Chapter VII

PEOPLE OR GOVERNMENT?--CONVENTIONS OR LEGISLATURES?

It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of states. (Justice Brewer, in Supreme Court, Kansas v. Colorado, 206 _U. S._ 46 at page 80.)

Instructed by living through the education of the earlier Americans to their making of that Constitution, we accurately know that they themselves, _by their own direct action_, brought that new nation into being. Through _our_ course in _their_ education, we have _their_ knowledge that only the men, who are to be its first members, can create a new political society of men, which is exactly what any American nation is. “Individuals entering into society must give up a share of liberty to preserve the rest.” So said the letter which went from Philadelphia with the proposed Articles whose later adoption created the new nation and vested the delegated and enumerated national powers of its government to interfere with the liberty of its citizens, (1 _Ell. Deb._ 17.)

Furthermore, through our own personal experience, we understand how all societies of men are brought into being. There are few of us who have not participated in the creation of at least one society of men. Most of us have personally participated in the creation of many such societies. For which reason, we are quite well acquainted with the manner in which all societies of men are brought into being. We know that ourselves, the prospective members of the proposed society, assemble and organize it and become its first members and constitute the powers of its government to command us, its members, for the achievement of the purpose for which we create it.

For one simple reason, the Americans, through whose education we have just lived, were “better acquainted with the science of government than any other people in the world.” That reason was their accurate knowledge that a free nation, like any other society of individuals, can be created only in the same manner and by its prospective members and that the gift of any _national_ powers to its government can only be by direct grant from its human members. This is the surrender “of a share of their liberty, to preserve the rest.”

The knowledge of those Americans is now our knowledge. For which reason, we know that they _themselves_ created that new nation and immediately became its citizens and, _as such_, gave to its government all the valid and enumerated national powers of that government to interfere with their and our human freedom. We know that they did all these things, by their own direct action, “in the only manner, in which they can act safely, _effectively_ or wisely, on such a subject, by assembling in conventions.”

Thus, whatever may have been the lack of knowledge on the part of our leaders and “constitutional” lawyers for the last five years, we ourselves know, with knowledge that is a certainty, that the ratifying conventions of 1787 and 1788 WERE the American people themselves or the citizens of the new nation, America, assembled in their respective states.

Our Supreme Court has always had the same knowledge and acted upon it.

The Constitution of the United States was ordained and established, not by the states in their sovereign capacities [the respective peoples or citizens of each State] but emphatically, as the preamble of the Constitution declares, by “the people of the United States” [namely the one people of America].... It was competent to the people to invest the general government with all the powers which _they_ might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority.... The people had a right to prohibit to the states the exercise of any powers which were, in _their_ judgment, incompatible with the objects of the general compact [between the citizens or members of the new nation], to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to _themselves_ those sovereign authorities which _they_ might not choose to delegate to either. (Supreme Court, Martin v. Hunter’s Lessee, 1 _Wheat._ 304, at p. 324.)

Instructed by experience, the _American people_, in the conventions of their respective states, adopted the present Constitution.... The _people_ made the Constitution and the people can unmake it. It is the creature of _their_ will, and lives only by _their_ will. But this supreme and irresistible power to make or to unmake resides only in the _whole_ body of the people, not in any subdivisions of them. (Marshall, in Supreme Court, Cohens v. Virginia, 6 _Wheat._ 264.)

The Constitution was ordained and established _by the people_ of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. _The people of the United States_ framed _such_ a government for the United States as _they_ supposed best adapted to _their_ situation, and best calculated to promote _their_ interests. The powers _they_ conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by _different persons_ and for different purposes. (Marshall, in Supreme Court, Barron v. Mayor of Baltimore, 7 _Peters_, 243.)

When the _American people_ created a _national_ legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states. These powers proceed, not from the people of America, _but from the people of the several states_; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. (Marshall, in the Supreme Court, Sturges v. Crowninshield, 4 _Wheat._ 122.)

