Citizen or Subject?
An Overlooked Reconsideration of
a Fundamental Question in U.S. Constitutional Law
British and American Studies (University of the West, Timisoara) 13 (2007): 163-74.
On April 6, 1917, the United States of America began assembling a fighting force to engage in WWI. This American Expeditionary Force would eventually total almost 5 million men under arms, of whom 116,000 would die and 230,000 would be wounded when combat came to an end the following year. As if this was not enough mayhem for any generation, an influenza pandemic swept the world during this conflict and it killed more people in weeks than the sum total that died in combat during The Great War.
For Americans and their families who had been afflicted by these ravages of war and disease, it is a fairly safe guess to suggest that the last thing on their minds was a legal war to terminate some of their rights as citizens, which they believed were protected by the United States Constitution. Some would later claim that what then followed amounted to a form of coup d’état. No sooner had the hot war of combat been entered into when religiously motivated agitators decided that this was the ideal moment to wage a Constitutional War.
Now seen from the distance of time, the issues chosen for this war seem to have little in common with human rights, because the goal of America’s Anti-Saloon League was to halt the transportation, trade and consumption of alcoholic beverages by means of a Constitutional Amendment. This legal battle for prohibition began on December 17, 1917, when the U.S. Senate introduced a proposal in the form of the 18th Amendment. The House discussed and passed a Joint Resolution that same day. This proposal was then submitted to the State Legislatures for ratification in accordance; it was claimed, with a provision of the Fifth Article of the Constitution. Thirty-six State legislatures ratified this Amendment on January 16, 1919 and it took effect to the day, one year later.
If lawyers for the Anti-Saloon League were busy, so were attorneys representing Anti-Prohibition (as the combatants were known to the press at the time.) A series of legal challenges were brought before the U.S. Supreme Court during March, 1920, under the general heading of the National Prohibition Cases (State of Rhode Island v. Palmer, 253 U.S. 350), and oral arguments lasted for several days.
At one point Justice Louis Brandeis asked complainants’ attorney Herbert A. Rice of Rhode Island, how perceived problems with the 18th Amendment could be resolved: “The Court is now fully acquainted with the nature of the arguments of the various counsel as to why the new Article has not been validly made. The Court would like to know, in what way do counsel (sic) think that the new Article could be constitutionally made?” Rice replied: “In no way” (in Hennessy, 1923: 342). Hennessy complained in his book (1923:316) that not one of the litigants seemed to understand the meaning of Article V or the 10th Amendment. If the Amendment had been ratified by “The People” in conventions instead of by State Legislatures claimed Hennessy, there would not have been a problem with the Amendment itself. Enforcement would have remained a different problem. However, Justice Van Devanter for the Court, finally handed down a negative Opinion to the complainants on June 7, 1920.
New York attorney Francis X. Hennessy had been following the saga of the 18th Amendment with keen interest, and in 1923, E. P. Dutton published his findings in the first edition of Citizen or Subject. Central to Hennessy’s thesis is an interpretation of the Declaration of Independence of 1776; Article V of the original Constitution of 1787, and the first ten amendments (The “Bill of Rights”) of 1789, with special emphasis on the meaning of the 10th Amendment reserving rights to “The People.” Hennessy contended that the 10th Amendment, coupled with provisions of Article V, reserved all powers not originally granted in the Constitution, to future ratifications by “The People” in conventions.
Throughout his book Hennessy laboriously and repeatedly explained that the reason why the Constitution opens with the line “We the People” is because the Constitution is made in their name in conjunction with the State governments in which “The People” reside. According to the 10th Amendment, the Constitution only contains powers delegated to it by “The People” and the legislatures of states in which “The People” reside. Because powers delegated to the Constitution by “The People” are powers specifically enumerated within the existing Constitution, Hennessy claimed that according to Article V and the 10th Amendment, only “The People” in conventions can grant additional powers by further amendment. All of this would be the subject of intellectual conjecture and interpretation during debate, if the 21st Amendment did not exist. That Amendment gives weight and credence to Hennessy’s thesis, and the history of Hennessy’s thesis is the foundation for this present work.
However, many of the U.S. Founding Fathers were Deists, following the lead of Thomas Paine (author of Common Sense, published January 10, 1776, which both inspired and predated the Declaration.) Once the Christian Crown had been removed as the ultimate source of legal authority, the authors of the Declaration named “Nature’s God” (further identified as “Creator” and author of the “Laws of Nature”), as their replacement source for ultimate authority. They concluded their Declaration by appealing to Nature’s God as Supreme Judge of the World, for “divine Providence” and protection from the British Crown.
