in the various ratifying conventions, repeatedly stated their knowledge that the proposed Constitution could not possibly be perfect. With the utmost frankness, they expressed the sane conviction that it would be contrary to all human experience, if it were found perfect in the working out of an entirely new and remarkable dual system of government of a free people by themselves, For this reason, the Fifth Article was worded so as to prescribe a constitutional mode of procedure in which the existing ability of the American citizens to make any kind of Article, whether national or federal, could thereafter be invoked to exercise and be exercised. It was also worded so as to provide a constitutional mode of procedure in which there could be likewise invoked to exercise and be exercised the existing limited ability of the state legislatures to make articles which were not national. As a matter of fact, it was only at the last moment, in the Convention, that Madison and Hamilton, remembering this limited ability of those legislatures, wrote into Article V any mention of it and its future constitutional exercise. As the story of the First, Fifth and Seventh Articles, at Philadelphia in 1787, will be more fully treated hereinafter, we leave them now to continue the brief story of the voluntary and direct action of the Americans themselves, by which they created the nation that is America, became its citizens and, as such, vested its only government with its enumerated national powers.

When the Philadelphia Convention, on September 17, 1787, had completed its voluntary task of wording the proposed Constitution of a nation and its supreme government of enumerated powers, the proposed Constitution was referred to the American people, for their own approval or rejection, assembled in their conventions.

In many respects, the Philadelphia ascertainment of the legal necessity that it must be referred to those people themselves and the Philadelphia decision to that effect, following that ascertainment, constitute the most important and authoritative legal reasoning and decision ever made in America since July 4, 1776. Both reasoning and decision were naturally based upon the fact that the First Article purports to give national powers to Congress to make laws, interfering with the individual freedom of the citizens of America. In the face of that decisive fact, it was impossible for the Americans at Philadelphia, who had worded that proposed Article with its grant of enumerated powers of that kind, to have made any other legal decision than a reference of such an Article to the American people themselves assembled in their conventions, as the only competent grantors of any national power.

The Americans at Philadelphia were human beings of exactly the same type as all of us. They had their human ambitions and differences of opinion and jealousies. They were not supermen any more than we are. They were grappling with tremendous problems along an uncharted way in the comparatively new science of self government by a free people, sparsely settled along the extensive easterly coast of a continent and, at the time, citizens of thirteen distinct and independent nations. Their personal ambitions and differences of opinion and jealousies, for themselves and their respective nations, made the problem, which they set themselves to solve, one almost unparalleled in history. If they had wholly failed in their effort, as men with any other training and dominant purpose in life would certainly have failed, no just historian would ever have attributed such failure to any lack of intelligence or ability or patriotism on their part.

It was, however, their fortune and our own that their training and dominant purpose in life had been unique in history. Among them were men, who only eleven years earlier, at that same Philadelphia, in the name and on behalf of the American people, had enacted the Statute of 1776. As their presiding officer, in their effort of 1787, sat the man who had led the same American people in their successful effort, by the sacrifices of a Valley Forge and the battlefields of the Revolution, to make the declarations of that Statute the basic principle of American law. Prominent in the Convention was Hamilton, who had left college at seventeen to become a trusted lieutenant of the leader in that war which did make that Statute our basic law. Among the delegates were quite a few others who had played similar parts in that same war for that same purpose. Most of the delegates had played some part, entailing personal sacrifice and effort, in that same war and for that same purpose. With such an education in the school whose training men find it impossible to ignore, the school of actual life, it was mentally impossible that this body of men could either forget or ignore or disobey the basic American law, which then commanded them and still commands us, that no government in America can ever have or exercise any valid national power to interfere with human freedom except by direct grant from its citizens themselves. If the education of the leaders of the present generation had been the same, American history of the last five years could have been differently written in a later chapter herein.

Because the Convention was educated to know the Statute of ’76, the proposed grant of enumerated national powers in the First Article was necessarily referred to the only competent grantors, the American people themselves, assembled in their conventions.

Familiar as we are with the result of their effort to solve their great problem, a result told in the history of the ensuing one hundred and thirty-five years in America, it seems fitting here to have Madison describe the closing moment of that Philadelphia Convention, in his own words: “Whilst the last members were signing, Dr. Franklin, looking toward the president’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish, in their art, a rising from a setting sun. ‘I have,’ said he, ‘often and often, in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, and not a setting sun.’” (5 Ell. Deb. 565.)

The story of the actual making of that Constitution by the people of America, assembled in their conventions, is a marvelous story. No American can fully grasp what an American really is unless he personally reads that story, not as told even by the most gifted writer, but as told by the recorded debates in the very conventions themselves of the very Americans who created the nation which is America, made themselves its citizens and, as its citizens, made the only valid grants of enumerated national power, the grants in the First Article. In a later chapter, somewhat of that story will be told, mostly in the very words of those who made those grants. At this point, we are concerned only to set out the hour and the moment when American human beings, as such, in their greatest Revolution, exercised their exclusive ability to give their one government some national power to interfere with individual freedom.

Each of them was already a citizen of one of the existing nations. It was, however, as American human beings, always collectively the possessors of the supreme will in America, and not as citizens of any nation, that they assembled in the conventions and, in the exercise of that supreme will, created a new and one American nation, by becoming its charter members and citizens. That was the first and immediate effect of the signing of that Constitution in the ninth convention of the American people, the convention in New Hampshire, on June 21, 1788. That is the actual day of the birth of the American nation as a political entity. It is the day on which the American citizen, member of the American nation, first existed. While it is true that there yet was no actual government of the new nation, it cannot be denied that legally, from that June 21, 1788, there did exist an American nation, as a political society of human beings, and that its members were the human beings in the former nations of Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire. The very moment the Americans in those nine former nations had signed that Constitution of government, they had constituted themselves a nation and had become its citizens.

Simultaneously therewith, as its citizens, they had made their grant of enumerated national powers to interfere with their own human freedom. Simultaneously therewith, they had destroyed forever the absolute independence of their nine nations; they had kept alive those nations, as partially independent political societies, each to serve certain purposes of its members who still remained citizens of that political society as well as citizens of the new nation; they had taken from the government of each of those nations much of its national power, had given to each such government no new power whatever, but had left with it much of its former national power over its own citizens; they had kept alive the federation of nations, now a federation of partially independent states; they had made their own new national government also the federal government of that continuing federation and their own national Constitution also the federal Constitution of that continued federation; they had subordinated all those nine states and the government of each and of the federation to their own supreme will, as the citizens of the new nation, expressed in its Constitution. This was the meaning of the second section of the Sixth Article in the document, which they had signed, which reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The makers of the new nation are identified by the opening words of the document: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

It would be diverting, were it not somewhat pathetic, to hear that the Constitution was made by the states. From that quoted Preamble alone, volumes might be written to show the absurdity of such thought. It identifies the makers as “people” and not as political entities. It expressly says that its makers, “the people,” ordain it “in order to form a more perfect Union.” The states already had a perfect union of states. But the human beings or “people” of all America had no union of themselves. The only “people” in America, who had no union of themselves, identify themselves unmistakably when they say, “We the people of the United States, in Order to form a more perfect Union, etc.” They are the “people” or human beings of America, the whole people of America, the collective possessors of the supreme will which had enacted the Statute of ’76.

If this fact had been kept clearly in mind by our modern leaders and lawyers, the history of the supposed Eighteenth Amendment would never have been written. When the whole American people assembled in their conventions in their respective geographic states, they did not assemble therein as the citizens of their respective states. It is true that the Americans, who assembled in any particular convention, happened to be citizens of a particular state. But they were also part of the whole American people, whose act as a whole people had freed all the colonies and had permitted the Americans in each colony to constitute a nation for themselves. And, when the Americans in each convention assembled, it was to decide whether that part of the American people, which resided in that state, would agree with the American people residing in other states to become members and citizens of an entirely different society of men and grant to the government of the new society power to interfere with the individual rights of the members of the new society.

How could the “citizens” of an independent nation, in their capacity as such citizens, become “citizens” of an entirely different nation, with an entirely different human membership or citizenry? If the individual members of a large athletic club in the City of New York should assemble in its club house to determine whether they, as individual human beings, should join with the human members of a number of other athletic clubs and create a large golf club, with a large human membership, and become members of that large golf club, would any of them entertain the absurd thought that he was becoming a member of the golf club in his capacity as a member of his existing and smaller athletic club? This is exactly what happened when the American people as a whole assembled in their conventions and decided to become members or citizens of the new and larger political society of men, while still remaining members and citizens of their respective smaller societies of men.

The vital distinction between the citizen of America and the citizen of a state, although oftentimes one is the same human being, is probably known to many of the modern leaders and lawyers who have considered and argued about the supposed Eighteenth Amendment. But it has been wholly ignored in every argument for or against the existence of that Amendment. As a matter of fact, that vital distinction has always been so important a part of our American institutions that it has been the subject-matter of repeated decisions in the Supreme Court. It is a distinction amazingly important, in substance, to individual freedom in America. So true is this that one of the most important Amendments ever made to the federal part of our Constitution was primarily intended to require that every state must extend to the “privileges or immunities of citizens” of America the same respect and protection which the American Constitution had previously only required that each state must extend to the citizens of the other states.

When the conventions made the original constitution, Section 2 of Article IV commanded that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” After the Civil War had closed, it quickly was realized that this federal command of the Constitution did not protect the citizens of America in any state. And so this command was added to the federal part of the Constitution by the Fourteenth Amendment, namely, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens” of America.

It would be idle to repeat here the famous Supreme Court decisions in which that Court has been obliged to dwell upon the important result accomplished by this vital change in the federal part of our Constitution. In such cases as the Slaughter House Cases, 16 Wall. 36, Paul v. Virginia, 8 Wall. 168, Re Kemmler, 136 U.S. 436, U.S. v. Cruikshank, 92 U.S. 542, Blake v. McClung, 172 U.S. 239, Maxwell v. Sow, 176 U.S. 581 and numerous other cases the important decisions have turned entirely upon the vital distinction between a citizen of America and a citizen of a particular state, even though the same man had the two capacities. Each decision turned upon the fact that the protection given to him in one capacity, by some constitutional provision, did not extend to him in the other capacity.