We average Americans know _and will remember_ the clear distinction, the _substantial_ distinction, recognized by the great jurist, between “the people of America” and “the people of the several states,” although they happen to be the same human beings acting in different capacities, as members of different political societies of men. It is a matter of constant mention in the Supreme Court that we ourselves, in addition to our capacity as human beings, have two other distinct capacities, that of citizen of America and that of citizen of our respective state; that, as citizens of America, we alone validly give to _its_ government any power to command us, and, as citizens of our particular state, we alone validly give to _its_ government all its national power to command us. The decisions of the Supreme Court, in that respect, are mentioned elsewhere herein. Meanwhile, we average Americans understand these matters perfectly _and will not forget them_. We are quite accustomed, while retaining our status as free human beings, to be members of many different societies of men and, as the members of some particular society, to give to its government certain powers to interfere with our freedom.

We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other.... Experience made the fact known to _the people of the United States_ that _they_ required a national government for national purposes.... For this reason, the people of the United States ... ordained and established the government of the United States, and defined its powers by a Constitution, which they adopted as its fundamental law, and made its rules of action. The government thus established and defined is to some extent a government of the states in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the states; but beyond, it has no existence. It was erected for special purposes and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view.... The people of the United States resident within any state are subject to two governments, one state, and the other _national_; but there need be no conflict between the two. Powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. (Justice Waite, in Supreme Court, United States v. Cruikshank, 92 _U. S._ 542.)

It must seem remarkable to us average Americans, with the education we have acquired at this point, to realize that _our_ leaders and “constitutional” lawyers have not known _why_ only we ourselves, in our capacity as citizens of America, can give any new national power to interfere with our freedom and that we, for such new giving, must act, in the only way in which the citizens of America “_can_ act safely, EFFECTIVELY, or wisely, on such a subject, by assembling in convention,” in our respective states, the very “conventions” mentioned for valid grant of such _national_ power in the Fifth Article of the Constitution made by the citizens of America, so assembled in such “conventions.” Before dwelling briefly upon the accurate appreciation of that legal fact displayed by those first citizens in everything connected with the making of that Constitution and that Fifth Article, let us realize how well the leaders and great constitutional lawyers of other American generations between that day and our own _did_ know this settled legal fact.

After the Americans _in_ nine states had created the new nation and had become its citizens and had (in that capacity) granted the _national_ powers of its First Article, the Americans in Virginia assembled to determine whether they also would become citizens of the new nation. As the president of the convention, in which they assembled, they chose Edmund Pendleton, then Chancellor of Virginia.

Very early in the debates, Henry and Mason, great opponents of the Constitution, attacked it on the ground that its Preamble showed that it was to be made by the people of America and not by the states, each of which was then an independent people. Henry and Mason wanted those peoples to remain independent. They wanted no new nation but a continuance of a mere union of independent nations. They knew that a constitution of government ordained and established by the one people of America, assembled in their respective “conventions,” as the Preamble of this Constitution showed _it_ to be, created an American nation and made the ratifying Americans, in each state, the citizens of that new nation. For this reason, the opening thunder of Henry’s eloquence was on that Preamble. “My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of _We, the people_, instead of, _We, the states_? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, _national_ government, of the people of all the states.” (Henry, 3 _Ell. Deb._ 22.)

The learned Pendleton, sound in his knowledge of basic American law and quick to grasp the plain meaning of the Fifth Article of the new Constitution, quickly answered Henry. “Where is the cause of alarm? We, the people, _possessing all power_, form a government, such as we think will secure happiness; and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but say gentlemen, we have put the _introduction_ of that method in the hands of our servants, who will interrupt it for motives of self-interest. What then?... Who shall dare to resist the people? No, we will assemble in convention; wholly recall our delegated powers or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.... But an objection is made to the form; the expression, We, the people, is thought improper. Permit me to ask the gentlemen who made this objection, WHO BUT THE PEOPLE CAN DELEGATE POWERS? Who but the people have the right to form government?... _What have the state governments to do with it?_” (3 _Ell. Deb._ 37.)

We average Americans know and will remember that this learned American lawyer, only twelve years earlier a _subject_ of an omnipotent legislature, already knew the basic American principle to be that the delegation of _national_ power _was_ the constitution of government of a free people and that only the people, assembled in convention, could delegate such power and that the state governments, under basic American law, never can have the ability to delegate _that kind_ of power. We regret that _our_ “constitutional” lawyers, all born free citizens of a free republic, have not the same accurate knowledge of basic American law.