It was this same Nature’s God that led the authors of the Declaration to state that they held “these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” Hennessy’s book is a tedious recital of this phase of American history, but it allowed him to build a step-by-step approach for his thesis. His premise is stated in the opening lines of his “Introduction” (1929:vii): “Many Americans are interested in the Eighteenth Amendment. Millions are interested in the American citizen. It seems not to be known that the existence of one flatly denies the existence of the other.”
In 1924 (the year following the first publication of Hennessy’s book), The People’s Rights Publishers of Cincinnati, Ohio published The Constitutional Rights of the People of America. A Short Review of the History of the American Constitution and A Negation of the Eighteenth Amendment, credited to a “Plain American Citizen.” Its own preamble proclaimed: “Citizens of America! Awake! It is Time to Re-light the Lamp of Paul Revere.” Although this anonymous author included original material in the publication, the author also relied heavily upon the work of Hennessy who had taken the approach that the various attorneys who had been heard before the United States Supreme Court in 1920 (State of Rhode Island v. Palmer, 253 U.S. 350), all failed miserably because their challenges had not been focused upon the meaning of Article V and the 10th Amendment.
Hennessy claimed that because the makers of the Constitution were “The People,” and because “The People” had been set free from the British Crown, the People of the United States of America were not subject peoples and they did not owe allegiance to a king. “The People” had set themselves free as individuals by means of the Declaration. “The People” only acknowledged Nature’s God as being superior to them. These former subjects had become independent human beings and that is how their status remained until they agreed to join themselves together as citizens of a new nation called the United States of America. As the supreme law of the USA, the Constitution flowed from the spirit of the Declaration as inspired by the Laws of Nature and Nature’s God. It did not flow from the Magna Carta’s privileges or anything else that belonged to the history of the sovereign British Crown.
In the ordinary run of things, Hennessy’s work (now seen from the obfuscation of time), might appear to be a speculative text similar to one lifted from present-day supermarket tabloids. Belying a conclusion that his work was mere historical revisionism is the tangible existence of the 21st Amendment.
============> It was easy for the writer to see what was entirely wrong with the supposed Eighteenth Amendment. Thirteen State Legislatures had intruded upon the protective silence of our Constitution. Misguided men had rendered to Cæser (sic) a matter that belongs to God. In a matter of morals, a new Parliament of thirty-six Legislatures had attempted to usurp dominion over all of us. (1929: xxvii) <=============
Hennessy continued: “The misguided men did not know their America. Their minds were not the minds of Americans. In their hearts they paid homage to the foreign concept that it is for Cæser (sic) to determine in what matters Cæser may govern men.” (ibid.) Then Hennessy began to quote James Madison: “We have heard of the impious doctrine in the Old World that the people were made for kings, not kings for the people. Is this same doctrine to be revived in the New, in another shape – that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?” (ibid.) Following that recital Hennessy began to quote from Benjamin Franklin: “I have lived, Sir, a long time, and, the longer I live, the more convincing proofs I see of this truth – that God governs in the affairs of men.” (1929: xxviii) (Franklin was the person who had brought Thomas Paine to North America. It was Paine and his fellow Founding Deists who had identified the Creator as Nature’s God in the Declaration.)
Then Hennessy explained the source of his new found satisfaction that his words of 1923 had not been in vain:
============> I wrote my book that the Americans, who constituted a Republic that can endure, might teach us all that we alone, in our conventions again assembled, have the authority to intrude upon great protective silence of our Constitution in all matters of faith or morals or daily personal conduct. I was confident that the citizens of America, instructed by those earlier citizens who knew so well the value of that protective silence, would make the challenge of those earlier Americans to this new usurpation by Cæser (sic).” (1929: xxxviii) <============
In his very next paragraph it is possible to imagine Hennessy bursting into the refrain of “I told you so!” He was writing his new Introduction on Sunday, March 17, 1929, and commenting upon events that had taken place two days earlier: “My confidence has been justified. The challenge of my book came last Friday, on March 15, 1929, from the great State of Rhode Island, where, three hundred years ago, Roger Williams voiced the same political contempt which is embodied in the protective silence of our later Constitution. The challenge came from Providence to Cæser on the Ides of March.” (ibid.) On that day, wrote Hennessy, the State of Rhode Island and Providence Plantations had introduced into its General Assembly a Resolution which embodied all of the main points put forward by Hennessy in his book.
