SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM
“For my own part, I acknowledge a thorough conviction that Amendments
which may, upon mature consideration, be thought useful, will be
applicable to the organization of the government, not to the mass of
its powers.” (_Fed._ No. 85.)
This was the statement of Hamilton to the American people when he was
asking them, about to assemble in their conventions, to make their
First Article grants of enumerated powers to interfere with their
individual freedom and to make their Fifth Article mode of procedure,
in which they could exercise CONSTITUTIONALLY their exclusive ability,
assembled again in “conventions,” to add or subtract from that grant of
enumerated powers of that kind.
When he used the words, “mass of its powers,” he referred directly to
that First Article grant. It contains all the powers that were ever
given to any government to interfere with the individual freedom of
the American citizen. He knew what the Supreme Court clearly declared
in United States v. Cruikshank, 92 _U. S._ 542, that, beyond the scope
of its enumerated powers, there is _no_ government of the American
citizens. He knew that, in the geographical territory which is each
state, there would thereafter be two governments, the government of
enumerated powers, governing the American citizens in that state under
the First Article grants from the American citizens, and the state
governments, governing the citizens of the state, under whatever grants
of national power its state citizens gave that government.
The two governments in each state stand in their respective spheres
of action in the same independent relation to each other, except
in one particular, that they would if their authority embraced
distinct territories. That particular consists in the supremacy of
the authority of the United States when any conflict arises between
the two governments. (Justice Field, in Tarble’s case, in the Supreme
Court, 13 _Wall._ 397.)
With such knowledge, he would have found it impossible to make the
blunder of assuming that either government could give or join with
governments in giving to the other any power to interfere with the
citizens of the grantee in their enjoyment of individual liberty.
He knew that, “In our republican forms of government, the absolute
sovereignty of the nation is in the people of the nation; and the
residuary sovereignty of each state, not granted to any of its public
functionaries, is in the people of the state.” (Story, 1 _Ell. Deb._
65.)
When Hamilton stated, in those days of 1788, his conviction that new
Articles would relate to the “organization of government and not to
the mass of its powers,” he was epitomizing the common knowledge of
everyone, at that time, that the new Constitution was both _federal_
and _national_. He was predicting that the power to interfere with
individual liberty, to the extent which Americans had surrendered
any power _of that kind_ to their governments, had been so wisely
distributed, between the government of the citizens of America and the
political entity which was each state, that it would never be necessary
for the citizens of America to alter that distribution by giving any
more to _their_ government. That is why he prophesied that no new
Article of the kind which only “conventions” of those citizens can
make, Articles changing the “mass of powers” granted to that government
by the First Article, would ever be needed.
And we recall that this conviction probably influenced the last day
remembrance in the Philadelphia Convention by Madison and himself,
that the Fifth Article should also contain some reference to the state
legislatures and their future exercise of their existing abilities to
make _federal_ or declaratory Articles, which do not change the “mass
of powers” in that First Article grant and do not relate to government
interference with the individual liberty of the American citizen.
The statement of Hamilton was not meant as a prophecy. It was the
result of a great mind reasoning from cause to probable effect. As we
come down through the century or more that follows that statement and
reach the beginning of the year 1917, we pay our tribute to a mind
which could reason so correctly _as to what would happen for more
than a hundred years_. We shall find that never again, from 1787 to
1917, did experience find it necessary that the “conventions” of the
American citizens, the “conventions” named in the Seventh and the Fifth
Articles, should again be assembled to alter, as they alone can alter,
the mass of enumerated powers to interfere with their own individual
liberty, which they granted in that First Article.
It is a striking commentary upon the ability of Hamilton and his
generation, when contrasted with our modern “constitutional thinkers,”
that he knew and appreciated _what would happen in a century to come_,
while they have not understood what _had_ happened in a century that
had gone, although the record of that century was spread out before
them to read. None of _our_ leaders _have_ appreciated the fact that
every one of the first seventeen Amendments to our Constitution _was
of the kind_ that state legislatures had ability to make before our
Constitution was even drafted at Philadelphia, because all were
_federal_ (or declaratory) Articles and were not _national_ Articles.
If they had known, _after_ these seventeen Amendments were history,
what he prophesied _before_ the Constitution itself was adopted, the
story of the last five years might not have been what we shall learn
hereafter that it was.
That _we_ may know, _of our knowledge_, what _he_ prophesied and
what _they_ entirely overlooked and ignored, let us briefly examine
the nature of those seventeen Amendments. Thus we will learn why
governments, known at Philadelphia in 1787 to be incompetent to make
_national_ Articles, could and did make those seventeen Articles in the
_constitutional_ mode of procedure which the Fifth Article provided
for the exercise of their existing ability limited to the making of
_federal_ or declaratory Articles.
The first ten Amendments were declarations insisted upon by the
American citizens, assembled in “conventions” where we have sat, as
specific security against government usurpation of power over their
individual freedom. The Supreme Court has repeatedly declared that
everything in those ten Amendments was in the Constitution when it
was ratified by those “conventions” and that the Amendments simply
declared what the will of the people themselves, assembled in those
“conventions,” had already established as the fundamental law in
America. Certainly no man would challenge the prophecy of Hamilton
on the theory that any one of those Amendments added to the mass of
government powers to interfere with human freedom. They are, each
and every one of them, the declaration that government cannot do
“this” and government cannot do “that.” So far from being _national_
Articles, the kind which only “conventions” of American citizens could
or can make, the kind which tell government that it can command the
American citizens on this or that subject, they are all Articles which
tell government that it _cannot_ command the American citizen. And,
for the further security of the individual freedom of the American
citizen, _a security never needed more than in this year_ 1923, the
Tenth Declaration emphatically declares _who_ it is that RETAINS the
_exclusive_ ability to alter, in one iota, “the mass of powers” (over
the individual freedom of the American citizen) granted _by them_ in
the First Article and the exclusive ability to exercise any power _of
that kind_ over them, which was not granted in the First Article. Who
can deny that, stated in our own words, this is what we find in the
plain declaration of the Tenth Amendment? “We, the people of America,
assembled in our conventions, have granted to the _American_ government
enumerated powers of the First Article. They are the only powers _of
that kind_ delegated to any government, by which it can interfere
with our individual freedom in our capacity as American citizens. All
powers, which the citizens of each state have hitherto had and which
we have not taken from them herein, we have left with them; and the
citizens of each state can grant so much of said powers as they please
to their own government to govern them as citizens of that state.
All other powers, outside those we have granted to our government to
interfere with us and those we have left to the citizens of each state
for their own respective exercise, we reserve exclusively to ourselves,
in our capacity as citizens of America. And, if any government should
deem it wise that any one of these powers (which we so reserve
exclusively to ourselves) should be exercised, we have provided in
the Fifth Article the mode of procedure in which we, assembled in
our conventions, can CONSTITUTIONALLY exercise it or grant it to the
government which wants to exercise it.”
The powers the people have given to the General Government are named
in the Constitution, and all not there named, either expressly or by
implication, are reserved to the people and can be exercised only by
them, or upon further grant from them. (Justice Brewer in Turner v.
Williams, 194 _U. S._ 279.)