But the knowledge of Henry and of Pendleton, that the document under consideration was the Constitution of a nation whose citizens alone could give to its government any valid power to interfere with their human freedom, was the knowledge of all in that and the other “conventions,” in which the one people of America assembled and adopted that Constitution. Let us note another distinct type in that Virginia convention, the famous Light-horse Harry Lee of the Revolution. “Descended from one of the oldest and most honorable families in the colony, a graduate of Princeton College, one of the most daring, picturesque, and attractive officers of the Revolution, in which by sheer gallantry and military genius he had become commander of a famous cavalry command, the gallant Lee was a perfect contrast to the venerable Pendleton.” (Beveridge, _Life of Marshall_, Vol. I, page 387.) Lee also replied to Henry’s attack on the expression “We, the people” and not “We, the states.” In his reply, there was shown the same accurate knowledge of basic American law. “This expression was introduced into that paper with great propriety. This system is submitted _to the people_ for their consideration, because on them it is to operate, if adopted. It is not binding on the people until it becomes their act.” (3 _Ell. Deb._ 42.)

In the Massachusetts convention, General William Heath, another soldier of the Revolution, showed his accurate conception of the legal fact of which we average Americans have just been reading in the decisions of our Supreme Court. “Mr. President, I consider myself not as an inhabitant of Massachusetts, but as a citizen of the United States.” (2 _Ell. Deb._ 12.)

In the North Carolina convention, William Goudy seems to have had some prophetic vision of our own immediate day. Speaking of the document under discussion and clearly having in mind its First Article, this is the warning he gave us: “Its intent is a concession of power, on the part of the people, to their rulers. We know that private interest governs mankind generally. Power belongs originally to the people; but if rulers [all governments] be not well guarded, that power may be usurped from them. People ought to be cautious in giving away power.... Power is generally taken from the people by imposing on their understanding, or by fetters.” (4 _Ell. Deb._ 10.)

In that same North Carolina convention, James Iredell, later a distinguished judge of our Supreme Court, in replying to the common attack that the Constitution contained no Bill of Rights, displayed clearly the general accurate knowledge that, in America, any grant of _national_ power to interfere with human freedom _is_ the constitution of government and that the citizens of any nation in America are _not_ citizens but subjects, _if_ even a single power _of that kind_ is exercised by government without its grant directly from the citizens themselves, assembled in their conventions. “Of what use, therefore, can a Bill of Rights be in _this_ Constitution, where the _people_ expressly declare how much power _they_ do give, and consequently retain all that they do not? It is a declaration of particular powers _by the people_ to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given.” (4 _Ell. Deb._ 148.)

When we average Americans read the debates of those human beings, the first citizens of America, one thing steadily amazes us, as we contrast it with all that we have heard during the past five years. Some of those first citizens were distinguished lawyers or statesmen, quite well known to history. Some of them bore names, then distinguished but now forgotten. Most of them, even at that time, were quite unknown outside of the immediate districts whence they came. All of them, twelve years earlier, had been “subjects” in an empire whose fundamental law was and is that its legislative government can exercise any power whatever to interfere with human freedom and can delegate any _such_ power to other governments in that empire. The object of the American Revolution was to change that fundamental law, embodying the Tory concept of the proper relation of government to human being, into the basic law of America, embodying the American concept of that relation declared in the great Statute of ’76, that no government can have any power _of that kind_ except by direct grant from its own citizens. During that Revolution, human beings in America, in conformity with their respective beliefs in the Tory or the American concept of the relation of human being to government, had been divided into what history knows as the Tories and the Americans. Many of the human beings, assembled in those conventions of ten or twelve years later, had been sincere Tories in the days of the Revolution.

Yet, if we average Americans pick up any volume of their recorded debates in those “conventions,” we cannot scan a few pages anywhere without finding the clearest recognition, in the minds of all, that the American concept had become the basic American law, that the Tory concept had disappeared forever from America. All of them knew that, so long as the Statute of ’76 is not repealed and the result of the Revolution not reversed, no legislatures in America can exercise any power to interfere with human freedom, except powers obtained by direct grant from the human beings over whom they are to be exercised, and that no legislatures can give to themselves or to another legislature any _such_ power. It was common in those “conventions” of long ago to illustrate some argument by reference to this admitted legal fact and the difference between the fundamental law of Great Britain and of America, in these respects. In that North Carolina convention, the same Iredell, after pointing out that the American concept of the relation of citizen to all governments had become basic American law, contrasts that fact with the fundamental law of Great Britain where “Magna Charta itself is no constitution, but a solemn instrument ascertaining certain rights of individuals, _by the legislature_ for the time being; and _every_ article of which the _legislature_ may at any time alter.” (4 _Ell. Deb._ 148.)