If all this had not been forgotten and ignored during the five years which began in 1917, the story of that five years would have been entirely different. Everyone would have known that the respective attorneys in fact for societies or states could not grant new power to interfere with the individual freedom of the members of an entirely different society, America.

There never was a day at Philadelphia in 1787 when the clear-minded Americans did not remember and realize this vital distinction between Americans, in their capacity as members of their respective existing societies, and Americans, in their capacity as members of the prospective society of the whole American people. There never was a day when they did not realize that the members of the proposed new and supreme society of men would never have but one attorney in fact for any purpose, the government at Washington, while the members of each small and inferior society would still have, as they already had, in their capacity as such members, their own attorney in fact, their own government.

One instance alone is sufficient to show how that Philadelphia Convention never forgot these important things. When the Committee of Detail, on August 6, 1787, reported to the Convention the first draft ever made of our Constitution, the Preamble read: “We, the people of the states of New Hampshire, Massachusetts, etc.” (enumerating all the states), “do ordain, declare, and establish, the following constitution for the government of ourselves and our posterity.” (5 Ell. Deb. 376.) But, so that future generations, like our own, should not ignore the fact that it was not the people of the respective states but the whole people of America who made the Constitution, before the proposal was made from Philadelphia, the Preamble, identifying the makers of the Constitution, was changed to read, “We, the people of the United States,”—the whole people of the new nation, America.

In the Virginia convention, Patrick Henry put the clear fact all in one pithy statement. He made that statement in one of his eloquent arguments against ratification of the Constitution. Many Americans today do not know that Patrick Henry was the most zealous opponent of the proposed Constitution. He was a citizen of the nation of Virginia. His human liberty as an individual could not be interfered with by any government or governments in the world except the Virginia government and only by it, under grant of national power to it from him and his fellow citizens of Virginia. That is exactly the status which he wished to retain for himself and which he insisted was the best security for individual freedom of all Americans in Virginia. “This is an American government, not a Virginia government!” he exclaimed. Nothing could more clearly express his knowledge, the common knowledge of all in that day, that he and his fellow Americans in that convention were being asked as Americans, not as citizens of Virginia, to constitute a new nation of the American people and a national government for that people.

That is why the Tenth Amendment, responsive to the demand of that Virginia convention and other similar conventions of the American people, names the citizens of the respective states as one class of reservees and the citizens of America as the great reservee and “most important factor” in the Tenth Amendment. This is the plain meaning of the language of that Tenth Amendment, to those who know what America is, where that language reads “to the states respectively, or to the people.” The word “respectively” is pointedly present after the word “states” and it is pointedly absent after the word “people.” Nothing could make more clear, to those who do not forget that the citizens of each state were the state itself, that the words “to the states respectively” mean to the respective peoples or citizens of each state and that the words “or to the people” mean to the people or citizens of America, in that capacity.

CHAPTER V
THE CONSENT OF THE GOVERNED

We average Americans have now lived with those earlier Americans through the years in which they were educated to their making of the American nation, to their constitution of its only general government with national powers.

We have been with them in those early days when legally they were subjects, inasmuch as their British Legislature at London had unlimited ability, not delegated by them, to interfere with the individual human freedom of each of them and all of them. We have realized that, in those very early days, despite their legal status, those Americans were actually and in substance citizens of their own respective communities, inasmuch as the legislatures which actually did interfere with such freedom were the legislatures of their own choosing to which they themselves delegated such powers of interference.

We have been with them when their British Government began its attempt to exercise its omnipotent ability. We have seen the inevitable result, the American Revolution, by a people, educated through actual experience in self government, against the attempt of any government to exercise a national power not directly granted by its citizens. We have seen their invincible determination, in an eight year war of sacrifice, that no government in America shall ever have any national power except by direct grant from its citizens. We have seen them, in their Statute of ’76—never repealed—declare this principle to be the basic law of America.

We have been with them when the Americans in each former colony constituted for themselves a government and gave it limited ability to interfere with their individual freedom. Living with them at that time, we have realized how accurately they then grasped the vital fact that the granting of such national ability is the constitution of government and that no people ever are free or self-governing unless every grant of that kind is made directly by the citizens of the nation themselves.

We have realized that, in constituting their respective national governments, the citizens of each of those nations withheld from its government many possible national powers, such, for example, as those mentioned in the various Bills of Rights or Declarations of human liberty in the different written constitutions of those nations. We have realized—a vital legal fact never to be forgotten—how accurately those Americans and their governments knew that not all of those sovereign legislatures of those independent nations could, even together, exercise or grant a single one of those possible national powers reserved by the people to themselves. We have also realized—again a legal fact which should have sunk deep into our souls—that the very national powers, which the citizens of each of those nations had granted to its legislative government, were to be exercised only by that legislative government and could not be delegated by it to any other government or governments. “The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.)

We have lived with those Americans in those Revolutionary days when the legislative governments of their thirteen nations created “a distinct and independent sovereignty” to govern a federal union of those nations but not to govern, by the exercise of national powers, the human beings who were the American people. We have seen those legislative governments then aware of their existing ability, each as the representative or attorney in fact of its own nation for all federal purposes, to vest federal powers in a federal government. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent.” (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.) But those legislative governments knew that they could not delegate to any government even those limited national powers “delegated to the state sovereignties” by their respective citizens. “The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” (Marshall, supra.) As to the national powers not delegated but reserved by the people to themselves, the legislative governments of that day (as well as the American people) knew what the Supreme Court still knew in 1907 as to national powers similarly withheld from the later national government of America:

The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them. (Justice Brewer in Turner v. Williams, 194 U. S. 279.)

We have been with those Americans in the few short years in which they learned that the maximum of protected enjoyment of individual freedom could never be obtained through a general government possessing naught but federal powers, the only kind of power which any American government can ever obtain through grants made by governments or, in any way, except by direct grant from its citizens themselves.

We have been with those Americans through the greatest Revolution of all, when their leaders and the average Americans themselves, still determined to obtain that maximum protected enjoyment of individual human liberty and awake to the knowledge that it could not be obtained through a general government with naught but federal powers, rose again to the great occasion. We have been with them when, outside of all then existing constitutions and outside of all written American law except the Statute of ’76, those Americans, at the suggestion of their American leaders, made themselves the members of one great political society of human beings, the nation which is America. We have been with them when they gave the government of America, by direct grant from themselves, such enumerated national powers to command them, the citizens of America, as they—not the state governments—deemed wise and necessary to protect their human liberty against all oppressors, including all governments. We have been with them—and we have marveled—while they themselves actually made, by their own action, their amazingly effective distribution of all delegated powers to interfere with individual freedom.

We have seen that they gave to the new government, the only government of the citizens of America, naught but enumerated national powers, with the ability to make all laws necessary for the proper execution of those enumerated powers, and reserved to themselves alone—not to any government or governments in the world—all other possible national powers over the self-governing people, the citizens of America.

We have seen how they, the citizens of America, the possessors of the supreme will in America, then ended the complete independence of each of the thirteen nations but reserved to the citizens of each nation much of their former ability to exercise their own national powers of government over themselves, through their own delegation of such power to their only attorney in fact for such purpose, their own legislature.

We have seen those American citizens, while destroying the complete independence of those former nations, incorporate the former federation of states into their own system of a society or nation of all the human beings of America. We have seen them, in the constitution of their own national government, make it also the federal government of that federation and leave with it such federal powers as they themselves deemed wise. We know, therefore, as they knew in 1790 when their great distribution of power had become effective, that no legislature in America could exercise a national power not granted by its own citizens, and that no legislature or legislatures in America could give any national power to any government.

We average American citizens of this present generation must now feel qualified to understand the Constitution and its settled distribution of all national powers to interfere with individual freedom. If these Americans could use their knowledge intelligently to make that amazing Constitution to protect our human liberty and their own, it cannot be beyond us, now also taught by their experience, to understand the protection which that Constitution gave to them and gives to us against even the usurpation of our own governments. Only by that understanding may we hope to keep that legacy of protection. No longer, now that we have acquired that understanding, can we make the great mistake of believing that the public leaders or lawyers of this generation are qualified to teach us anything about that protection.

The experience of our leaders and lawyers has given them an entirely different education, in the science of government, than was the education of these earlier average Americans and their leaders, than is our own education in having lived over again the days in which all valid grants of national power in constitutions of American government were made by the people themselves because people and governments alike knew that such grants could never be made by governments. The experience of public leaders and lawyers in America, for the past thirty years, has been almost exclusively concerned with property and with law and Constitutions in relation to property.

In the Supreme Court, in the Slaughter House Cases, 16 Wall. 36 at page 116, Justice Bradley points out that the Declaration of Independence was the first political act of the American people in their independent sovereign capacity and that therein they laid the foundation of national existence on the basic principle that men are created with equal and inalienable rights to “life, liberty and the pursuit of happiness.” He then goes on to state that “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property.” We thus realize that the education of the Americans, who made all our constitutions, trained them to make Articles of government which would secure protected enjoyment of these three human rights. And we have learned that to those Americans, life and liberty came before property in importance.

On the other hand, the leaders and lawyers of the present generation have been educated to think that property is the one important right which constitutions are made to protect. Wherefore it would be extraordinary if any of them knew that the American people constituted all their governments, and made their distribution of national powers among those governments and reserved to themselves many national powers, all for the main purpose of securing individual life and liberty, and then, the enjoyment of property. That these leaders and lawyers, so educated by experience, have not known these things or understood at all the constitutional Articles, an accurate understanding of whose meaning depends upon a knowledge which their education has withheld from them, the story of the last five years amply demonstrates. In its detail, that story and that demonstration will be later dwelt upon herein.