Later herein we Americans, fresh from the “conventions” which demanded
these declarations for the better protection of individual liberty,
are going to hear expounded a doctrine, which would mean that these
declarations were themselves the _American_ Magna Charta. We are going
to hear, to our amazement, that these declarations were a compact
between an omnipotent government and its subjects, ourselves, who
have always imagined that we were “citizens” and not “subjects.” We
are going to hear, to our utter incredulity, that these declarations
are the promise of a government--itself omnipotent over ourselves and
_our_ Constitution and _our_ government which we thought to be the
supreme government in America--that we, the subjects of that omnipotent
government, may have certain privileges which this omnipotent
government will not take from us.
When first we shall hear this 1917 resurrection of the Tory concept
that government is master and Americans are “subjects,” that government
is the state and we are its assets, we shall naturally be astounded and
indignant that even a few inhabitants should still retain what Madison
called “the impious doctrine” of the Old World, that people are made
for governments, not governments for the people. Quickly, however, we
shall become alarmed to find how wide-spread, among the “constitutional
thinkers” of our own generation, is the complacent acceptance of the
Tory concept and to learn that, when its application in any given
instance injures a client of one of those constitutional thinkers,
no matter how he may argue against the application in the particular
instance, he neither knows nor uses for his client the fact that the
Statute of ’76 repealed the doctrine on which Magna Charta rested,
the Tory concept that government is the state and that we are its
“subjects.”
It will be difficult for us to understand these leaders of our
generation. In addition to what we have just lived through with
the early Americans, these leaders will have before them countless
decisions of the Supreme Court, flatly contradicting the Tory concept
on which all these leaders reason. “The concessions of Magna Charta
were wrung from the King as guarantees against the oppressions and
usurpations of his prerogatives.... The omnipotence of Parliament over
the common law was absolute, even against common right and reason. The
actual and practical security for English liberty against legislative
tyranny was the power of a free public opinion represented by the
Commons.” We are going to find many of _our_ leaders with the fixed
Tory concept that there is in America a legislative government, unknown
to the generation of Americans who created all government in America,
and that this omnipotent government can do whatever it pleases, without
any constitutional restraint, with _almost_ everything in America,
including ourselves and our Constitution and our American government.
Curiously enough, we are going to be told that the one thing, in
which this omnipotent legislative government falls short of absolute
omnipotence, has nothing to do with any individual human freedom, but
is its inability to change the equal representation of every state
in our Senate. It will be quite amazing to us to hear these men, not
_proving_ this Tory concept but stating it as axiomatic American law
and on it basing their every argument and audaciously claiming that
our Supreme Court has no right even to consider whether it is so or
not. But there will be something to alarm us even more. We will find
_our_ other “constitutional thinkers,” by circumstances obliged to
challenge some particular deduction from this Tory concept, without
any knowledge of the invincible facts which challenge the concept
itself. To most of these men it will be as if the Statute of ’76 had
been repealed and the result of our Revolution reversed, in 1787, by
the very “conventions” in which we have sat. It will be our amazement
to hear that these “conventions” never created the citizen of America
but that the American people, assembled therein, voluntarily made
themselves “subjects” of the omnipotent government. And these modern
“constitutional thinkers” will discuss this omnipotent government on
the basis that those “conventions” made that particular government
(not the one to whom the First Article grants its powers) attorney in
fact for the general people of America, authorized to interfere with
their individual freedom, “on all matters whatsoever.” To most of these
men, it will be as if the Supreme Court, in countless ways, had _not_
declared:
In this country, written constitutions were deemed _essential_
to protect the rights and liberties of the people against the
encroachment of power delegated to their governments, and the
provisions of Magna Charta were incorporated into bills of rights....
Applied in England only as guards against executive usurpation and
tyranny, here they have become bulwarks against arbitrary legislation;
but in that application, as it would be incongruous to measure and
restrict them by the ancient customary English Law, they must be
held to guarantee, not particular _forms of procedure_, but the very
substance of individual rights to life, liberty and property.
Of course, fresh from the conventions of old, we shall know that these
men are talking nonsense. We shall know that the last two quoted
statements from the Supreme Court, in Hurtado v. California, 110 _U.
S._ 516, are but the expression of what was once the common knowledge
of a people then “better acquainted with the science of government
than any other people in the world.” But, as our knowledge shall be
as the knowledge of the Americans of old, who fought an eight year
war of sacrifice to make any such Tory concept in America absolute
nonsense, it is well for us, while we are examining the nature of the
first seventeen Amendments of our Constitution, to keep in mind one
thing, which we now know and which, if it had not been forgotten, would
have prevented the monumental blunder of the generation in which we
ourselves are the American citizens. This one thing is the fact that
the Constitution, made in the conventions we have just left, is a
_federal_ and a _national_ Constitution. That fact and its influence
upon the Convention, which framed the Fifth Article, and on the
“conventions” of the American citizens, which made that Article, led
them to provide, in their Fifth Article, the CONSTITUTIONAL mode in
which state governments could exercise their existing limited abilities
to make federal and declaratory Articles, like all the Articles of 1781
and like the first seventeen Amendments, _and also_ to provide therein
the _constitutional_ mode in which the “conventions” of the American
citizens could exercise their exclusive ability to make NATIONAL
Articles, like the First Article and the supposed new Eighteenth
Amendment.
Having fixed this clearly in our mind, we now proceed to examine the
nature of the remaining Amendments that were made, prior to 1917.
The Eleventh Amendment gave no power of any kind to anyone. It
simply declared that the Court of the American nation could not have
jurisdiction of law suits against one of the states “by citizens of
another state, or by citizens or subjects of any foreign state.” We
commend, however, to the modern “constitutional thinkers,” whose Tory
concept we shall meet later, this early American recognition of the
fact that, in America, _we are “citizens.”_ It will be noticed that
this Eleventh Amendment, declared by the President to have become part
of the Constitution on January 8, 1798, speaks of the “citizens” or
“subjects” of any foreign state but speaks only of “_citizens_” in
America.
The Twelfth Amendment likewise has naught to do with power of
governments over human liberty. It deals solely with the manner in
which the Chief Executive of America shall be chosen.
The Thirteenth, Fourteenth and Fifteenth Amendments are the famous so
called Slavery Amendments. Even the modern “constitutional thinker”
of 1917 and 1920, no matter how Tory his concept, will hardly dare to
claim that these Amendments give government power to interfere with the
rights which the Creator gave to the human being.
On the most casual examination of the language of these Amendments,
no one can fail to be impressed with the one pervading purpose found
in them all, lying at the foundation of each, and without which none
of them would have been even suggested; we mean the _freedom_ of the
slave race, the security and firm establishment of that _freedom_,
and the protection of the newly-made _freeman_ and _citizen_ from the
oppressions of those who had formerly exercised unlimited dominion
over him. (Slaughter House cases, Supreme Court, 16 _Wall._ 36 at p.
71.)
Of these Amendments, in the Civil Rights Cases, 109 _U. S._ 3, the
Supreme Court again said that “they abolished slavery, and established
_universal freedom_.”
When, therefore, in the year 1920, we shall hear these Amendments,
which establish _universal freedom_, cited as Articles of exactly the
same nature as a supposed new Article, directly interfering with the
freedom of the American citizen on a matter not enumerated in the
First Article, we shall be rather surprised. But we shall be more
than surprised, when we hear the reason of the modern “constitutional
thinker” why _both_ Articles are within the power of the state
governments, who are his clients, to put into our Constitution. Not
knowing that our Constitution is a _federal_ as well as a _national_
Constitution, not knowing that his government clients always had the
ability to make _federal_ Articles and never had and have not now the
ability to make Articles which interfere with human freedom, we shall
find him stating, as axiomatic, that the slavery Amendments, which
_establish_ universal freedom, and the supposed Article of 1917, which
_interferes with_ freedom of the individual, are identical, for the
reason that both affect the individual and his rights and liberties.