It was at this point in a rediscovery of these events that Hagger began to follow the advice of Ralph Waldo Emerson who wrote: “We are always coming up with the emphatic facts of history in our private experience and verifying them here. All history becomes subjective; in other words, there is properly no history; only biography” (“Essays,” 1841). If Hennessy did not make this up, there had to be a newspaper record of these events. On the day after Hennessy wrote the new Introduction to the second edition of his book citing portions of the Resolution of Rhode Island’s General Assembly, The New York Times (Monday, March 18, 1929) repeated some of Hennessy’s same excerpted quotations concerning this new challenge to the validity of the 18th Amendment. The Resolution of Rhode Island’s General Assembly demanded to know whether the
============> citizens of this nation have ceased to be free citizens and again have become subjects, owing an allegiance to a new and hitherto unknown Parliament, which consists of any thirty-six Legislatures, after a proposal by Congress, and which is vested with unrestrained power to legislate against us and our human rights in all cases whatsoever. (Hennessy, 1929, Introduction; xxix and NYT. “Back Move by State to Void Prohibition”) <============
These questions, reported the Times, were part of the text to a new challenge by the State questioning the validity of the 18th Amendment. The State had instructed its Attorney General to bring the matter before the U.S. Supreme Court, although the State of Rhode Island was not willing to finance this legal action. In other words the Attorney General was authorized by the Resolution to put together an ad hoc and pro bono challenge.
Depicting a last hour debate in the people’s convention at Concord, New Hampshire, where our Constitution received its final adopting vote and our Nation was born on June 21, 1788.
In the Foreword on page vii, Hennessy also described its purpose:
============> For these ends, “Much Ado About Liberty” is first to be played on June 21 in this 1930. For these ends this “Much Ado About Liberty” has been written. For these ends, a few patriotic Americans, emulating the famous Committees which guides [sic] us to our achievement in our episode of 1776, have formed a Citizens Correspondence Committee in New York. It first act is the publication of this “Much Ado About Liberty.” <============
It was Hennessy’s intention that his play would be performed on the same day and month each year following the year 1930.
On November 4, 1930, the “qualified electors” of Rhode Island voted 171,960 to 47,652 “against further retention of the Eighteenth Amendment to the Constitution of the United States of America.” The success of this vote led to the creation of a second Resolution by the Rhode Island General Assembly.
This new Resolution began with its own preamble regarding the defense of liberty in Rhode Island, followed by a general recital of State history which noted that Rhode Island declared her own independence from Great Britain on May 4, 1776 (two months before the Declaration of Independence was signed), and dared to “stand against tyranny alone.” (Resolution 1931:1.) The Resolution added a “been there, tried that” touch: “Whereas, In the course of her history, the State of Rhode Island … attempted to enforce prohibition by law upon her people, and in the year 1886 the Legislature of this State voted to submit to the people the following amendment to the Constitution of the State” and there followed the details of the prohibition amendment approved in April 1887 “by a vote of 15,113 to 9,230.” (Resolution 1931:2) The Resolution continued on to explain that the end result of that Amendment to the State Constitution had proved to be a disaster in that it became unenforceable because “so general was the defiance of the law by the citizens of this State, - so great were the evils which accompanied this prohibitory method, - that in January 1889, the Assembly voted that the previous prohibitory method should be annulled.” (ibid.) That State Amendment was annulled in June of that year by a vote of 28,315 to 9,956.
This second Rhode Island Resolution continued on to explain that based upon this prior experience, the State refused to go along with what it believed to be a wider version of their own misguided experiment that had previously failed with disastrous consequences. It mentioned the instruction in the earlier Resolution that had been given to its Attorney General to test the legality of the 18th Amendment because it had been ratified by three-fourths of the State Legislatures. The State maintained that it had always refused to ratify the 18th Amendment. The Resolution noted that it was:
============> contrary to the spirit of the Constitution, debasing our fundamental code of political rights and duties by the addition of a legislative fiat of a purely sumptuary nature; because said amendment which has so grossly abridged and affected the rights and habits of the people of the United States, was not approved by the people of the United States, or by conventions called by the people of the various states, or by the legislatures of the various states elected to vote upon such an amendment; because said amendment seeks to enforce prohibition by law rather than to promote temperance by education and self-discipline and attempts an experiment never successful in any country at any time. (Resolution: 3) <============
Just prior to this instruction it told its own members of the United States Congress to follow the path advocated by Hennessy (although Hennessy was not named):
============> Resolved; That the Representatives and Senators in Congress from Rhode Island be instructed to initiate, work and vote for legislation requiring Congress to call a convention under Article V of the Constitution of the United States for the purpose of proposing an amendment or amendments to the Constitution amending, modifying, revising, or repealing Article XVIII. (Resolution: 4) <============