Fortunately, we average Americans of this generation have not received any wrong education in the relative importance of human life and liberty to property in the eyes of the American people who constituted all governments in America, and in the constitutions which those people made to secure all three human rights against even the usurpations of delegated power by the very governments which those constitutions created. Our wrong education in that respect has undoubtedly been attempted. The events of the last five years, however, while demonstrating the thoroughly wrong education of our leaders, have also shown that the average Americans still sense something extraordinary about governments exercising undelegated power over citizens of which they are not the governments and about governments claiming ability to give to themselves and to other governments undelegated national powers to interfere with individual human freedom. It has been entirely the result of the wrong education of our leaders and “constitutional” lawyers that we have not been told the legal fact that, and the constitutional reason why, these extraordinary performances on the part of governments in America have been just as void as they are extraordinary.

Now that we have turned from the unsound teaching of those wrongly educated leaders and lawyers and have educated ourselves by living with the earlier Americans through their making of all our constitutions of government, we are ready to approach, with clear and understanding minds, a brief consideration of the great Constitution proposed at Philadelphia and made by the citizens of America. Only by such brief but accurate consideration can we ever realize the distribution of delegated national powers between a supreme government—legislating for all American citizens—and lesser governments, each legislating only for its own citizens and without any power to legislate for American citizens. Only by such consideration can we realize the importance to us of the legal fact that the citizens of America, when making that distribution of granted national powers, reserved to themselves alone all other national powers to legislate for American citizens except those national powers granted and enumerated in Article I of our Constitution to the only national government of the citizens of America.

CHAPTER VI
THE CONVENTIONS GIVE THE CONSENT

The proposal which came from Philadelphia in 1787 was absolutely without precedent in history. Simply stated it was that, outside of all written law save the Statute of ’76, the entire American people, who were not one nation or its citizens, should make themselves one nation and the supreme nation in America; that, simultaneously with the birth of this new nation, they should destroy the complete independence of each existing society or nation, in some one of which each American was a member or citizen, but keep alive each such society or former nation, subject to the supreme will of the citizens of the new nation; that they should keep alive the federation of those old nations also subject to the supreme will of the citizens of the new nation; that they should leave with each former nation (now to be a subordinate state) and to its citizens much of its own and their own national power to govern themselves on many matters without interference from any government or governments outside of that state; that they should leave with those continuing states and their governments their existing and limited ability to give federal power to government by making federal Articles in the Constitution of federal government; that they should, as the citizens of America, give to no state or states or their respective governments any new power of any kind, leaving to the citizens of each state to determine (within the limits fixed by the Constitution of the American citizens) how much power its own national government should have to interfere with the individual freedom of its own citizens; that—most unique and marvelous conception of all—these citizens of America, simultaneously with the birth of the new nation and in their capacity as its citizens, should grant to its government, the only government of those citizens of America, definite and enumerated national powers to interfere with their individual freedom; and that—probably the most important and the least remembered feature of the whole proposal—all other possible national powers over themselves, as citizens of America, should be reserved exclusively to themselves and be exercised or granted by them alone, “in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention.” (Marshall, in the Supreme Court, M’Culloch v. Maryland, 4 Wheat. 316.)

We have not forgotten that these Americans, to whom that proposal was made, did act upon it in that only effective way, by assembling in their conventions.

To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.)

In view of the startling fact that our leaders and “constitutional” lawyers have neither felt nor acknowledged the necessity that new national powers of that government, new powers to interfere directly with the individual freedom of its citizens, must be derived “directly” from those citizens, in the only effective way in which they can act, on such a subject, by assembling in their conventions, it is the duty of ourselves, the average American citizens of this generation, to insist that they learn this legal fact. When they shall have learned what all Americans once knew, the freedom of the American individual will be as secure as it was in 1790. No legislature, no matter whence comes a suggestion to the contrary, will dare to issue any command except to its own citizens, and only to them in matters on which those citizens have granted power to that legislature to command them.

That we may intelligently so insist, and that our insistence may be made in the proper place and at the proper time, let us briefly consider on what subjects, in the making of our Constitution, our predecessors, as American citizens, granted their enumerated national powers to our only government of all Americans. Like those predecessors, assembled in their conventions, we find all those enumerated powers in the First Article of the Constitution proposed from Philadelphia.

In substance they are the war power; the power of making treaties; the power of regulating commerce between ourselves and all people outside of America and between the citizens of the different states; the power of taxation; and all other incidental and supplementary powers necessary to make laws in the execution of these enumerated and granted powers.

Noticeably absent from these enumerated powers granted to the only general government of the citizens of America is that power, then existing and still in the national government of each nation or state, known (rather inaccurately) as the police power or the power to pass any law, in restraint of individual human freedom, reasonably designed, in the judgment of that particular legislature, to promote the general welfare of its own citizens. It seems hardly necessary, at this moment, to refer to the innumerable decisions of the Supreme Court that such power was not among those enumerated and granted to the American government by its citizens. It was solely because such power had definitely not been granted by them to it that the government of the American citizens made its famous proposal that a portion of such power, in relation to one subject, be granted to it in the supposed Eighteenth Amendment of our Constitution.

As a matter of fact, the police power of any government is really all its power to pass any laws which interfere with the exercise of individual freedom. In that respect, the American people made a marked distinction between the quantum of that kind of power which they granted to their one general national government and the quantum they left in the national government of the citizens of each state. The quantum they granted to their own government was definitely enumerated in the First Article. On the other hand, except for the limitations which they themselves imposed upon the respective governments of each state, they left the citizens of each state to determine what quantum the government of that state should have.

In other words, the police power of the American Congress is strictly limited to the enumerated powers of that kind granted by the citizens of America. And, although the fact does not seem to be generally known, it is because the First Article vests in the sole Legislature of the whole American people nothing but enumerated powers to interfere with the freedom of the individual American that our American government has received its universal tribute as a government of nothing but enumerated powers over a free people, who are its citizens.

In the Constitution are provisions in separate Articles for the three great departments of government,—legislative, executive, and judicial. But there is this significant difference in the grants of powers to these departments: the First Article, treating of legislative powers, does not make a general grant of legislative power. It reads: “Article one, section one. All legislative powers herein granted shall be vested in a Congress,” etc.; and then, in Article 8, mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers. (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206 U. S. 46.)

Among the national powers, which are enumerated in the First Article, there is one which (whenever operative) approximates the extensive police power of a state government to interfere with the freedom of its citizens. That is the war power of the Government of America. As the purpose of the Constitution of the American Government is to protect the freedom of the American and as such freedom needs effective protection from foreign attack, the Americans of that earlier generation made the war power of their government almost as unlimited as that of a despotic government. All history and their own human experience had taught them that the war power, if it was to be effective for their protection, must be practically unlimited. If we grasp this extent of the American war power, we realize why our sole American government, without the grant of a new national power to it, could validly enact what we know as the War Time Prohibition Statute, although without such a new grant, it was powerless to enact what we know as the Volstead Act or National Prohibition for time of peace. It is because the citizens of each state, in their Constitution of their national government, had given to it a general (although specifically limited) ability to interfere with their own human freedom in most matters, that each state government could validly make prohibition laws for its own citizens. It is because the American citizens had not given to their government any such general ability to interfere with their freedom, that the American Government, for any time except that of war, could not validly enact National Prohibition for the American people without a new grant of a new national power directly from its own citizens. In the days of those earlier Americans, the legal necessity of deriving such power directly from the American citizens themselves was “felt and acknowledged by all.” In our day, among our leaders and our “constitutional” lawyers, there was none so humble as to know or honor this basic legal necessity.

The other enumerated national powers, which American citizens ever gave their national government, are few in number, although they vested a vast and necessary ability in that government to protect the freedom of its citizens and promote their happiness and welfare by laws in certain matters. For our present purpose, they need only be mentioned. They require no present explanation. They are the power to make all treaties with foreign nations or governments; the power to regulate commerce, except the commerce within any one particular state; and the power of taxation.

Having now some accurate conception of the limited and specific quantum of national power which American citizens consented to grant in those earlier days, it is pertinent to our inquiry, as to whether we (their posterity) have again become subjects, to dwell briefly upon the reluctance with which they made even those grants. In considering that attitude, it is essential always to keep in mind the status of the citizens of each state, at that time, and their relation to their own national government and the relation of each state to the federal government of all the states. Under the existing system of governments, the citizens of each state were subject to no valid interference whatever with their own individual freedom except by laws of a legislature, every member of which they themselves elected and to which they themselves granted every power of such interference which that legislature could validly exercise. To those free men in those free states, men educated in the knowledge of what is real republican self-government, these two facts meant the utmost security of their human rights. No government or governments in the world, except their own one state government could interfere at all directly with those rights, and they had given to, and they could take from, that government any power of that kind. As for the respective states and the relation of each to the federal government of all, each state had an equal voice in the giving to or taking from that government any federal power and each had an equal voice, in the federal legislature, in exercising each valid federal power. These existing facts, respectively of vast importance to the citizens of each state and to its government, influenced, more than any other facts, the framing of the new Articles, particularly the First Article, at Philadelphia and the opposition to those Articles in the conventions in which the people of America assembled.

The First Article, as we know it, starts with the explicit statement that all national powers, which are granted by Americans in that Constitution, are granted to the only American legislature, Congress. It then provides how the members of each of the two bodies in that legislature shall be elected. It then enumerates the granted powers, confining them to specific subjects of interference with the human freedom of the American citizen. It then, for the particular security of that human freedom, imposes specific restraints upon that legislature even in the exercise of its granted national powers. Finally, it prohibits the further exercise of specific powers by any state government.