On the remarkable nature of this identity, that one _secures_ and the
other _interferes with_ individual _liberty_ and, therefore, both
_affect_ individual liberty, we shall find that he bases the Tory
concept that state governments can do as they please with all liberties
of the American citizens. While his theory will serve only to amuse
us, we commend, to his reading, this extract from a better _American_
lawyer:--“The legislature may not confer powers by law inconsistent
with the rights, safety, and liberties of the people, because no
consent to do this can be implied, but they may pass limitations _in
favor_ of the essential rights of the people.” (Woods appeal, 75 _Pa._
59.)
The Sixteenth Amendment simply removes, from one of the great powers
granted to Congress by the citizens of America in their First Article,
a _federal_ limitation upon its exercise, a limitation entirely for the
benefit of the states which are political entities.
In the “conventions” we have just left, the First Article grant of
power to the new government to impose direct taxation was the object
of incessant attack. No prerogative of government is more cherished
by any government than its ability to exact financial tribute from
human beings by means of taxation. Under the old federation of states,
although the _federal_ government needed money, it was without any
power of taxation. All it could do was to ask the various state
governments to supply it with the money. Article VII of the “Articles
of Confederation” provided that the expenses of the federal government
“shall be defrayed out of a common treasury, which shall be supplied by
the several states, in proportion to the value of all land, within each
state, granted to or surveyed for any person, as such land, and the
buildings and improvements thereon, shall be estimated, according to
such mode as the United States in Congress assembled shall, from time
to time, direct and appoint. The taxes for paying that proportion shall
be laid and levied by the authority and direction of the legislatures
of the several states, etc.”
Section 8 of the First Article of the proposed new Constitution read
that “The Congress shall have power to lay and collect taxes, duties,
etc.” At Philadelphia, in 1787, a tremendous fight was made against the
proposal of this grant by the citizens of America to their government.
Many delegates at Philadelphia, who had the financial welfare of their
particular state government at heart, contended that, if the new
government were given the power of direct taxation of the people, the
new government would leave the people with no money to be collected
by the state governments for their own purposes. The _nationalists_
at Philadelphia, however, knew that a _national_ government without
power of direct taxation over its own citizens would be a helpless
government. Therefore, they insisted that the proposed grant of this
power remain in the First Article. As a concession to the opposition
made on behalf of the state governments, there was added to the
proposed First Article a purely _federal_ limitation on the exercise of
the _national_ power of direct taxation. This federal limitation, on
behalf of the states and their governments, read: “No capitation, or
other direct, tax shall be laid, unless in proportion to the census or
enumeration hereinbefore directed to be taken.”
In the conventions of the citizens of America, the friends of the
respective state governments made every effort to defeat the First
Article grant of national power to impose direct taxation upon the
citizens of America.
In the Virginia convention, from Randolph and from Henry, arguing
respectively for and against the grant, we get our certain knowledge
that the apportionment limitation on the exercise of the granted
power was a purely federal limitation aimed entirely to secure to the
respective state governments the just amount of the moneys which could
be collected by taxation from the Americans living in the respective
states.
Randolph argued: “The difficulty of justly apportioning the taxes among
the states, under the present system, has been complained of; the rule
of apportionment being the value of all lands and improvements within
the states. The inequality between the rich lands of the James River
and the barrens of Massachusetts has been thought to militate against
Virginia. If taxes could be laid according to the real value, no
inconvenience could follow; but, from a variety of reasons, this value
was very difficult to be ascertained; and an error in the estimation
must necessarily have been oppressive to a part of the community.
But, in this new Constitution, there is a more just and equitable
rule fixed--a limitation beyond which they cannot go. Representatives
and taxes go hand in hand; according to the one will the other be
regulated.... At present, before the population is actually numbered,
the number of representatives is 65. Of this number, Virginia has a
right to send ten; consequently she will have to pay ten parts out
of sixty-five parts of any sum that may be necessary to be raised by
Congress. This, sir, is the line.” (Randolph, 3 _Ell. Deb._ 121.)
As to the granted power of direct taxation, Henry argued: “We all agree
that it is the most important part of the body politic. If the power of
raising money be necessary for the general government, it is no less so
for the states.... The general government being paramount to the state
legislatures, if the sheriff is to collect for both--his right hand
for Congress, his left for the state--his right hand being paramount
over the left, his collections will go to Congress. We shall have the
rest. Deficiencies in collections will always operate against the
states.... Congress will have an unlimited, unbounded command over the
soul of this Commonwealth. After satisfying their uncontrolled demands,
what can be left for the states? Not a sufficiency even to defray the
expense of their internal administration. They must therefore glide
imperceptibly and gradually out of existence.” (Henry, 3 _Ell. Deb._
148 _et seq._)
The Sixteenth Amendment merely removed, in one respect, this _federal_
limitation upon the exercise of the national power of direct taxation
granted by the First Article. The Amendment read: “The Congress shall
have power to lay and collect taxes on incomes, from whatever source
derived, without apportionment among the several states, and without
regard to any census or enumeration.” This Amendment, being nothing but
a change in the _federal_ aspect of the Constitution, being a change
in the protection given to each state as a political entity, was an
Amendment which the state legislatures, each acting as attorney in fact
for its own respective state, were entirely competent to make.
The Seventeenth Amendment has no relation to human freedom. It merely
provided that the state governments should no longer elect the august
Senators in the American Congress, some of whom we shall meet later
herein.
This last Amendment, prior to 1917, provided that those Senators should
be thereafter elected in our states by ourselves, the American people.
Curiously enough, it is from the Senate in which they sit that came
the proposal which caused the trouble which is obliging us to educate
ourselves to find our “when” and “how” between 1907 and 1917 we became
“subjects” instead of keeping our status as citizens of America.
Early in our education (p. 26) we were informed that our public
statesmen and constitutional thinkers brought to the year 1917 the
false “knowledge” that legislatures in America, if enough combined,
had the omnipotence over individual freedom, which the early Americans
denied to the British Parliament. Their false “knowledge” was
undoubtedly caused by their failure to appreciate, if they knew or
remembered, that America is a _national_ union of men while there is
also a subordinate and _federal_ union of states. Ignoring this simple
fact, they also ignored the important fact that the Constitution is
both _national_ and _federal_ and contains Articles _of both kinds_.
Blind to both important facts, they acquired their false “knowledge”
from the fact that the “legislatures,” to whom they ascribed
omnipotence over individual freedom, had made the first seventeen
Amendments.
The fallacy of their deduction is mathematically demonstrable.
A constitutional Article which gives to government any power to
interfere with individual human freedom IS the constitution of
government of men. That is why the First Article WAS the constitution
of the government of the nation of men. And, in turn, _that_ is why
the legal necessity of having it made by the men themselves, in their
“conventions,” was “felt and acknowledged by all” Americans.
