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their Statute of ’76--never repealed--declare this principle to be the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.