No American, who reads the debates of the Philadelphia Convention of 1787, can fail to realize that the grant of any national power,—power to interfere with human freedom—is the constitution of government. The First Article was the subject of almost all the discussion of those four months at Philadelphia. Seemingly invincible differences of desire and opinion, as to who should elect and the proportion (for citizens of the new nation and for states of the continuing federation) in which there should be elected the members of the legislature which was to exercise the granted national powers, almost ended the effort of that Convention. This was in the early part of July. For exhausting days patriotic men had struggled to reconcile the conflict of desire and opinion in that respect. One element, mainly from the larger states, insisted that the members (from each state) of both branches of the new legislature should be proportioned to the number of Americans in that state. The other element, mainly from the smaller states, insisted that the Americans in each state should have an equal representation in each branch of the new legislature. Each element was further divided as to who should choose the members of that legislature. Some held that the people should choose every member. Others held that the state legislatures should choose every member. Still others held that each state should, by its legislature, choose the members of one branch, so that those members might speak for that state, and that the American people themselves, divided into districts, should choose the members of the other branch, so that those members might speak for the general citizens of America.

Mason of Virginia, later one of the great opponents of the adoption of all the Articles, insisted that election by the people was “the only security for the rights of the people.” (5 Ell. Deb. 223.)

Madison “considered an election of one branch, at least of the legislature by the people immediately, as a clear principle of free government.” (5 Ell. Deb. 161.)

Wilson of Pennsylvania “wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority.” (5 Ell. Deb. 160.) Later he said, “If we are to establish a national government, that government ought to flow from the people at large. If one branch of it should be chosen by the legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them.” (5 Ell. Deb. 167.)

Dickenson of Delaware “considered it essential that one branch of the legislature should be drawn immediately from the people, and expedient that the other should be chosen by the legislatures of the states.” (5 Ell. Deb. 163.)

Gerry of Massachusetts, consistent Tory in his mental attitude toward the relation of government to people, insisted that “the commercial and moneyed interest would be more secure in the hands of the state legislatures than of the people at large. The former have more sense of character, and will be restrained by that from injustice.” (5 Ell. Deb. 169.)

On June 25, Wilson, at some length, opposed the election of senators by the state legislatures. He stated that: “He was opposed to an election by state legislatures. In explaining his reasons, 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.... The general government is not an assemblage of states, but of individuals, for certain political purposes. It is not meant for the states, but for the individuals composing them; the individuals, therefore, not the states, ought to be represented in it.” (5 Ell. Deb. 239.)

There came a day, early in that memorable July, when all hope of continuing the Convention was almost abandoned, by reason of the difference of desire and opinion on this one subject. Let us average Americans of this generation remember that this one subject was merely the decision whether the people were to choose all the members of the legislature which was to exercise granted national powers to interfere with the human freedom of the citizens of America. Happily for all of us, there were many patriotic as well as able leaders at Philadelphia. From their patriotism and ability they evolved the compromise, on that question, which is expressed in their First Article. When it came from Philadelphia, it provided that each state should have equal representation in the Senate, senators to be chosen by the state legislatures, and that the House of Representatives should consist of members chosen directly by the citizens of America, in districts proportioned to the number of those citizens in it.

No one has read the recorded debates of the Convention which proposed and the conventions which adopted our Constitution without learning that the Americans in those conventions knew that the grant of enumerated national powers in the First Article WAS the constitution of the American government of men. In and out of the Philadelphia Convention, the greatest and most persistent attack upon its proposal was the insistent claim that it had acted wholly without authority in proposing an Article which purported to grant any such national power to interfere with the human freedom of all Americans. Since July 4, 1776, no legislature or legislatures in the world had possessed any national powers over all Americans. The Americans in each existing nation elected every member of the one legislature which had any such power over them. It was felt and stated at Philadelphia, it was felt and urged and insisted upon, sometimes with decency and reason, sometimes with bitterness and rancor and hatred, between the closing day at Philadelphia and the assembling of various Americans in each state, that the Americans in each state would be unwilling to give any such national power over themselves to any legislature whose members were not all elected by the people in that state. In all the conventions which adopted the Constitution, the one great object of attack was the grant even of enumerated powers of a national kind to a legislature whose members would not all be chosen by the Americans in the state in which the convention was held. The record of the Virginia convention fills one entire volume of Elliot’s Debates. Almost one-half of the pages of that volume are claimed by the eloquent attacks of Patrick Henry upon those grants of enumerated powers in that First Article. The basis of all his argument was the fact that this grant of national power in the First Article would make him and all his fellow Virginians, for the first time since the Declaration of Independence, citizens of a nation—not Virginia—who must obey the laws of a legislature only some of whose members Virginians would elect.

“Suppose,” he says, “the people of Virginia should wish to alter” this new government which governs them. “Can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States. The founders of your own Constitution made your government changeable: but the power of changing it is gone from you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold those rights have right and power to keep them. It is not the particular government of Virginia: one of the leading features of that government is, that a majority can alter it, when necessary for the public good. This government is not a Virginian, but an American government.” (3 Ell. Deb. 55.)

How forceful and effective was this objection, we average Americans of this generation may well realize when we know that the Constitution was ratified in Virginia by the scant majority of ten votes. In New York and Massachusetts and other states, the adoption was secured by similar small majorities. In North Carolina, the first convention refused to adopt at all.

Furthermore, it is recorded history that, in Massachusetts, in Virginia, in New York, and elsewhere, the vote of the people would have been against the adoption of the Constitution, if a promise had not been made to them by the advocates of the Constitution. It was the historic promise that Congress, under the mode of procedure prescribed in Article V, would propose new declaratory Articles, suggested by the various conventions and specifically securing certain reserved rights and powers of all Americans from all ability of government to interfere therewith. This historic promise was fulfilled, when the first Congress of the new nation proposed the suggested declaratory Articles and ten of them were adopted. These are the Articles now known as the first ten Amendments. It has been settled beyond dispute, in the Supreme Court, that every one of the declarations in these ten Articles was already in the Constitution when it was originally adopted by the citizens of America.

The most important declaration in those amazingly important ten declarations, which secured the adoption of our Constitution, is the plain statement that every national power to interfere with the human freedom of Americans, not granted in Article I, was reserved to the American people themselves in their capacity as the citizens of America. That is the explicit statement of what we know as the Tenth Amendment. In itself, that statement was but the plain and accurate echo of what was stated by the American people (who made the enumerated grants of such powers in Article I) in the conventions where they made those grants. Their statement was nowhere more accurately expressed, in that respect, than in the resolution of the Virginia Convention, which ratified the Constitution. That resolution began, “Whereas the powers granted under the proposed constitution are the gift of the PEOPLE, and every power NOT GRANTED thereby remains with THEM, and at THEIR will, etc.” (3 Ell. Deb. 653.)

After the same statement had been expressly made (with authoritative effect as part of the original Constitution) in that Article which we know as the Tenth Amendment, it was again and again echoed, in the plainest language, from the Bench of the Supreme Court.

As far back as 1795, in the case of Vanhorne’s Lessee vs. Dorrance, 2 Dall. 304, Justice Patterson stated that the Constitution of England is at the mercy of Parliament, but “in America, the case is widely different.”... A Constitution “is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand.... The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move.... Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature, repugnant to the Constitution, is absolutely void.”

To us average Americans, who have lived with those earlier Americans through the days in which they constituted their nation and distributed all granted national powers between governments in America and reserved all other general American national powers exclusively to themselves, the Virginia Resolution, the Tenth Amendment, and the quoted language of the Circuit Court are in strict conformity with the education we have received.

What, however, are we to think of the Tory education of so many of our leaders and “constitutional” lawyers, who have calmly accepted and acted upon the amazing assumption that state governments in America can exercise and can grant to other governments any or all general national powers to interfere with the human freedom of American citizens, including even the national powers expressly reserved by those citizens to themselves in the Tenth Amendment?

If they adopt their familiar mental attitude that all these statements were made more than a hundred years ago and have no meaning or weight now, we refer them to the Supreme Court, in 1907, when it stated:

The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to THE PEOPLE and can be exercised only by THEM, or UPON FURTHER grant from them. (Justice Brewer in Turner v. Williams, 194, U. S. 279.)

For ourselves, we average Americans turn now to examine in detail how clearly the Americans at Philadelphia in 1787 did know and obey the basic law of America that all national powers to interfere with individual freedom are the powers of the people themselves and can be exercised only by them or upon direct grant from them. We find their knowledge, in that respect, evidenced by an examination of the reasoning by which they reached the correct legal conclusion that their proposed grants of general national powers, in their First Article, could only be made by the citizens of America themselves, assembled in their “conventions”—that grants of such powers could not be made even by all the legislatures of the then independent states.

CHAPTER VII
PEOPLE OR GOVERNMENT?—CONVENTIONS OR LEGISLATURES?

It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of states. (Justice Brewer, in Supreme Court, Kansas v. Colorado, 206 U. S. 46 at page 80.)

Instructed by living through the education of the earlier Americans to their making of that Constitution, we accurately know that they themselves, by their own direct action, brought that new nation into being. Through our course in their education, we have their knowledge that only the men, who are to be its first members, can create a new political society of men, which is exactly what any American nation is. “Individuals entering into society must give up a share of liberty to preserve the rest.” So said the letter which went from Philadelphia with the proposed Articles whose later adoption created the new nation and vested the delegated and enumerated national powers of its government to interfere with the liberty of its citizens, (1 Ell. Deb. 17.)

Furthermore, through our own personal experience, we understand how all societies of men are brought into being. There are few of us who have not participated in the creation of at least one society of men. Most of us have personally participated in the creation of many such societies. For which reason, we are quite well acquainted with the manner in which all societies of men are brought into being. We know that ourselves, the prospective members of the proposed society, assemble and organize it and become its first members and constitute the powers of its government to command us, its members, for the achievement of the purpose for which we create it.

For one simple reason, the Americans, through whose education we have just lived, were “better acquainted with the science of government than any other people in the world.” That reason was their accurate knowledge that a free nation, like any other society of individuals, can be created only in the same manner and by its prospective members and that the gift of any national powers to its government can only be by direct grant from its human members. This is the surrender “of a share of their liberty, to preserve the rest.”

