Francis X. Hennessy

“ THE AMERICAN CITIZEN WILL REMAIN
The United States [the great political society of men which this book persistently calls America] form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. ”

“ Now, if our American Constitution is a compact between the State of Texas—the human beings in Texas—and the other states—the human beings in the other states—how comes it that the mere creature of the Texans, without power over them except from them, can, by combination with other servant legislatures outside Texas, give to itself and to other governments outside Texas a new power to interfere with the freedom of the human beings in Texas? ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Even Sheppard must some time have heard the echo of Lincoln’s appeal, at Gettysburg, that government of the people, by them and for them, should not perish from the earth. Even Sheppard must recognize, whether or not he wish to do so, how successfully the American people, whose predecessors made the Constitution, answered that appeal of Lincoln and intend to keep our government a government of the people, by them and for them, instead of a Sheppard government of the people, by governments without authority from the people. ”

“ Living through their experience, like them we have become “a people better acquainted with the science of government than any other people in the world,” so far as government is intended to secure individual liberty and happiness. When we sit with them, we intend not to forget, as they never did forget in those conventions, that this was the sole purpose of the Constitution they considered and made, the purpose of securing individual liberty and happiness. ”

“ On the contrary, we shall find every opponent of the supposed new Amendment making easy the way of its supporters by joining in the common assumption of all and predicating every argument against the new Amendment on the same extraordinary assumption that the Fifth Article is a grant of power to the grantors and to the state governments. Not once, in any brief or argument of the most renowned lawyers in America, shall we find even the faintest knowledge of two facts which must be so if the Fifth Article is a grant of power to the two supposed grantees. ”

“ 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. ”

“ Their creed was that the laws of right and wrong are immutable; that the Creator made the individual man and granted human freedom to him; that such freedom is inherently subject only to the Divine Will, the immutable law of right and wrong, but that it may voluntarily become subject, by the will of the individual man, to the exercise of powers of interference which only he and his fellow men themselves can ever validly grant to government.
“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. ”

“ When Hamilton knew that these state legislatures were not the legitimate source of national powers in a republic and when he had this view of their general character, will any sane man believe that he advocated that the citizens of America should make these legislatures (although the citizens of America elect not a single member in them) absolute attorney in fact for the citizens of America for all purposes? ”

“ If our modern leaders, who have the same Tory concept of what government ought to be, had evinced the same perception and the same insistence, the story of the last five years would be a different story. Because these leaders have had no knowledge of what America is, we average Americans must now come straight from the “conventions” in which the Americans established the Constitution to secure individual freedom and we must educate ourselves in the story of the last five years in which our governments and our leaders have calmly assumed that citizens are subjects. ”

“ We thus have clearly in our minds that the individual in America has the human right (with which the new Amendment interferes) and that it is subject to the interference of no government, except as the citizens of that particular government have given it power so to interfere with it. The undoubted fact that the right itself is not the privilege of the citizen of America or the citizen of the state is simply another way of saying that the original human right itself is not granted to the human being by government or governments but by the Creator Who made him. ”

“ 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?... As far as the sovereignty of the states can not be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. ”

“ 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. ”

“ You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless,” the state legislatures mentioned in the Fifth Article, “and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?” ”

“ The Constitution is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen, and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. ”

“ It is rather ridiculous to find Hughes, associate champion of Wheeler for the new Amendment, contending that the people never are the legislature, while Wheeler contends that a government is controlled entirely by the people when it is controlled entirely by legislatures. But, it is to be expected, when men work in association on a common unsound basis, that one champion should frequently contradict another as to fact, and that even the same champion should often contradict himself as to fact. ”

“ 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. ”

“ When first we shall hear this 1917 resurrection of the Tory concept that government is master and Americans are “subjects,” that government is the state and we are its assets, we shall naturally be astounded and indignant that even a few inhabitants should still retain what Madison called “the impious doctrine” of the Old World, that people are made for governments, not governments for the people. ”

“ 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?... I have no idea that a safe system of power in the government, sufficient to manage the general interest of the United States, could be drawn from any other source, or vested in any other authority, than that of the people at large ”

“ So that we may fairly and justly conclude that one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments. A trifling minority may reject the most salutary amendments. Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government ”

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

“ In our education, we now grasp accurately that the Americans, who ended forever the status of “subject” in America, in their Revolution, had not only to contend with their former omnipotent government but also with one third of their own population, the Tories. When that Revolution had succeeded, when the Statute of ’76 had actually been made the basic law of America, many Tories, in the natural course of events, became citizens of the particular state, now a free republic, in which they lived. ”

“ If government was to carry through a successful revolution against free men and acquire the omnipotence denied to the British Parliament, it would have been well for the proposers of the Revolution and the champions of it to have agreed at least upon one fact, whether the states, political entities, or the citizens of America, in their “conventions,” made the Constitution—which was to secure the American citizen against all usurpation of power by governments. ”

“ Why should the supreme legislature not deny that right of petition to us, if the inferior state legislatures, who are not governments of the citizens of America, claim power to deny us any right they please, as they do by their supposed Eighteenth Amendment to our Constitution? ”

“ The challenge to validity again and again touches on the monumental error of the Tory concept behind all claim to validity. The challenge puts its finger at once upon the absurd assumption, on which the Eighteenth Amendment wholly depends for existence, the assumption that the Americans we have just left ever considered the “people” as the “legislature” or the “legislature” as the “people.” The challenge emphasizes the fact we all know, that the “conventions” knew that “conventions” were the “people” and that “legislatures” never were the “people.” ”