If one doubts that the First Article WAS the constitution of the
government of men, test the truth of the statement in this way. First,
assume that the “conventions” made no Article save the First. Then ask
yourself if the whole American people would not have constituted their
government with its great enumerated powers to interfere with their
individual liberty. In the second place, make exactly the opposite
assumption. Assume that the “conventions” made all the Articles from
the Second to the Seventh, both inclusive, _but did not make the First
Article_. Then ask yourself whether the whole American people would
have constituted any government with a single power to interfere with
their individual freedom.
Let us now apply exactly the same test to each of the first seventeen
Amendments and then to the supposed Eighteenth Amendment.
Take any one of the first seventeen Amendments and assume that
anything _new_ which it put into the Constitution was the entire
Constitution. Then ask yourself whether, if the Constitution
consisted solely of the new matter in the Amendment, there would be
any government of the whole American people with a single power to
interfere with their individual human liberty. Take _all_ the seventeen
Amendments and assume that any change all of them made was the entire
Constitution. Then ask yourself whether, if any new matter in the
seventeen Amendments composed the entire Constitution, would there be
any government of the whole American people with a single power to
interfere with their individual human liberty.
Now make the same assumption about the supposed Eighteenth Amendment.
Assume that it is the entire Constitution and that there are no other
Articles. Immediately it is seen that, if the Eighteenth Amendment
were the entire Constitution, there would be a government of the whole
American people with an enumerated power to interfere with their
individual human liberty.
Now we see the fallacy of the false “knowledge” which our statesmen
and constitutional thinkers brought to the year 1917. Now we know
the marvelous foresight of Hamilton when he stated his conviction
that Amendments would relate to “the organization of the government,
not to the mass of its powers.” None of the seventeen Amendments did
relate “to the mass of its powers” to interfere with individual human
liberty. That is why state legislatures, representing the federal
members of the union of states, could make the federal or declaratory
seventeen Amendments. The fact that those “legislatures” in 1787 could
make Articles of that kind, as they had made them in 1781, did not
deceive the Americans at Philadelphia into a false “knowledge” that
those “legislatures” _could_ make the First Article with its enumerated
powers to interfere with the individual freedom of the members of
the nation of men. The fact that the same “legislatures,” still
representing the members of the subordinate union of states, still
could make declaratory or federal Articles, _and had made seventeen
Articles of that kind_, not one of which constituted new government
power to interfere with individual liberty, should not have misled the
statesmen and constitutional thinkers of our generation.
But it did.
CHAPTER XV
THE EXILED TORY ABOUT TO RETURN
We have now educated ourselves accurately to know, at the beginning of
1917, what was our own relation to all governments and what was the
relation of those governments to one another. With certainty, we know
that those relations, at the beginning of 1917, were exactly what they
had been at the close of 1790. It is amazingly important that we never
forget that particular knowledge, when reading the story of what has
happened since the beginning of 1917.
With certainty, through our education we know that, _at both times_,
the following was our own relation to all governments and the relation
of each of them to the others.
No individual in America was a “subject” of any government or
governments. Each individual was a “citizen” of the nation which is
America. The citizens of America, as such citizens, had given to
their only government its enumerated powers to interfere with their
individual freedom. Those American citizens had given these enumerated
powers by direct grant from themselves, in the only manner, in which
they can act effectively on such a subject, by assembling in their
“conventions.” Those American citizens had made it the imperative law
of America that no new power _of that kind_ (to interfere with their
freedom) could be created except by the new exercise of their own
ability _in the same manner_.
The very essence of the wisdom and _efficiency_ of the manner of
the first exercise was that the exercise was by “_conventions_” of
themselves, chosen by themselves, _after_ specific grants had been
proposed to them to be made by them. These “conventions,” chosen from
among themselves for the one purpose of saying “Yes” or “No” to the
proposed grants, had made those grants in the only way in which the
American people “can act safely, effectively and wisely” in the making
of such grants. In their Fifth Article, made in the first “convention”
exercise, they had mentioned the very “convention” method in which
they were then assembled to make their First Article grants. Thus,
they made that method CONSTITUTIONAL for future exercise of their own
exclusive power to make grants _of that kind_. Thus they had secured
their liberty against any attempt by government to interfere with
their individual freedom, as American citizens, except in the matters
named in the enumerated powers of the First Article. In this way, they
had secured their liberty, in their capacity of American citizens,
against any attempt by other governments than their only government at
Washington, even in the matters enumerated in the First Article.
Nearly every individual in America was also a citizen of a state. In
each state, _its_ citizens had vested the legislative government of
the state with limited powers to interfere with the individual freedom
of those within the jurisdiction of that state. The limitations upon
the power of each state government to interfere with those within its
own jurisdiction were, firstly, limitations imposed by the citizens
of America in _their_ Constitution upon the power of each state to
govern itself; secondly, the limitations imposed by the citizens of
each state in their own constitution; and, thirdly, the limitations
imposed by the traditional American principle that no government,
without limit, can do what it will with the individual freedom of
its citizens. In each state, subject to those limitations, its own
citizens were exclusively competent to determine the exact quantum of
ability which its own legislative government should have to interfere
with the individual human freedom of those within its jurisdiction.
No government or governments outside each state could interfere with
the individual freedom of its citizens, _as such citizens_, in any
matter. No outside government at all, except Congress, could interfere
with their freedom, as human beings, in any matter. The legislative
governments of the other states, either singly or collectively, on _no_
matter, could either exercise themselves or give to any government a
single power to interfere with the human beings in each particular
state. The one American government, at Washington, could only interfere
with those human beings on the matters enumerated in the First Article.
No new ability in that government so to interfere with them could be
granted except by direct grant from the citizens _of America_ assembled
in their “conventions.” The Fifth Article had been the command of the
citizens of America that only a “Yes” from three fourths of those
“conventions” of _themselves_ should be valid to add a new power over
themselves to those enumerated in their First Article.
From 1776 to 1917 it had been the _obeyed_ fundamental law in America
that no government could acquire, from another government or from other
governments, any power to interfere with the individual freedom of the
human beings within its jurisdiction.
The human beings in each state were members or citizens of the
nation which is America. They were also, in each state, the members
or citizens of the nation which is that state. The states were also
members of their own federation, whose _federal_ government had been
continued by the citizens of America. In its personnel, that _federal_
government was identical with the _national_ government of those
citizens of America. In the Fifth Article, the citizens of America
had recognized and mentioned the existing ability of the states, as
political entities, to make constitutional Articles of a _federal_
nature. For that reason, the Fifth Article had been the command of
the citizens of America that, when the states exercised their limited
ability, a “Yes” from the legislatures of three fourths of the states
should be effective to make a _federal_ Article.
In the matter of interference with individual human freedom, so far as
experience tells the story, there had continued from 1776 to 1917 the
knowledge of the legal fact, made basic American law by the Statute of
’76, that no government could get any _national_ power except by direct
grant from its own citizens, and that no government could exercise any
_national_ power over any but those in its own jurisdiction and then
only by direct grant of that power from its own citizens.
We know that this was the wonderful system of constitutional government
under which Americans had lived from 1790 to 1917. We know that the
Americans, who were our predecessors in 1787, had prescribed that
system as best calculated to protect their human liberty and our
own from outside aggression and from usurpation of power by their
governments and our own. Educated with them, from the day when they
were all subjects of a legislative government, we know much of their
struggle to rid themselves forever of the status of “subject” and to
become free men. In that education, however, we have dwelt but little
so far upon one phase of that struggle. At this point, it is essential
that we educate ourselves briefly but accurately on that one phase.