In the Pennsylvania convention, on December I, 1787, one of the most distinguished lawyers of that generation made a memorable speech, expressing the universal knowledge that the American concept had taken forever the place of the Tory concept in fundamental American law. We commend a careful study of that speech to those of our public leaders and “constitutional” lawyers, who for five years have been acting on the assumption that the Tory concept has again become our fundamental American law. We average Americans, after living with those earlier Americans, are not surprised to listen to the statements of Wilson. “The secret is now disclosed, and it is discovered to be a dread, that the boasted _state sovereignties_ will, under this system, be disrobed of part of their power.... _Upon what principle is it contended that the sovereign power resides in the state governments?_... The proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone.... When the principle is once settled that _the people_ are the source of authority, the consequence is, that they may take from the _subordinate_ governments powers which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, _called state governments_; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors--to the majesty of the people?” (2 _Ell. Deb._ 443.)

We average Americans, legally bound (as American citizens) by no command (interfering with our human freedom) except from our _only_ legislature at Washington and then only in those matters in which _we ourselves_, the citizens of America, have directly given it power to command us, now intend insistently to ask all our governments, the supreme one at Washington and the subordinate ones in the states of which we are also citizens, exactly the same question which Wilson asked.

Daniel Webster asked almost exactly the same question of Hayne and history does not record any answer deemed satisfactory by the American people. Webster believed implicitly in the concept of American law stated by those who made our Constitution. Like them, and unlike _our_ “constitutional” lawyers, he knew that the Tory concept of the relation of men to their government had disappeared from American basic law.

“This leads us to inquire into the origin of this government, and the source of its power. Whose agent is it? Is it the creature of the state legislatures, or the creature of the people?... It is, sir, the people’s constitution, the people’s government--made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. The states are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the state legislatures, as political bodies, however sovereign, are yet not sovereign over the people.... The national government possesses those powers which it can be shown _the people_ have conferred on it, _and no more_.... We are here to administer a Constitution emanating immediately from the people, and trusted by them to our administration.... This government, sir, is the independent offspring of the popular will. It is not the creature of state legislatures; nay, more, if the whole truth must be told, the people brought it into existence, established it, and have hitherto supported it, for the very purpose, amongst others, of imposing certain salutary restraints on state sovereignties.... The people, then, sir, erected this government. They gave it a constitution, and in that constitution _they_ have enumerated the powers which _they_ bestow upon it.... Sir, the very chief end, the main design for which the whole constitution was framed and adopted, was to establish a government that should not be obliged to act through state agency, depend on state opinion and state discretion.... If anything be found in the _national_ constitution, either by original provisions, or subsequent interpretation, which ought not to be in it, the people know how to get rid of it. If any construction be established, unacceptable to them, so as to become practically a part of the constitution, _they_ will amend it at their own sovereign pleasure. But while the _people_ choose to maintain it as it is--while _they_ are satisfied with it, and refuse to change it--_who_ has given, or who _can_ give, to the state legislatures a right to alter it, either by interference, construction, OR OTHERWISE?... Sir, the people have not trusted _their_ safety, in regard to the general constitution, to these hands. They have required other security, and taken other bonds.” (From Webster’s reply to Hayne, U. S. Senate, January, 1830. 4 _Ell. Deb._ 498 et seq.)

We average Americans, now educated in the experience of the average American from 1776 to the beginning of 1787, find much merit and comfort in Webster’s understanding of basic American law. He had a reasoned and firm conviction that Americans really _are_ citizens and not subjects. His conviction, in that respect, while opposed to the convictions of _our_ leaders and “constitutional” lawyers, has seemed to us quite in accord with the convictions of earlier leaders such as Iredell and Wilson and the others, and also with the decisions of our Supreme Court.

Briefly stated, it has become quite clear to us that the American people, from 1776 to 1787, were fixed in their determination _to make_ our basic American law what the conviction of Webster and the leaders of every generation prior to our own knew it to be. Let us go back, therefore, to the Americans in the Philadelphia convention of 1787, who worded the Constitution which is the supreme law of America, and ascertain how their knowledge of fundamental American law dictated the wording of their proposed Seventh Article.