The 18th Amendment was not the product of Christian theology, but of Islamic texts in the hands of a Christian Congressman. When Senator Morris Sheppard of Texas proposed the 18th Amendment, it was discussed on December 17, 1917 in both the Senate and House, which is the same day that it was passed. House Democratic Party Representative Edwin Yates Webb of Shelby, North Carolina introduced the 18th Amendment as Joint Resolution 17, and Hennessy reported (1923: 273-274) that Webb made the following declaration:
============> During one of the great battles fought by Mohammed, the flag was shot from the ramparts. A daring and devoted soldier immediately seized it with his right hand and held it back on the rampart. Immediately his right arm was shot off, but never faltering, he seized the flag with his left hand and then too, was instantly shot away whereupon with his bleeding stubs he held the emblem in its place until victory came. With a zeal and a determination akin to that which animated this devotee of the great Mahomet, let us wage a ceaseless battle and never sheathe our swords until our constitutional amendment is firmly adopted and the white banner of real effective prohibition proudly floats over every courthouse and city hall throughout this, the greatest nation upon earth.” (See also U.S. Congressional Record, Vol. 56, p.469.) <============
Hennessy commented (1923:405) that “It was their thought that the doctrine of Christ could be made better Christianity by a substitution of the prohibition of Mohammed for the temperance of Christ.” Hennessy had previously stated (1929:280) that the proposed Constitution had been sent to the One People of America for ratification, not by the States. He quoted Justice Story in Martin v. Hunter's Lessee (14 U.S. 304, 1816). “The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the Preamble of the Constitution declares, by the ‘people of the United States’” (1923:324). What alarmed Hennessy most was the lack of understanding of the Constitution by “The People” of the United States. They had lost their bearings and others were trying to rob them of their freedom. But they had become free because of the Declaration of Independence. He was angry that some compared the Declaration to Magna Carta, which he said was nothing but a grant of privileges by a king to his subjects, while the Declaration was a statement by “The People” concerning the status of their total freedom as individuals. Hennessy took issue with those who tried to wave a white flag over the courthouses and city halls of America in manner similar to surrender but in the name of Islam. He also complained that because of the 18th Amendment, the dog in the RCA logo had become symbolic of “The People” listening to “His Master’s Voice” speaking on behalf of a hitherto unknown Parliament that was attempting to rule them once again. (1923:404)
Although Hennessy cited the U.S. Congressional Record in his 1923 book (which was reprinted without change in 1929, but with a new Introduction added) as the source of his references to Islam and Prohibition, in the Foreword to his 1930 play, Hennessy appears to have concluded that the manner in which Islam had been introduced into this subject only confused the core issue. This appears to be the reason why Hennessy substituted John Wesley for the Congressional Record’s reference to the Prophet Mohammed:
The people’s Constitution left each of us free to prefer the temperance taught by Christ or the prohibition of John Wesley. (Much Ado About Liberty, vi.)
Mistakes of the past are often repeated when lessons of the past are totally forgotten. However, there seems to be a scarcity of public, academic and legal knowledge about the historical background to the 18th and 21st amendments.
It is due to constitutional ignorance that encroachments upon individual rights are continually attempted by means of proposed amendments that seek ratification by state legislatures instead of “The People” sitting in conventions. Yet the record of the 18th and 21st Amendments is plain. Any proposed constitutional amendments that have an impact upon the personal lives of American citizens will have to pass the same test that eventually brought down the 18th Amendment. Article V and the 10th Amendment require that articles of that type are to be referred for ratification by “The People” sitting in conventions.
Modern examples of religiously motivated conflicts with the penumbra of the 10th Amendment can be seen today in the various attempts to prevent the right of female citizens to obtain abortions and in a new Constitutional definition of marriage to mean a heterosexual union. However, as the historical record of the 18th and 21st Amendments plainly show, both of these attempts to interfere with personal liberty will require ratification by “The People” sitting in conventions before they can succeed. Citizens of the United States owe a lasting debt of gratitude to the memory of attorney Francis X. Hennessy of New York his literary legacy that seeks to preserve our individual freedom under law.
Article References
Emerson, R. W. 1841. “Essays,” (First Series. History). Bartlett’s Familiar Quotations, 16th ed. (Justin Kaplan, ed.) New York: Little, Brown, 1992, p. 431.
Hennessy, F. X. 1923. Citizen or Subject, New York: E.P. Dutton (second edition with new Introduction published in 1929).
Hennessy, F. X. 1930. Much Ado About Liberty. A Play. New York: A. W. Stevens.
The New York Times, March 18, 1929 (News Section: “Back Move by State to Void Prohibition”.)
State of Rhode Island v. Palmer, 253 U.S. 350 (1920)
State of Rhode Island. (1st Resolution 1929.) 2nd Resolution 1931. H-805 - January Session.
Wills, G. 1979. Inventing America: Jefferson’s Declaration of Independence. New York: Random House.