Whenever government exists, even government limited to those powers
thought by its citizens necessary to secure human liberty, the weakness
of human nature makes it certain that the exercise of granted powers
will not always be for the common benefit of the citizens who grant
them. When the government is the State and human beings are its
“subjects,” that weakness is usually more apparent. As a result, in
every country the rich and powerful largely secure the actual control
of government. That they may entrench themselves in its control
and the exercise of even its lawful powers, they lavish favors on
a class actually large in number but comparatively constituting a
small minority of the people of the country. For this class, it is of
material advantage that government should be the State and command the
people as its “subjects.” When a man is born or educated as a member of
this minority, it is beyond the experience of the human race that his
mental attitude should not regard the relation of “subject” to ruler as
the proper relation of human being to government.
In those earlier days, in whose experience we have just been educated,
the human beings in America, who had that mental attitude, were
distinguished from the Americans by the name “Tories.” Throughout this
book it is that mental attitude which we characterize as “Tory.” It is
those who display that mental attitude whom we call “Tories.”
At the time of our Revolution it is a historical fact that about one
third of our population was Tory in its mental attitude. Many of the
Tories, quite possibly most of them, were actuated by a sincere and
deep conviction that it was better for every one that human beings
should be subjects. That conviction had been the basis of nearly all
science of government for centuries. It is really a remarkable fact
that our history should show, from their recorded statements and
writings, so many men in 1787 accurately grasping the fallacy of that
historical doctrine that men were made for kings or governments.
In our education, we now grasp accurately that the Americans, who
ended forever the status of “subject” in America, in their Revolution,
had not only to contend with their former omnipotent government but
also with one third of their own population, the Tories. When that
Revolution had succeeded, when the Statute of ’76 had actually been
made the basic law of America, many Tories, in the natural course
of events, became citizens of the particular state, now a free
republic, in which they lived. When the Convention of 1787 assembled
at Philadelphia, when the respective “conventions” in each state later
assembled, many delegates were men with a known leaning to the Tory
mental attitude. It is not to be understood that, by reason of this
fact, their loyalty to the new institutions of their country was not
sincere. One of the great liberties secured by those new institutions
was the right of the human being to think and talk as he pleased as to
what is the mode of government best designed to secure the happiness
of men. As a matter of fact, when those “conventions” assembled, many
of our most prominent Americans of the Revolution had begun sincerely
to doubt whether the American people had _yet_ learned enough to profit
most by their legal ability now to dictate to all their governments how
much power each government should have. It is the record of impartial
history that the people’s distribution of all surrendered power of a
_national_ kind, the grant to the new government and reservation to the
old state governments, was dictated by two opposite factors. The wise
and able leaders, whether their mental attitude was American or Tory,
knew that the general government must get a grant of much power of that
kind, if it were successfully to promote the welfare of the American
people. On the other hand, they knew with certainty that such grants
must be specified and enumerated and limited, or the American people
would make no grant at all. It was, as it still is, the basic law of
America that grants _of that kind_ could only be obtained directly from
the people themselves. The American mental attitude, that citizens
and not governments shall define the extent of government power to
interfere with individual freedom, was the controlling factor when the
Constitution made its great distribution of all surrendered powers.
If we go back to the “conventions” of those who established the
system, we find a striking fact. In those “conventions” there were
many men whose personal opinion always had been and still was in
full accord with the Tory concept of what _ought_ to be the relation
of government to human being. But these men, with that Tory concept
of what government ought to be, were just as keenly aware as were
those with the American concept, that the Tory concept had forever
disappeared from American law. Whenever any suggestion was based upon
the Tory concept, these very men were among the quickest to perceive
and the most strenuous to insist that the suggestion could not be met
because the American concept had displaced the Tory concept forever
in America. If our modern leaders, who have the same Tory concept of
what government _ought_ to be, had evinced the same perception and the
same insistence, the story of the last five years would be a different
story. Because these leaders have had no knowledge of what America is,
we average Americans must now come straight from the “conventions” in
which the Americans established the Constitution to secure individual
freedom and we must educate ourselves in the story of the last five
years in which our governments and our leaders have calmly assumed that
citizens are subjects.
CHAPTER XVI
THE TORY “EIGHTEENTH AMENDMENT”
In the closing month of 1917, the American people had been for eight
months participants in the World War. In that winter, under the
direction of their only government, exercising its war power, they
were marshalling all that they had to win that war and to win it
quickly. The mind of the people themselves was concentrated on that one
purpose. The response of the average American citizen to the call of
his government, the assembling of millions of average American citizens
as soldiers for that war, the outpouring of their money by other
millions, should have made it impossible that the government servant of
those American citizens should have entirely forgotten and ignored the
knowledge of the “conventions” of 1787, that the American is a citizen
and not a subject. Even if their personal experience had made them
members of the class which naturally have the Tory mental attitude, the
spirit of 1917 should have awakened our legislators from their wrong
Tory concept of our American basic law. If plain words were needed to
teach them that basic law, only ten years earlier the Supreme Court had
stated that law in words which even a child can understand.
The powers the people have given to the general government are named
in the Constitution, and all not there named ... are reserved to the
people and can be exercised _only by them_, or upon further grant
_from them_. (Justice Brewer, in the Supreme Court, 1907, Turner v.
Williams, 194 _U. S._ 279.)
Yet the statesmen of America, when its citizens were offering their
lives and their all, chose that December of 1917 to propose that
legislative governments, which have never been the governments of the
American citizen, should exercise one of those reserved powers of “the
people” and should give to _the_ legislative government of the American
citizens future ability to exercise that same power, although American
citizens had expressly reserved the power to themselves exclusively.
In December, 1917, as in January, 1790, the American Congress was the
only legislative government of the American people.
All powers _of a national character_ which are not delegated to the
national government by the Constitution are reserved to the _people_
of the United States. (Justice Brewer, in the Supreme Court, Kansas v.
Colorado, 206 _U. S._ 46 at p. 90.)
Outside of _that_ legislature, American citizens have _no_ legislative
government.
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. (Justice Waite, in the
Supreme Court, United States v. Cruikshank, 92 _U. S._ 542.)
In the Senate, on April 4, 1917, Senator Sheppard of Texas had
introduced a Resolution, known as Senate Joint Resolution 17. The
Resolution itself, apart from the proposed new constitutional Article
which the senator suggested that legislative governments should make,
read as follows: “_Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled (two thirds of
each House concurring therein), That_ the following amendment to the
Constitution be, and hereby is, proposed to the States, to become valid
as a part of the Constitution when ratified by the legislatures of the
several States as provided by the Constitution:”
The proposed new national Article, which this 1917 Resolution suggested
should be made by legislative _governments_, originally and in April,
1917, read as follows:
* * * * *
“Article--.
“SECTION 1. The manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, and the exportation
thereof from the United States and all territory subject to the
jurisdiction thereof for beverage purposes are hereby prohibited,
“SECTION 2. The Congress shall have power to enforce this article by
appropriate legislation, and nothing in this article shall deprive the
several States of their power to enact and enforce laws prohibiting the
traffic in intoxicating liquors.”
By reason of _our_ education in the actual constitution of our only
American government and our respective state governments, we grasp
immediately the startling nature of the suggestion that the state
governments make that Section 1 and that Section 2. We first dwell with
amazement upon the proposed Section 1 and its proposed makers.