The knowledge of those Americans is now our knowledge. For which reason, we know that they themselves created that new nation and immediately became its citizens and, as such, gave to its government all the valid and enumerated national powers of that government to interfere with their and our human freedom. We know that they did all these things, by their own direct action, “in the only manner, in which they can act safely, effectively or wisely, on such a subject, by assembling in conventions.”

Thus, whatever may have been the lack of knowledge on the part of our leaders and “constitutional” lawyers for the last five years, we ourselves know, with knowledge that is a certainty, that the ratifying conventions of 1787 and 1788 WERE the American people themselves or the citizens of the new nation, America, assembled in their respective states.

Our Supreme Court has always had the same knowledge and acted upon it.

The Constitution of the United States was ordained and established, not by the states in their sovereign capacities [the respective peoples or citizens of each State] but emphatically, as the preamble of the Constitution declares, by “the people of the United States” [namely the one people of America].... It was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority.... The people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact [between the citizens or members of the new nation], to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. (Supreme Court, Martin v. Hunter’s Lessee, 1 Wheat. 304, at p. 324.)

Instructed by experience, the American people, in the conventions of their respective states, adopted the present Constitution.... The people made the Constitution and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivisions of them. (Marshall, in Supreme Court, Cohens v. Virginia, 6 Wheat. 264.)

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. (Marshall, in Supreme Court, Barron v. Mayor of Baltimore, 7 Peters, 243.)

When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states. These powers proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. (Marshall, in the Supreme Court, Sturges v. Crowninshield, 4 Wheat. 122.)

We average Americans know and will remember the clear distinction, the substantial distinction, recognized by the great jurist, between “the people of America” and “the people of the several states,” although they happen to be the same human beings acting in different capacities, as members of different political societies of men. It is a matter of constant mention in the Supreme Court that we ourselves, in addition to our capacity as human beings, have two other distinct capacities, that of citizen of America and that of citizen of our respective state; that, as citizens of America, we alone validly give to its government any power to command us, and, as citizens of our particular state, we alone validly give to its government all its national power to command us. The decisions of the Supreme Court, in that respect, are mentioned elsewhere herein. Meanwhile, we average Americans understand these matters perfectly and will not forget them. We are quite accustomed, while retaining our status as free human beings, to be members of many different societies of men and, as the members of some particular society, to give to its government certain powers to interfere with our freedom.

We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other.... Experience made the fact known to the people of the United States that they required a national government for national purposes.... For this reason, the people of the United States ... ordained and established the government of the United States, and defined its powers by a Constitution, which they adopted as its fundamental law, and made its rules of action. The government thus established and defined is to some extent a government of the states in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the states; but beyond, it has no existence. It was erected for special purposes and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view.... The people of the United States resident within any state are subject to two governments, one state, and the other national; but there need be no conflict between the two. Powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. (Justice Waite, in Supreme Court, United States v. Cruikshank, 92 U. S. 542.)

It must seem remarkable to us average Americans, with the education we have acquired at this point, to realize that our leaders and “constitutional” lawyers have not known why only we ourselves, in our capacity as citizens of America, can give any new national power to interfere with our freedom and that we, for such new giving, must act, in the only way in which the citizens of America “can act safely, EFFECTIVELY, or wisely, on such a subject, by assembling in convention,” in our respective states, the very “conventions” mentioned for valid grant of such national power in the Fifth Article of the Constitution made by the citizens of America, so assembled in such “conventions.” Before dwelling briefly upon the accurate appreciation of that legal fact displayed by those first citizens in everything connected with the making of that Constitution and that Fifth Article, let us realize how well the leaders and great constitutional lawyers of other American generations between that day and our own did know this settled legal fact.

After the Americans in nine states had created the new nation and had become its citizens and had (in that capacity) granted the national powers of its First Article, the Americans in Virginia assembled to determine whether they also would become citizens of the new nation. As the president of the convention, in which they assembled, they chose Edmund Pendleton, then Chancellor of Virginia.

Very early in the debates, Henry and Mason, great opponents of the Constitution, attacked it on the ground that its Preamble showed that it was to be made by the people of America and not by the states, each of which was then an independent people. Henry and Mason wanted those peoples to remain independent. They wanted no new nation but a continuance of a mere union of independent nations. They knew that a constitution of government ordained and established by the one people of America, assembled in their respective “conventions,” as the Preamble of this Constitution showed it to be, created an American nation and made the ratifying Americans, in each state, the citizens of that new nation. For this reason, the opening thunder of Henry’s eloquence was on that Preamble. “My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” (Henry, 3 Ell. Deb. 22.)

The learned Pendleton, sound in his knowledge of basic American law and quick to grasp the plain meaning of the Fifth Article of the new Constitution, quickly answered Henry. “Where is the cause of alarm? We, the people, possessing all power, form a government, such as we think will secure happiness; and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it for motives of self-interest. What then?... Who shall dare to resist the people? No, we will assemble in convention; wholly recall our delegated powers or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.... But an objection is made to the form; the expression, We, the people, is thought improper. Permit me to ask the gentlemen who made this objection, WHO BUT THE PEOPLE CAN DELEGATE POWERS? Who but the people have the right to form government?... What have the state governments to do with it?” (3 Ell. Deb. 37.)

We average Americans know and will remember that this learned American lawyer, only twelve years earlier a subject of an omnipotent legislature, already knew the basic American principle to be that the delegation of national power was the constitution of government of a free people and that only the people, assembled in convention, could delegate such power and that the state governments, under basic American law, never can have the ability to delegate that kind of power. We regret that our “constitutional” lawyers, all born free citizens of a free republic, have not the same accurate knowledge of basic American law.

But the knowledge of Henry and of Pendleton, that the document under consideration was the Constitution of a nation whose citizens alone could give to its government any valid power to interfere with their human freedom, was the knowledge of all in that and the other “conventions,” in which the one people of America assembled and adopted that Constitution. Let us note another distinct type in that Virginia convention, the famous Light-horse Harry Lee of the Revolution. “Descended from one of the oldest and most honorable families in the colony, a graduate of Princeton College, one of the most daring, picturesque, and attractive officers of the Revolution, in which by sheer gallantry and military genius he had become commander of a famous cavalry command, the gallant Lee was a perfect contrast to the venerable Pendleton.” (Beveridge, Life of Marshall, Vol. I, page 387.) Lee also replied to Henry’s attack on the expression “We, the people” and not “We, the states.” In his reply, there was shown the same accurate knowledge of basic American law. “This expression was introduced into that paper with great propriety. This system is submitted to the people for their consideration, because on them it is to operate, if adopted. It is not binding on the people until it becomes their act.” (3 Ell. Deb. 42.)

In the Massachusetts convention, General William Heath, another soldier of the Revolution, showed his accurate conception of the legal fact of which we average Americans have just been reading in the decisions of our Supreme Court. “Mr. President, I consider myself not as an inhabitant of Massachusetts, but as a citizen of the United States.” (2 Ell. Deb. 12.)

In the North Carolina convention, William Goudy seems to have had some prophetic vision of our own immediate day. Speaking of the document under discussion and clearly having in mind its First Article, this is the warning he gave us: “Its intent is a concession of power, on the part of the people, to their rulers. We know that private interest governs mankind generally. Power belongs originally to the people; but if rulers [all governments] be not well guarded, that power may be usurped from them. People ought to be cautious in giving away power.... Power is generally taken from the people by imposing on their understanding, or by fetters.” (4 Ell. Deb. 10.)

In that same North Carolina convention, James Iredell, later a distinguished judge of our Supreme Court, in replying to the common attack that the Constitution contained no Bill of Rights, displayed clearly the general accurate knowledge that, in America, any grant of national power to interfere with human freedom is the constitution of government and that the citizens of any nation in America are not citizens but subjects, if even a single power of that kind is exercised by government without its grant directly from the citizens themselves, assembled in their conventions. “Of what use, therefore, can a Bill of Rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all that they do not? It is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given.” (4 Ell. Deb. 148.)

When we average Americans read the debates of those human beings, the first citizens of America, one thing steadily amazes us, as we contrast it with all that we have heard during the past five years. Some of those first citizens were distinguished lawyers or statesmen, quite well known to history. Some of them bore names, then distinguished but now forgotten. Most of them, even at that time, were quite unknown outside of the immediate districts whence they came. All of them, twelve years earlier, had been “subjects” in an empire whose fundamental law was and is that its legislative government can exercise any power whatever to interfere with human freedom and can delegate any such power to other governments in that empire. The object of the American Revolution was to change that fundamental law, embodying the Tory concept of the proper relation of government to human being, into the basic law of America, embodying the American concept of that relation declared in the great Statute of ’76, that no government can have any power of that kind except by direct grant from its own citizens. During that Revolution, human beings in America, in conformity with their respective beliefs in the Tory or the American concept of the relation of human being to government, had been divided into what history knows as the Tories and the Americans. Many of the human beings, assembled in those conventions of ten or twelve years later, had been sincere Tories in the days of the Revolution.

Yet, if we average Americans pick up any volume of their recorded debates in those “conventions,” we cannot scan a few pages anywhere without finding the clearest recognition, in the minds of all, that the American concept had become the basic American law, that the Tory concept had disappeared forever from America. All of them knew that, so long as the Statute of ’76 is not repealed and the result of the Revolution not reversed, no legislatures in America can exercise any power to interfere with human freedom, except powers obtained by direct grant from the human beings over whom they are to be exercised, and that no legislatures can give to themselves or to another legislature any such power. It was common in those “conventions” of long ago to illustrate some argument by reference to this admitted legal fact and the difference between the fundamental law of Great Britain and of America, in these respects. In that North Carolina convention, the same Iredell, after pointing out that the American concept of the relation of citizen to all governments had become basic American law, contrasts that fact with the fundamental law of Great Britain where “Magna Charta itself is no constitution, but a solemn instrument ascertaining certain rights of individuals, by the legislature for the time being; and every article of which the legislature may at any time alter.” (4 Ell. Deb. 148.)

