CHAPTER IVTHE 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 thefederalform of union came from the inability of itsfederalgovernment, 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 havenational, as well asfederal, 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 Jerseyand 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 ofthatRevolution, 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) inThe 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 convincedthat 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 werethenactually in America thirteen independent nations, each having its powerful jealousies of the other nations and particularly of itsown 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 hadits 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,proposedby 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, 2Ell. Deb.470.)
“It is therefore essential that such changes [in government] be instituted by someinformal 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 eachstate “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 anationalgovernment ought to be established, consisting of asupremelegislative, executive, and judiciary.” (5Ell. 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 purposeof the convention, stated in the commissions of the delegates, is that it frame a set offederalArticles 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 constitutionalArticles 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 itnationalpowers 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 beforethe 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 (5Ell. 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 latermade 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”nationalpower “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 inThe Federalistwhich 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 governmentfederalpower 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 makefederalArticles and that such limited legislative ability was not and never could be, in America, competent to makenationalArticles. 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 thefederalArticles of the existing federation and that the unlimited ability had been exercised, in each existing nation, in making itsnationalArticles.
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 remarkableletter 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 inThe 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,allthenationalpower 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 Articlego on to enumerate all the powers of that kind, thenationalpowers, 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 ofall nationalpowers 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 thelastof 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, 9Wheat.1.)
This instrument contains an enumeration of powers expressly granted by the people to their government.... In thelastof 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, 9Wheat.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 isbecausethe 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 humanfreedom is the substance and essence of government. That is why all thenationalpowers of any American government are included in whatever ability its legislature has to make valid commandsof 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.” (1Ell. 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 anynationalpowers.
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, theyrelateto the vesting ofnationalpower in our Americannationalgovernment; but, unlike the First Article, neither of them purports to grant any such power to any government. They deal with themannerof its grant by the only competent grantors of power ofthat 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 ofnationalpower, 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 ofnationalpower. That Fifth Article does not relate to grant ofnationalpower alone. It also relates to grant offederalpower. It relates to thefuturegrant 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, inThe Federalistand 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 aconstitutional mode of procedurein which theexistingability of theAmericancitizens to makeanykind of Article, whethernationalorfederal, could thereafter be invoked to exercise and be exercised. It was also worded so as to provide aconstitutional mode of procedurein which there could be likewise invoked to exercise and be exercised the existing limited ability of the state legislatures to make articles which were notnational. As a matter of fact, it was only at the last moment, in the Convention, that Madison and Hamilton, remembering thislimitedability 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, becameitscitizens and,as such, vested its only government with its enumeratednationalpowers.
When the Philadelphia Convention, on September 17, 1787, had completed its voluntary task of wording the proposed Constitution of a nation and its supremegovernment 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 itmustbe 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 givenationalpowers 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 powersof 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 anynationalpower.
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 inhistory. 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 fortuneand our ownthat 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 whichdidmake 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 fiveyears 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 enumeratednationalpowers 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.’” (5Ell. 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, asitscitizens, made the onlyvalidgrants of enumeratednationalpower, the grants in theFirst 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 theirgreatestRevolution, exercised theirexclusiveability to give their one government somenationalpower 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, asitscitizens, they hadmade 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 itsnationalpower, had given to each such government no new power whatever, but had left with it much of its formernationalpower over its own citizens; they had kept alive the federation of nations, now a federation of partially independent states; they had made their own newnationalgovernment also thefederalgovernment of that continuing federation and their ownnationalConstitution also thefederalConstitution 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 thepeopleof 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 peoplehad freed all the colonies and had permitted the Americans in each colony to constitute a nation for themselves. And, when the Americans ineach 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 alwaysbeen 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 thefederalpart of our Constitution was primarily intended to require that every state must extend to the “privileges or immunities of citizens” ofAmericathe same respect and protection which the American Constitution had previously only required that each state must extend to the citizens of theother 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 ofAmericain any state. And so this command was added to thefederalpart 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, 16Wall.36, Paul v. Virginia, 8Wall.168, Re Kemmler, 136U.S.436, U.S. v. Cruikshank, 92U.S.542, Blake v. McClung, 172U.S.239, Maxwell v. Sow, 176U.S.581 and numerous other cases the important decisions have turned entirely upon the vital distinction betweena 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 forthe government of ourselves and our posterity.” (5Ell. 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 ofnationalpower 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 thecitizens 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 ofAmerica, in that capacity.