It is a general and direct command to all human beings anywhere in
America, directly interfering with their individual freedom, on a
matter not enumerated in the First Article. Since we denied omnipotence
to Parliament, no legislature or legislatures had ever dared to
make any general command to the American people, except the American
Congress and _it_ only since 1789 and on matters enumerated in the
First Article. From 1776 to 1789, no legislature or legislatures had
any power whatever to make a general command to Americans on any
subject whatever. When Americans, in answer to the Philadelphia 1787
proposal, made themselves a nation and constituted its government, they
gave to that government _enumerated_ powers to make general commands
on _some_ subjects. All other power to make general commands _of that
kind_ they withheld from every government and reserved exclusively to
themselves, as they had denied _every_ power of that kind to every
government in the world by their Statute of ’76. For which very clear
reasons, it had been continually repeated in the Supreme Court for a
century that only one government in the world could make a general
command to the citizens of America, and that the Congress itself could
not make any such command on any subject not enumerated in the First
Article.
The Congress _proposal_ of the Eighteenth Amendment was its own
recognition of the truth that the sole government of American citizens
had no power to command them on that subject. It is probable that
nothing ever originated in Congress more remarkable than this proposal
that, because Congress itself was without the power to make the
command, Congress should ask inferior governments of other citizens
to make a command to the American citizens. If it were possible that
this could be done, there would be no American citizen. While no
public leader or renowned lawyer has known this simple fact, the story
of five years has shown how difficult it is to educate _the average
citizen_ away from the “American” mental attitude of 1776. In 1922, our
Chief Executive commented on the fact that the disobedience of American
citizens to the command made by the state governments had become a
public scandal. From 1765 on, similar disobedience of Americans to
commands made by government without authority _from_ Americans was a
public scandal to Tories in America and in the British Parliament.
There can be no mistake about the Tory mental attitude of the supposed
American government which asked the governments of _state_ citizens
to make the 1918 command to the American citizens, interfering with
their individual liberty on a matter outside the First Article. The
request was a frank avowal of the Tory concept that the people are
“subjects” and that government can constitute new government of men “in
all matters whatsoever.” Even in choosing the time for the proposal
and the command, there was sincere and flattering imitation of a Tory
precedent of Revolutionary days. When Americans of New York were away
from their homes and at the battlefields of the Revolution, it was
a Tory who stirred up the House of the Six Nations to make a home
attack upon what was cherished by those Americans. And it cannot be
ignored that it was in 1918, when millions of Americans were away from
their homes either fighting or prepared to fight for human liberty,
the Houses of forty-five distinct nations were stirred up to make a
home attack upon what those Americans cherished, their individual
freedom. And the analogy does not end with this fact. Whenever the Tory
concept of the relation of government to “subject” has prevailed,
government has never recognized any obligation of government to obey
law made by government. In the years which followed 1918, this was
strikingly exemplified by the sole American government which had asked
the governments of _state_ citizens to make a command to the citizens
of America. The command, in simple English, forbade that certain
things be done in “the United States and all territory subject to
the jurisdiction thereof.” The American government insisted that its
citizens must obey the command. But the American government itself
frankly added that, on its own ships which flew the American flag, it
would not pay the slightest attention to the command. And not until
this frank Tory attitude had been given unenviable notoriety did the
American government ask the remarkable information from its Attorney
General whether ships, owned by the American government and flying the
American flag, constituted “territory subject to the jurisdiction”
of America. Then, while the chief champion of the new Article before
the Court of 1920 and his associate government officials waited for
the information from their associate Attorney General, the American
government continued to act on the claimed assumption that its ships
were not “territory subject to the jurisdiction” of America. Facts
speak for themselves. It seems impossible to question the consistent
Tory attitude of the American government in every matter relating to
the supposed Eighteenth Amendment.
Let us now consider the second section of this amazing new Article, as
such second section was originally suggested by the Senator from Texas.
In its _then_ form it was the suggestion that, after or simultaneously
with the state government exercise of an imaginary power to command
the American citizens, those same state governments should vest in the
only government of American citizens a future ability to make commands
on the same subject, a subject not enumerated in the First Article. The
Statute of ’76, the reasoning and the decision at Philadelphia in 1787
that _its_ First Article could only be made by the “conventions,” the
clear and explicit statements in the Supreme Court (from Marshall to
Brewer in 1907) that no valid grant of _national_ power could ever be
made except by the “conventions,” the prescription in the Fifth Article
of the _constitutional_ mode in which a “Yes” from three fourths of
those conventions would validly make grants of _such_ power--all
these things meant nothing whatever to the Senator from Texas or his
colleagues in Congress, to the legislators in the various states,
to government officials or to the “constitutional” lawyers who have
discussed the Eighteenth Amendment. None of them realized the clear
fact that, if government could get new power over human beings _from
government_, the Americans, through whose education _we_ have lived,
had wholly failed to achieve their one purpose, security of human
freedom from any interference by government except under some power of
interference directly granted by themselves to that government.
Many of the colleagues of the Senator from Texas questioned the
_wisdom_ of asking the grant on that subject. We know not one, however,
who questioned the _ability_ of the proposed donors _to make_ the
grant. We know not one who questioned as a fact that a fractional part
of our state governments have the very omnipotence over the individual
people of all America, which those earlier Americans denied to the
British Parliament. Among _our_ “constitutional” lawyers, there were
many who were engaged to combat in court the validity of the new
Article. They questioned its validity on the ground that it took from
the states, which are mere political entities, part of the power which
each state had not surrendered. In this, they ignored the legal fact,
settled by innumerable decisions, that the people of America, not the
states, made the Constitution and all its grants of _national_ power.
They questioned its validity on the ground that the power (to make
constitutional Articles) “granted” (?) in the Fifth Article did not
include the power to make fundamental changes in the Constitution.
In this, they wholly ignored the certain fact that no such power
_is_ granted in the Fifth Article but that two distinct powers, then
existing, one limited and the other unlimited, are _mentioned and not
granted_ in the Fifth Article, and a mode of procedure for the future
exercise of each is prescribed. In all their challenges to the validity
of the new Article, however, we know not one who ever knew or mentioned
the only and the invincible challenge to that validity, that new power
to interfere with the individual freedom of the American citizen could
_only_ be obtained _constitutionally_ by direct action of the American
people themselves, assembled in the “conventions” of the Fifth Article.
It meant nothing to them that the Fifth Article prescribed that _such_
grants should be valid _only_ when there had been a “Yes” evoked from
three fourths of those conventions. If we would realize the amazing
ignorance, during the last five years, shown on these matters, we must
continue the tale of the proposed new Article.
Before the proposed Article had left the Senate for the first time,
what we now call Section 2 read, “The Congress shall have power to
enforce this Article by appropriate legislation.” With the section in
that language, the Joint Resolution was passed and sent to the House of
Representatives on August 1, 1917. (_Congressional Record_, Vol. 55,
p. 5666.) It was reported out of the Judiciary Committee and taken up
by the House on December 17, with the proposed Section 2 reading, “The
Congress and the several states shall have concurrent power to enforce
this Article by appropriate legislation.”