In the Pennsylvania convention, on December I, 1787, one of the most distinguished lawyers of that generation made a memorable speech, expressing the universal knowledge that the American concept had taken forever the place of the Tory concept in fundamental American law. We commend a careful study of that speech to those of our public leaders and “constitutional” lawyers, who for five years have been acting on the assumption that the Tory concept has again become our fundamental American law. We average Americans, after living with those earlier Americans, are not surprised to listen to the statements of Wilson. “The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power.... Upon what principle is it contended that the sovereign power resides in the state governments?... The proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone.... When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?” (2 Ell. Deb. 443.)

We average Americans, legally bound (as American citizens) by no command (interfering with our human freedom) except from our only legislature at Washington and then only in those matters in which we ourselves, the citizens of America, have directly given it power to command us, now intend insistently to ask all our governments, the supreme one at Washington and the subordinate ones in the states of which we are also citizens, exactly the same question which Wilson asked.

Daniel Webster asked almost exactly the same question of Hayne and history does not record any answer deemed satisfactory by the American people. Webster believed implicitly in the concept of American law stated by those who made our Constitution. Like them, and unlike our “constitutional” lawyers, he knew that the Tory concept of the relation of men to their government had disappeared from American basic law.

“This leads us to inquire into the origin of this government, and the source of its power. Whose agent is it? Is it the creature of the state legislatures, or the creature of the people?... It is, sir, the people’s constitution, the people’s government—made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. The states are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the state legislatures, as political bodies, however sovereign, are yet not sovereign over the people.... The national government possesses those powers which it can be shown the people have conferred on it, and no more.... We are here to administer a Constitution emanating immediately from the people, and trusted by them to our administration.... This government, sir, is the independent offspring of the popular will. It is not the creature of state legislatures; nay, more, if the whole truth must be told, the people brought it into existence, established it, and have hitherto supported it, for the very purpose, amongst others, of imposing certain salutary restraints on state sovereignties.... The people, then, sir, erected this government. They gave it a constitution, and in that constitution they have enumerated the powers which they bestow upon it.... Sir, the very chief end, the main design for which the whole constitution was framed and adopted, was to establish a government that should not be obliged to act through state agency, depend on state opinion and state discretion.... If anything be found in the national constitution, either by original provisions, or subsequent interpretation, which ought not to be in it, the people know how to get rid of it. If any construction be established, unacceptable to them, so as to become practically a part of the constitution, they will amend it at their own sovereign pleasure. But while the people choose to maintain it as it is—while they are satisfied with it, and refuse to change it—who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction, OR OTHERWISE?... Sir, the people have not trusted their safety, in regard to the general constitution, to these hands. They have required other security, and taken other bonds.” (From Webster’s reply to Hayne, U. S. Senate, January, 1830. 4 Ell. Deb. 498 et seq.)

We average Americans, now educated in the experience of the average American from 1776 to the beginning of 1787, find much merit and comfort in Webster’s understanding of basic American law. He had a reasoned and firm conviction that Americans really are citizens and not subjects. His conviction, in that respect, while opposed to the convictions of our leaders and “constitutional” lawyers, has seemed to us quite in accord with the convictions of earlier leaders such as Iredell and Wilson and the others, and also with the decisions of our Supreme Court.

Briefly stated, it has become quite clear to us that the American people, from 1776 to 1787, were fixed in their determination to make our basic American law what the conviction of Webster and the leaders of every generation prior to our own knew it to be. Let us go back, therefore, to the Americans in the Philadelphia convention of 1787, who worded the Constitution which is the supreme law of America, and ascertain how their knowledge of fundamental American law dictated the wording of their proposed Seventh Article.

CHAPTER VIII
PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES”

We recall how clearly the Americans at Philadelphia, in 1787, knew that any grant of national power to interfere with the freedom of individuals was the constitution of government. We recall the bitter conflict of opinion, threatening the destruction of the assembly, over the manner of choosing the members of the legislature to exercise whatever powers of that kind the citizens of America might grant. We recall the great opposition to the proposal of a grant of any power of that kind and to the particular proposal of each of the enumerated powers of that kind, all embodied in the First Article.

We have thus come to know with certainty that the minds of the Americans at Philadelphia, during those strenuous four months, were concentrated mainly upon a proposal to grant some national power to interfere with the human freedom of all Americans. In other words, we have their knowledge that their proposed First Article, by reason of its grants of such power, would constitute a new nation and government of men, if those grants were validly made by those competent to make such grants.

Under which circumstances, we realize that it became necessary for them to make a great legal decision, in the construction of basic American law, and, before making that decision, which was compelled to be the result of judgment and not of will, accurately to ascertain one important legal fact. Indeed, their decision was to be the actual conclusion reached in the effort to ascertain that legal fact. This was the single question to which they must find the right answer: “Under our basic American law, can legislatures ever give to government any power to interfere with the human freedom of men, or must every government in America obtain its only valid powers of that kind by direct grant from its own citizens?”

It is easy for us to state that they should have known that the answer to that question was expressly and authoritatively given in the Statute of ’76. It was there plainly enacted that every just power of any government must be derived from the direct grant of those to be governed by its exercise. Yet our own leaders for the last five years have not even asked the question, much less known the right answer.

At Philadelphia, in 1787, they did know it. They had no doubt whatever about it. We shall see that quickly in our brief review of the record they made at Philadelphia in ascertaining and deciding, as a legal necessity, to whom their First Article and its enumerated grants of national power must be sent and, when we boast of how quickly we knew the answer, we should admit that we did not know it until after we had lived again with them through their experience of the preceding ten or twelve years which had educated them, as it has just educated us, to that knowledge. Furthermore, many of us average Americans will be unable to explain, until later herein, why, during the last five years, our own leaders have not known the right answer. The Statute of ’76 has not been wholly unknown to them. The record of the Philadelphia Convention and the ratifying conventions has not been entirely a closed book to them. The important and authentic statements of Webster and other leaders of past generations have been read by many of them. If they did not understand and know the correct answer, as we now realize they have not known, let us not withhold from the Americans at Philadelphia our just tribute of gratitude that they did accurately know, when it was amazingly important to us that they should know.

When those Americans came to answer that question, there were facts which might have misled them as other similar facts of lesser importance have undoubtedly misled our leaders.

In 1776, from that same Philadelphia had gone a suggestion that a constitution of government, with Articles granting power to government, be made in each former colony. In 1787, there had gone from that same Philadelphia a proposal that a constitution of a general government for America be made, with Articles granting power to that government. The proposal of 1776 had suggested that the proposed Articles be made by the people themselves, assembled in conventions. The proposal of 1777 had suggested that the proposed Articles be made by the legislative governments of the states. Both proposals, even as to the makers of the respective Articles, had been acted upon. All the Articles, although some had been made by the people themselves and others by legislatures, had been generally recognized as valid law. Some of the men at Philadelphia in 1787 had been members of the proposing Second Continental Congress, when the respective proposals of 1776 and 1777 had gone from Philadelphia. When, in 1787, they were called upon to find and state, as their legal decision, the correct answer to their important question, it was necessary for them to ascertain, as between state “legislatures” and the people themselves, in “conventions,” which could validly make the Articles which had been worded and were about to be proposed. It would not, therefore, have been beyond the pale of our own experience if the earlier proposals had misled them and they had made the wrong answer to the question which confronted them. Furthermore, as we have already noted, although we can little realize the influence of such a fact upon men seeking the correct legal answer to an important question, their whole proposal was a new adventure for men on an uncharted sea of self-government. Under all of which circumstances, let us again pay them their deserved tribute that they went unerringly to the only correct answer.

We know that the essence of that answer is expressed in the Seventh Article proposed from Philadelphia. Only one answer was possible to Americans of that generation. They had been “subjects” and had become “citizens.” They knew the vital distinctions between the two relations to government.

The Convention which framed the Constitution was, indeed, elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with the request that it might “be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.” This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they [the American people] act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution [the First Article grants of power to interfere with individual freedom] derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people.... It required not the affirmance, and could not be negatived, by the state governments.... To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent.

But, when a general government of America was to be given any national power to interfere with the individual freedom of its citizens, as in the First Article of 1787 and in the Eighteenth Amendment of 1917,

acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. (Marshall in the Supreme Court, M’Culloch v. Maryland, 4 Wheat. 316.)

Marshall was one of the Americans who had been at Valley Forge in 1778, and at other places whose sacrifices made it the basic law of America that all power over American citizens must be derived by direct grant from themselves. Later, he was prominent in the Virginia convention where all Americans in Virginia knew and acted upon this basic law. These facts qualified him to testify, from the Bench of the Supreme Court, that all Americans then knew and acknowledged the binding command of that basic law.

Under such circumstances, it was impossible that the Americans at Philadelphia should not have known and obeyed that law in the drafting of their proposed Seventh and Fifth Articles. Both of these Articles, the Seventh wholly, and the Fifth partly, deal with the then future grant of national power over the people and its only legal gift by direct grant from the people themselves, assembled in their “conventions.” Both Articles name the people of America, by the one word “conventions.”

That Philadelphia should not have strayed from the legal road clearly marked by the Statute of ’76 was certain when we recall how large a part Madison played at Philadelphia, and particularly how he personally worded and introduced, in the closing hours at Philadelphia, what we know as its Fifth Article. As to his personal knowledge of this basic law, we recall his letter of April, 1787, where he said, “To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the legislatures.” And we recall his later words, when urging Americans to adopt the Constitution with its Fifth and Seventh Articles, he said of the Seventh, “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution,” to its grants of power over the people in its First Article. (Fed. No. 43.)

That we may fix firmly in our own minds the knowledge which all Americans then had, which our leaders never acquired or have entirely forgotten, let us briefly review what the earlier Americans did at Philadelphia in obedience to that knowledge of basic American law.

