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.