CHAPTER VTHE 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 withnationalpowers.
We have been with them in those early days whenlegallythey 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 theirlegalstatus, those Americans wereactuallyand in substance citizens of their own respective communities, inasmuch as the legislatures whichactuallydid 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 anationalpower 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 anynationalpower except by direct grant from itscitizens. We have seen them, in their Statute of ’76—never repealed—declare this principle to be the basic law of America.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 ineachformer 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 suchnationalabilityisthe constitution of government and that no people ever are free or self-governing unless every grantof that kindis 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 Americansand their governmentsknew 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 nationshadgranted toitslegislative government, were to be exercised only bythatlegislative 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 independentsovereignty created by themselves.” (Marshall, M’Culloch v. Maryland, 4Wheat.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 afederalunion of those nations but not to govern, by the exercise ofnationalpowers, 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 allfederalpurposes, to vestfederalpowers in afederalgovernment. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent.” (Marshall, M’Culloch v. Maryland, 4Wheat.316.) But those legislative governments knew that they could not delegate to any government even those limitednationalpowers “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 tonationalpowers similarly withheld from the laternationalgovernment 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 reservedto the peopleand can be exercised only bythem, or uponfurther grant from them. (Justice Brewer in Turner v. Williams, 194U. S.279.)
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 reservedto the peopleand can be exercised only bythem, or uponfurther grant from them. (Justice Brewer in Turner v. Williams, 194U. 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 butfederalpowers, 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 butfederalpowers, rose again to the great occasion. We have been with them when, outside of all then existing constitutions and outside of all written American lawexcept the Statute of ’76, those Americans, at the suggestion of theirAmericanleaders, 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 enumeratednationalpowers 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 enumeratednationalpowers, 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 ownnationalgovernment, make it also thefederalgovernment of that federation and leave with it suchfederalpowers 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 anationalpower not granted by its own citizens, and that no legislature or legislatures in America could give anynationalpower to any government.
We average American citizens of this present generation must now feel qualified to understand the Constitution and its settled distribution of allnationalpowers to interfere with individual freedom. If these Americans could use their knowledge intelligently tomake 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 andtheirleaders, 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 themselvesbecausepeople and governments alike knew thatsuchgrants 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, 16Wall.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 ofnationalexistence 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 rightsof 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 thatpropertyis 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 ofnationalpowers among those governments and reserved to themselves manynationalpowers, all for the main purpose of securing individual life and liberty, andthen, 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 anywrongeducation 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 thoseconstitutions 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 undelegatednationalpowers 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 factthat, and the constitutional reasonwhy, 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 delegatednationalpowers 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 themselvesalone all othernationalpowers to legislate forAmericancitizens except those national powers granted and enumerated in Article I of our Constitution to the only national government of the citizens of America.