Somewhat educated with those Americans whose experience made them
better acquainted with the science of government than any other people
in the world, we realize that only Mark Twain could do full justice
to the nature of _this_ alteration to the proposed Section 2. It was
not enough that Congress, because it did not have the power to make a
certain command to its own citizens, should ask inferior governments,
which are not the government of the American citizens, to make that
command. It was not enough that the American Congress, when asking
these inferior governments to make that command, should ask them
to give Congress a future ability to make commands on that subject
on which the citizens of America had never given any government or
governments ability to make any commands to the citizens of America.
The House alteration in the second suggestion from the Senate would
indicate that the House became jealous of the Senate ignorance of
fundamentals in the relations of governments to one another in America
and in the relation of all governments in America to the individual
American. It is difficult otherwise to explain the House alteration
in the Section 2 of the Amendment which came from the Senate. As the
House reported the two sections back to the Senate, this is what the
two sections proposed. Section 1 embodied a command (to be made by
the inferior state legislatures) which directly interferes with the
individual freedom of the American citizens on a subject not enumerated
in their First Article. Section 2 embodied a grant of future ability
to make similar commands on the same subject, and the grant was to be
from the state legislatures to the Congress and _to the very state
legislatures_ who were supposed to make the grant itself and the
command of the First Section.
This is exactly the form in which the Second Section of the supposed
new Amendment was later ratified by these very state legislatures.
That Second Section has been the subject of unlimited discussion for
the past five years. Every one seems to have given it whatever meaning
pleased him at some particular moment. When the House Chairman of the
Judiciary Committee reported this Section to the House he frankly
stated that “We thought it wise to give both the Congress and the
several states concurrent power to enforce this Article and let that
power be set forth and granted in the Article we propose to submit.”
(_Congressional Record_, Vol. 56, p. 424.) But when Wheeler, counsel
for a political organization which dictated that governments constitute
this new government of men, wrote his briefs to uphold the validity of
the new Article which Webb championed in the House, he explained that
this Webb Second Section “does not add to the power already conferred
upon Congress by Section 1” but that “it does, however, make clear that
the power is _reserved_ to the states to pass legislation in aid of the
acts of Congress.” As in most matters, the various champions of the
supposed Eighteenth Amendment are unable to understand and agree upon
the meaning of plain English. From time to time, in our education, it
will be clear that they do not know and understand what the American
people did in 1788 in their “conventions” but that, while flatly
contradicting one another, they are all satisfied that the American
citizens did give the state legislatures unlimited ability to interfere
with individual freedom of the American citizen. It seems natural,
therefore, to find Webb and Wheeler flatly contradicting one another as
to the plain meaning of Section 2 of the Eighteenth Amendment. Despite
the absurdity of the concept, Section 2 means exactly what Webb stated
it to mean when he brought it from the House Judiciary Committee which
had written it. It means, in the plainest English, that the state
legislatures grant to themselves (as well as to Congress) ability to
make commands of the very same kind as the same state legislatures
make, without the grant, in the First Section. And it is a remarkable
fact that, in all the comment on that Section 2 for five years, no
word has been spoken about this ridiculous proposal that the state
legislatures make a certain command and then grant themselves the power
to make such commands. However, the absence of such comment has been
quite in keeping with the fact that our modern leaders and lawyers,
during the same five years, have never known or commented upon the
fact that the Eighteenth Amendment depends for its existence upon the
similar and equally absurd concept that the Fifth Article is a grant
from the “conventions” to the “conventions” as well as to the state
legislatures.
By reason of _our_ education, we have many natural questions to ask
about that Section 2 and the unique House addition to its supposed
grant. While some of those questions may be academic, inasmuch as we
know that the new Article is not in the Constitution, the thoughts
which suggest the questions are strikingly pertinent to our general
query, “Citizen or Subject?”
_In the first place_, we recall the opening words of Section 4 of
the Fourth Article of the Constitution. Those words are, “The United
States shall guarantee to every State in this Union a Republican Form
of Government.” These words immediately precede the Fifth Article.
Moreover, the Supreme Court has decided that it is the particular duty
of Congress to see that this particular guarantee of the Fourth Article
is strictly fulfilled. (Luther v. Borden, 7 _How._ 1; Pacific Telephone
Company v. Oregon, 223 _U.S._ 118.) In the light of these facts, we
wish to know whether the Congress, which proposed the change in Section
2, so that state governments outside a particular state might give
to the state government of that state new power to interfere with
_its_ citizens, understood that the Fifth Article was meant to enable
Congress to originate any desired breach of the guarantee in the Fourth
Article. From our education, we know that, so long as any state has a
republican form of government, its legislature can have no power to
interfere with the individual freedom of the citizens of a state except
by the grant _and continued consent_ of those citizens themselves. We
know that the citizens of each state, in 1776, gave its legislature
power to interfere with their freedom in the matter which is the
subject of the Eighteenth Amendment. We know that, then or at any time
since then and now, the citizens of each state could take back _that_
power so given. But, if the governments of thirty-six states outside
any given state, by the Second Section of the Eighteenth Amendment,
have granted the legislature of that particular state a new and second
power to interfere with the individual freedom of the citizens of that
state, in the matter which is the subject of the Eighteenth Amendment,
what has become of the republican form of government in that state? No
republican form of government ever exists where governments, outside
a state, give to its legislature any power to interfere with the
individual freedom of its citizens.
The case of Rhode Island or Connecticut makes our point clear, although
the question is equally apt for _any_ state, _if_ the Eighteenth
Amendment is in the Constitution. Neither the American citizens in
Rhode Island nor the legislature of Rhode Island, which speaks only
for _its_ citizens and not for any citizens of America, have ever said
“Yes” to the grant to the legislature of Rhode Island of this new
power to interfere with the individual human freedom of the citizens
of Rhode Island. The other power to interfere with that freedom, on
the same subject, which the citizens of Rhode Island gave to _their_
legislature, is a power which the citizens of Rhode Island can take
back from that legislature at any time. But, _if_ the Eighteenth
Amendment is in the Constitution, the legislature of Rhode Island has
a power to interfere with the citizens of Rhode Island in the exercise
of their human freedom, which power has been granted by governments
_outside_ of Rhode Island, and which power cannot be taken away from
that legislature by the citizens of Rhode Island.
We average Americans again ask whether the Congress, chosen to fulfill
the guarantee of the Fourth Article, understood the meaning of the
Fifth Article to be that it could suggest and originate any desired
breach of that guarantee?
_In the second place_, we would like to ask another question of the
Congress which proposed that Second Section and of all who uphold
the validity and the sanity of the Eighteenth Amendment. This other
question is about the two distinct powers, in relation to Prohibition,
which the legislature of every state must have, _if_ the Amendment is
in the Constitution? The question is simple. When such legislature
passes an act like the Mullan-Gage Law in New York, _who_ determines
which of the two distinct powers the state legislature exercises? Is
it the power granted by the citizens of that state and revocable by
them? Or is it the power granted by _governments_ outside that state,
over which the citizens of that state have not the slightest control?