On May 28, Randolph of Virginia “opened the main business” of the Convention. He proposed fifteen resolutions embodying the suggestion of what should be in the different Articles. Resolution Number 15 was that such Articles should be submitted to “conventions,” “to be expressly chosen by the people, to consider and decide thereon.” (5 Ell. Deb. 128.)

The first short debate on this Resolution took place on June 5. In it Madison stated that he “thought this provision essential. The Articles of Confederation themselves were defective in this respect, resting, in many of the states, on the legislative sanction only.” The resolution was then postponed for further consideration. On June 12, “The question was taken on the 15th Resolution, to wit, referring the new system to the people of the United States for ratification. It passed in the affirmative.” (5 Ell. Deb. 183.) This was all in the Committee of the Whole.

On June 13, that Committee made their full report, in which the Randolph Resolution Number 15 was embodied in words as Resolution Number 19 of the report. On June 16, while the Convention was again sitting as a Committee of the Whole, the great struggle was on between the conflicting opinions as to how and in what proportion should be elected the future legislators who were to exercise the granted powers over Americans. On that day, the discussion centered on the relative merits of the Randolph national proposals and a set of federal Articles amending the existing Federal Constitution. In supporting Randolph, Wilson of Pennsylvania stated that “he did not fear that the people would not follow us into a national government; and it will be a further recommendation of Mr. Randolph’s plan that it is to be submitted to them, and not to the legislatures, for ratification.” (5 Ell. Deb. 196.)

On July 23, Resolution Number 19 came up for action. Remembering how insistent many of the delegates were that the general government should be kept a purely federal one, it is not surprising to find Oliver Ellsworth of Connecticut opening the short debate with a motion that the Constitution “be referred to the legislatures of the states for ratification.” But it will also be remembered that the powers to be granted in the new Articles had not yet been settled. The nationalists in the Convention, intent on having some national Articles, knew that the proposed ratification must be by the people themselves, “felt and acknowledged by all” to be the only competent grantors of national powers.

Colonel Mason of Virginia “considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. They are the mere creatures of the state constitutions, and cannot be greater than their creators.... Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment that this doctrine should be cherished, as the basis of free government.” (5 Ell. Deb. 352.)

Rufus King of Massachusetts, influenced undoubtedly by the error of thinking that the Convention meant to act within the Articles of Confederation, was inclined to agree with Ellsworth “that the legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people.... At the same time, he preferred a reference to the authority of the people, expressly delegated to conventions, as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution.” (5 Ell. Deb. 355.)

Madison “thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the state constitutions; and it would be a novel and dangerous doctrine, that a legislature could change the constitution under which it held its existence.” (5 Ell. Deb. 355.)

Ellsworth’s motion to send to the state legislative governments, and not to the people themselves, assembled in “conventions,” was lost by a vote of seven to three. Resolution Number 19, that the new Articles must be sent to the people themselves was adopted by a vote of nine to one, Ellsworth and King both voting for it. (5 Ell. Deb. 356.)

This impressive discussion, now continued for over a month of 1787, with its display of accurate knowledge of the distinction between sending Articles to legislatures and “referring” them to the people, makes quite amusing what we shall hear later in 1917. It will come from the counsel of the political organization which dictated that governments should make the supposed Eighteenth Amendment. After he kindly tells us that history has proven that these Americans of 1787 “builded more wisely than they knew,” meaning “than he knew,” he shall later impart to us the remarkable information that “the framers in the Constitutional Convention knew very little, if anything, about referendums.”

The Resolutions, which had now become twenty-three in number, on July 26, were referred to the Committee of Detail to prepare Articles in conformity therewith. On August 6, that Committee made its report of twenty-three worded Articles. In Article XXII was embodied the requirement that the Constitution should be submitted “to a convention chosen in each state, under the recommendation of its legislature, in order to receive the ratification of such convention.” This provision, the Philadelphia answer and always the only legal answer to the question as to who can validly grant power to interfere with individual freedom, was later seen not properly to belong in the Constitution itself. For which reason, it was taken out of the Constitution and embodied in a separate Resolution which went with the Constitution from Philadelphia.

In Article XXI, the first draft of our Article VII, it was provided: “The ratification of the conventions of —— states shall be sufficient for organizing this Constitution.” (5 Ell. Deb. 381.)

The month of August was passed in the great debates on the proposed grants of national power and the other proposed Articles. When the Convention was drawing to a close on August 30, Articles XXI and XXII were reached.

Gouverneur Morris of Pennsylvania “moved to strike out of Article XXI the words, ‘conventions of the,’ after ‘ratification,’ leaving the states to pursue their own modes of ratification.” Rufus King “thought that striking out ‘conventions,’ as the requisite mode, was equivalent to giving up the business altogether.” Madison pointed out that, “The people were, in fact, the fountain of all power.” The motion of Morris was beaten. An attempt was made to fill the blank in Article XXI with the word “thirteen.” “All the states were ‘No’ except Maryland.” The blank was then filled by the word “nine” the vote being eight to three. The two articles were then passed, the vote thereon being ten to one. (5 Ell. Deb. 499-502.)

On September 10, the beginning of the last business week of the Convention, Gerry of Massachusetts moved to reconsider these two Articles. The short discussion was not in connection with any matter in which we are now interested. His motion was lost. The entire set of worded Articles was then referred to a committee for revising the style and arrangement of the Articles agreed upon. (5 Ell. Deb. 535.)

On Wednesday, September 12, that Committee reported our Constitution, with its seven Articles, as we know them except for some slight changes made during the discussions of the last three or four days of the Convention. In these seven Articles, the language of the earlier Article XXII did not appear. As it really was the statement of the correct legal conclusion of the Convention that its proposed Articles, because they would grant power to interfere with individual freedom, must necessarily be made by the people themselves, its proper place was outside the Constitution itself and in a special Resolution of the same nature as every Congress resolution proposing an amendment to that Constitution. That was the view of the Committee and, on Thursday, September 13, the Committee reported such special Resolutions, in the very words of the former Article XXII. “The proceedings on these Resolutions are not given by Mr. Madison, nor in the Journal of the Federal Convention. In the Journal of Congress, September 28, 1787, Volume 4, p. 781, they are stated to have been presented to that body, as having passed in the Convention on September 17 immediately after the signing of the Constitution.” (5 Ell. Deb. 602.)

This is the Resolution:

“Resolved, That the preceding Constitution be laid before the United States in Congress assembled; and that it is the opinion of this Convention, that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention, assenting to and ratifying the same, should give notice thereof to the United States in Congress assembled.

“Resolved, That it is the opinion of this Convention, that, as soon as the conventions of nine states shall have ratified this Constitution, the United States in Congress assembled should fix a day, etc.” (5 Ell. Deb. 541.)

This Resolution is the most authoritative statement of the legal conclusion reached by these leaders of a people then “better acquainted with the science of government than any other people in the world.” The conclusion itself was compelled by accurate knowledge that the government of “citizens” can validly obtain only from the citizens themselves, by their direct grant, any power to interfere with their individual freedom. The expression of that knowledge, in the Resolution, is, in many respects, one of the most important recorded legal decisions ever made in America. We average Americans, educated with those Americans at Philadelphia through their experience of the years between 1775 and 1787, cannot misunderstand the meaning and importance of that decision. Instructed by our review of their actions and their reasoning at Philadelphia in reaching that conclusion and making that legal decision, we know, with an accurate certainty, that it was their declaration to the world and to us that no proposal from Philadelphia suggested that Americans again resume the relation of “subjects” to any government or governments.

Our minds impressed with this accurate knowledge that such was not their purpose, we now prepare to complete our education as American citizens, not subjects, by reading the Philadelphia story and language of their Fifth Article, their only other Article which even partly concerned the future grant of new government power to interfere with individual American freedom. By reason of our education, we will then come to the reading of the language of this Article, as the Americans read it and understood it when they made it in their “conventions” that followed the proposing convention of Philadelphia.

Being educated “citizens” and not “subjects,” we ourselves will no longer, as our leaders have done for five years, mistake the only correct and legal answer to the indignant outburst of Madison, who wrote this Fifth Article at Philadelphia. “Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual states, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape—that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?” (Fed. No. 45.)

The American answer, from the people of America assembled in the conventions that ratified that Fifth Article, was a clear and emphatic “No.” The Tory answer of the last five years, from our leaders and our governments, has been an insistent “Yes.”

No one, however, with any considerable degree of truthfulness, can assert that there has come from the American people themselves, during the last five years, any very audible “Yes.” To whatever extent individual opinions may differ as to the wisdom or legality of the new constitution of government of men, made entirely by governments, no unbiased observer has failed to note one striking fact. By a very extensive number of Americans otherwise law-abiding, Americans in all classes of society, the new government edict, the government command to “subjects,” has been greeted with a respect and obedience strikingly similar to the respect and obedience with which an earlier generation of Americans received the Stamp Act and the other government edicts between 1765 and 1776.

When the Americans of that earlier generation were denounced by the government which had issued those edicts to its “subjects,” one of the latter, five years before Americans ceased to be “subjects” of that government, stated: “Is it a time for us to sleep when our free government is essentially changed, and a new one is forming upon a quite different system—a government without the least dependence upon the people?”

It may be but a coincidence that, while our American government was announcing its recognition of the wide-spread American disrespect for the new government edict, it is only a few days since throughout America there resounded many eulogies of the Samuel Adams, who made that statement in the Boston Gazette of October 7, 1771. In those eulogies, there was paid to him the tribute that he largely helped to bring about the amazing result of American desire for individual freedom which culminated in the assembling of the Americans in the “conventions” which ratified the proposed Constitution.

We have already sensed that the existence of the supposed Eighteenth Amendment depends entirely upon an amazing modern meaning put into the Fifth Article made in those conventions. Let us, therefore, who are Americans now educated in the experience of the Americans who assembled in those “conventions,” sit therein with them and there read the story and the language of the Fifth Article as they read it when they made it.

CHAPTER IX
THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS”

It has been the misfortune of our prominent Americans of this generation that they read the Fifth Article with preconceived notions of its meaning. To the error of that method of reading it, we average Americans will not pay the tribute of imitation. We know that its meaning to those who made it in the “conventions” of the earlier century is the meaning which it must have as part of the supreme law of the land. That we may read it as they read it and get its clear and only possible meaning, as they got it, we shall briefly review the story of its wording and its proposal at Philadelphia. That Convention immediately preceded the assembling of the people in their own “conventions.” In each of their “conventions,” among the people assembled, were some who had been prominent at Philadelphia, such as Madison and Randolph and Mason in Virginia, Hamilton in New York, Wilson in Pennsylvania and the Pinckneys in South Carolina. Moreover, between the Philadelphia proposal and the assembling of these conventions, Madison and Hamilton, proposer and seconder of the Fifth Article at Philadelphia, had been publishing their famous essays, now collectively known as The Federalist, in the New York newspapers to explain the Articles worded at Philadelphia and to urge their adoption. Under which circumstances, it is clear that, if we want to read and know the meaning of the Fifth Article as it was understood in those conventions, the Fifth Article which named those same “conventions,” we must complete our education by an accurate and brief review of the story of that Article at Philadelphia. Only in that way shall we average Americans of today be in the position in which were the Americans who made that Article.

When we read that story of Philadelphia, in relation to the Fifth Article, one thing stands out with amazing clarity and importance. We already know how that Convention, until its last days, was concentrated upon the hotly debated question of its own proposed grants of national powers in the First Article. In the light of which continued concentration, it is not surprising to learn that, until almost the very last days, the delegates forgot entirely to mention, in their tentative Fifth Article, the existing and limited ability of state legislatures to make federal or declaratory Articles, and mentioned only “conventions” of the people, who alone could or can make national Articles.

The first suggestion of what we now know as the Fifth Article was on the second day, May 29, when the Randolph Resolution 13 read “that provision ought to be made for the amendment of the Articles of union whensoever it shall seem necessary.” This wording was the exact language of Resolution 17 of the report of the Committee of the Whole. It was adopted by the Convention on July 23. Three days later, with the other Resolutions, it was referred to the Committee of Detail “to prepare and report the Constitution.” On August 6, this Committee, in the first draft of our Constitution, reported the following: “Art. XIX. On the Application of the legislatures of two-thirds of the states in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose.”

We see clearly why the delegates, their minds concentrated on their own proposed grants of national powers, mentioned only the people themselves, the “conventions” of the “Seventh” and “Fifth” Articles, who alone can make national Articles, and forgot to mention legislatures, because the latter never can make national Articles. That kind of Article was the only thing they were then thinking about. Naturally, it then escaped their attention that, if they proposed a wise and proper distribution of national power between the new American government and the respective existing state governments, almost every future Article, if not every one, would be of the federal kind, which legislatures or governments could validly make, as they had made all the Articles of the existing federation. Clearly for that reason this Article XIX never even mentioned the existing and limited ability of legislatures.

Between this report of August 6 and August 30, the Convention was again entirely occupied with the grants of national power and the election of the legislators to exercise it or, in other words, with what is now the First Article. On August 30, Article XIX was adopted without any debate.

We are now aware that the Convention was within two weeks of its end and no one had mentioned, in what is now the Fifth Article, the state governments or legislatures as possible makers of federal Articles, if and when such Articles were to be made in the future.

It was not until September 10, Monday of the last Convention week, that Article XIX again came up for action, when Gerry of Massachusetts moved to reconsider it. His purpose, as he himself stated it, was to object because it made it possible that, if the people in two-thirds of the states called a convention, a majority of the American people assembled in that convention “can bind the Union with innovations that may subordinate the state constitutions altogether.” Hamilton stated that he could see “no greater evil, in subjecting the people in America to the major voice than the people of any particular state.” He went on to say that he did think the Article should be changed so as to provide a more desirable “mode for introducing amendments,” namely, drafting and proposing them to those who could make them. In this respect he said: “The mode proposed was not adequate. The state legislatures will not apply for alterations, but with a view to increase their own powers. The national legislature will be the first to perceive, and will be most sensible to, the necessity of amendments; and ought also to be empowered, whenever two-thirds of each branch should concur, to call a convention. There could be no danger in giving this power, as the people would finally decide in the case.” (5 Ell. Deb. 531.)

Roger Sherman of Connecticut then tried to have the Article provide that the national government might also propose amendments to the several states, as such; such amendment to be binding if consented to by the several states, namely, all the states. For reasons that will appear in a moment, this clear attempt to enable the states, mere political entities, and their legislatures, always governments, to do what they might wish with the individual freedom of the American citizen—thus making him their subject—was never voted upon. It was, however, seconded by Gerry of Massachusetts. Its probable appeal to Sherman, always a strong opponent of the national government of individuals instead of the federal government of states, was that it would make it difficult to take away any power from Connecticut, unless Connecticut wished to give it up. Its appeal to Gerry, consistently a Tory in his mental attitude to the relation of government and human being, was undoubtedly the fact that it would permit government or governments to do what they might wish with individual freedom. It does not escape the attention of the average American that our governments and leaders, during the last five years, have not only displayed the mental attitude of Gerry but have also acted as if the proposal, which he urged, had been put into what is our Fifth Article. Only on that theory can we average Americans, with our education, understand why governments in America have undertaken to exercise and to vest in our government a national power over us, which power neither is enumerated in the First Article nor was ever granted by the citizens of America to their only government; nor can we understand why our leaders have assumed that governments in America, which are not even the government of the American citizens, can do either or both of these things. We know, if governments and leaders do not, that neither thing can ever be possible in a land where men are “citizens” and not “subjects.”

CHAPTER X
ABILITY OF LEGISLATURES REMEMBERED

Living through the days of that Convention, we have now seen three months and ten days of its sincere and able effort to word a Constitution which would “secure the Blessings of Liberty” to the individual American. We have seen them spend most of their time in the patriotic endeavor to adjust and settle how much, if any, national power to interfere with individual freedom that Constitution shall give to its only donee, the new and general government. In other words, we have seen the mind and thought and will of that Convention almost entirely concentrated, for those three months and ten days, upon the Article which is the constitution of government, the First Article, with its enumerated grants of general power to interfere with the human rights of the American citizen.

Keeping in mind the object of that intense concentration, the First Article grants of power of that kind, we average Americans note, with determined intent never to forget, the effect of that concentration upon the wording of our Fifth Article up to that tenth day of September. We note, with determined intent never to forget, that, from May 30 to September 10, the only maker of future changes mentioned was the “people” of America, the most important reservee of the Tenth Amendment, the “conventions” of the American people named in both the Seventh and the Fifth Articles.

As this fact and its tremendous meaning have never been known or mentioned in the sorry tale of the five years from 1917 to 1922, we average Americans are determined to dwell upon it briefly so that we cannot escape an accurate appreciation of the short remaining story of the one week at Philadelphia, in 1787, in relation to our Fifth Article.

Only a week earlier, because the First Article did grant enumerated powers to interfere with individual rights, the Convention had known that the seven articles must go to the people directly to say their “Yes” or “No” to those grants of the First Article. For that reason the Convention (considering limited legislative ability to make federal Articles and omnipotent ability of the “people” to make all Articles) had decided that it MUST propose the mode of ratification by the “people,” the “conventions” of the Seventh and the Fifth Articles. As Marshall later authoritatively stated in the Supreme Court, the legal necessity of deriving national powers from the people themselves, the “conventions,” was then known and acknowledged by all.

It was natural, therefore, up to that September 10, that a convention, concentrated entirely upon grants of that kind, when wording its Article with a mode of procedure for making future changes, should have forgotten any changes except of the kind on which its own mind was concentrated and should have mentioned in its amending Article, up to September 10, no maker of future changes except the people themselves, “conventions” of the Seventh and the Fifth Articles.

And, at this point, we average Americans note, again with intent never to forget, that if the one competent maker of such Articles, the “conventions,” had remained the only maker of Articles mentioned in the Fifth Article, even the great “constitutional” lawyers of 1920 would never have made the monumental error of assuming that the Fifth Article was a grant of power (to those who made it and all the original Constitution) to make future Articles. Even they would have noticed and applied to their reading of the Fifth Article the well known legal fact that grantors never can and never do grant to themselves what they already have or a part of it.

Therefore, noting and remembering these significant facts, we turn with interest to the short story of how those able Americans at Philadelphia, their minds no longer exclusively concentrated on their own enumerated grants, remembered that there was another maker of Articles with existing but limited ability to make federal or declaratory Articles. And, with interest, we shall learn how this last week thought caused the Convention to change the Fifth Article by adding a mention of that existing limited ability and prescribing the mode of its future constitutional exercise.

That we average Americans may never be misled by inaccurate statements of the short story of how the mention of that limited ability was added to the mention of the unlimited ability of the “people” or “conventions” of the Fifth Article, it is fitting that the full record of the story be given verbatim. It adds not a little to our amusement that the story is copied from the brief of the leading “constitutional” lawyer of 1920 who championed the validity of the Eighteenth Amendment on the remarkable assumption and error, common to all his associates and his opponents, that the new mention changed the Fifth Article into a grant of ability to those legislatures instead of what its author, Madison, knew and stated that Article to be, a “mode of procedure” for the future constitutional exercise either of that existing limited ability or the other existing unlimited ability of the “people” or “conventions” of the Seventh and Fifth Articles. This is the record of that September 10, as copied from that brief, beginning immediately after Hamilton had voiced his opinion that there could be no danger in letting Congress propose an Amendment “as the people would finally decide in the case.”

“Mr. Madison remarked on the vagueness of the terms, ‘call a Convention for the purpose’ as sufficient reason for reconsidering the Article. How was a Convention to be formed? by what rule decide? what the force of its acts?

“On the motion of Mr. Gerry to reconsider

“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. (Ayes—9; noes—1; divided—1.)

“Mr. Sherman moved to add to the article ‘or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.’

“Mr. Gerry 2ded. the motion.