The query is a pertinent one. It is not beyond reasonable assumption
that the citizens of New York may amend their state constitution and
forbid their legislature to enact any statutes interfering with the
freedom of the citizens of New York, in any way, on the matter which
is the subject of the Eighteenth Amendment. Such a step on the part
of the citizens of New York would be absolutely valid. It is not
forbidden even by the remarkable Eighteenth Amendment. Such a step
would immediately deprive the legislature of the State of New York of
any power from New York citizens to pass such law. Moreover, it would
end that Law itself, _if_ that Law was passed in the exercise of the
power, in such matters, granted by the citizens of New York. If it
were determined, however, that the Mullan-Gage Law had been passed
by the New York legislature in the exercise of power delegated to it
by governments outside of New York, the Mullan-Gage Law would still
remain a valid statute. This would mean, of course, that the republican
form of government guaranteed to the citizens of New York, by the
Fourth Article, had come absolutely to an end. Our particular query, at
this point, is obviously one of considerable importance to us American
citizens, each of whom happens to be also a citizen of some state to
which the citizens of America made the guarantee of the Fourth Article
and imposed on the very Congress, which originated the Eighteenth
Amendment, the duty of having that guarantee fulfilled.
There are other equally pertinent questions which we might ask about
this unique Section 2 of the Eighteenth Amendment. We will leave them
for the present, so that we may continue the story of the travel of
the proposed new Article through the two Houses of the Congress which
suggested that governments exercise and give government ability to
exercise this new power over American citizens, not enumerated in
the First Article. We come now to the days on which the House of
Representatives and the Senate discussed the Joint Resolution. In the
recorded eloquence of the advocates of the proposal, we shall find
much to remind us of the prevailing attitude in the British Parliament
toward us in 1775. But, in that eloquence, we shall look in vain for
any echo of the Philadelphia of 1787 or of the “conventions” in which
Americans once assembled and gave their only government its only
enumerated powers to interfere with their individual freedom.
CHAPTER XVII
THE TORY IN THE HOUSE
“Let facts be submitted to a candid world.” _They_ have “combined with
others to subject us to a jurisdiction foreign to our Constitution and
unacknowledged by our laws; giving” _their_ “assent to their acts of
pretended legislation;. .. For. .. declaring themselves invested with
power to legislate for us in all cases whatsoever.”
It is doubtful if our Congress of 1917 ever read the above language.
It is certain that such Congress, reading those words, would heed them
just as little as all advocates of the supposed Eighteenth Amendment
have heeded the express commands of the Americans who uttered those
words.
For the information of those who think that governments in America
_can_ validly make grants of _national_ power, like those in the First
Article and the Eighteenth Amendment, we state that the quoted words
are from the complaint of the American people against their British
Government on July 4, 1776. For their information, we also state
that, on that famous July day, all Americans ceased forever to be
“subjects” of any government or governments in the world. For their
information, we also state that it will require more than a combination
of our American government and the state governments to subject us
American citizens to a jurisdiction foreign to _our_ Constitution and
unacknowledged by our laws, the jurisdiction of the state governments,
none of which has aught to do with the citizens of America.
It is a known legal fact, decisively settled in the Supreme Court, that
the jurisdiction of the American government over the American citizen
and the jurisdiction of the state government over the state citizen are
as distinct and foreign to each other as if the two citizens were two
human beings and the territory of the state were outside of America.
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 other and 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. (Justice Waite in United States v. Cruikshank, 92 _U.
S._ 542.)
The two governments in each state stand in their respective spheres
of action, in the same independent relation to each other, except in
one particular, that they would if their authority embraced distinct
territory. That particular consists in the supremacy of the authority
of the United States where any conflict arises between the two
governments. (Justice Field in Tarble’s Case, 13 _Wall._ 397.)
In our Constitution all power ever granted to interfere with the
individual freedom of American citizens is vested in _our_ only
legislature, the Congress. That is the opening statement of that
Constitution in its First Article, which enumerates all powers _of that
kind_ ever validly granted to that legislature.
In _our_ Constitution no power whatever over the citizens of America
was ever granted to the states singly or collectively, or to the
governments of the states singly or collectively. That all governments
in America, including the Congress of 1917, might know that settled
fact, it was stated with the utmost clarity in the Tenth Amendment to
that Constitution. That Amendment, repeatedly held by the Supreme Court
to be part of the original Constitution, is the clear declaration that
no power of any kind over us, the citizens of America, is granted in
that Constitution to any government save the government of America, and
to it only the enumerated powers _of that kind_ in the First Article.
It is also the clear declaration that all powers to interfere with
individual freedom, except the powers _granted_ in the First Article to
the _American_ government and powers _reserved_ to the citizens of each
state respectively, to govern themselves, are reserved to the American
citizens.
Wherefore, now educated in the experience of the Americans who insisted
on that declaration, we make exactly the same charge, against the
Congress of 1917 and all advocates of the Eighteenth Amendment, that
was made by those Americans against their king who insisted that they
were “subjects” of an omnipotent legislature.
In December, 1917, the Congress knew that it could not make, to the
citizens of America, the command which is Section 1 of the Eighteenth
Amendment. By reason of that knowledge, that legislature--the only
_American_ one--paid its tribute to the state legislative governments
as collectively a supreme American Parliament with exactly the same
omnipotence over all Americans “as subjects” which the Americans of
1776 denied to the British Parliament.
Congress ought to have known that no government except Congress can
make any command on any subject to American citizens. It did know that
Congress could not make the command of the new article to the American
citizen. Therefore it paid its tribute to the state governments. It
asked them, as competent grantors, to give it a new enumerated power to
interfere with the individual freedom of the American citizen.
It is history that those state governments, each with no jurisdiction
whatever except over the citizens of its own state, went through the
farce of signing the requested grant in the name of the citizens of
America. It is law that those state governments are not the attorneys
in fact of the citizens in America for any purpose whatever. It is
law that no governments have any power of attorney from the citizens
of America to grant to any government a new enumerated ability to
interfere with the individual freedom of the American citizens. For
which simple legal reason, the supposed grant of such a power, by
government to government, in Section 2 of the Eighteenth Amendment, is
a forgery.
The supposed Volstead Act was enacted under this grant. It has met
with the severest criticism. No one, however, has yet pointed out
one particular fact to the careful thought of every average citizen
of America. There are thousands of laws, interfering with individual
freedom, in the statute books of the American nation and of the
respective states. In one respect, however, this Volstead Act is
absolutely unique among statutes in America. It is the one law in
America _of that kind_, the kind interfering with individual freedom,
which does not even pretend to be founded on a grant of authority
directly from its citizens to the government which passed it. It is the
only law in America, directly interfering with human freedom, which
was enacted under a grant of power made _by_ government to government.
It does not detract from this unique distinction that the American
government requested the grant, and the state governments made it,
and the American government acted under it, by passing the Volstead
Act, all being carefully planned and accomplished while millions
of Americans were preparing to give and thousands of them did give
their lives for the avowed purpose of securing human liberty from the
oppression of government.
When, in 1787, Americans at Philadelphia had worded our Constitution,
Gerry, opening the short discussion of its Fifth Article, made this
important and accurate statement of fact: “This constitution is to
be paramount to the state constitutions.” All American citizens know
that each state legislature is the creature of its state constitution
and absolutely subject to that constitution. We thus have clearly
established that the American Constitution is paramount to all the
state constitutions and that each state constitution is respectively
paramount to the state legislature which it creates and controls. It
remained for the Congress of 1917 and all advocates of the Eighteenth
Amendment to acquire and state and act upon the remarkable “knowledge”
that those same state legislatures are paramount to everything in
America, including the American Constitution, which is paramount to the
state constitutions which created these very legislatures. That such
was the unique knowledge of the Congress of 1917 is made clear by its
request to those state governments to make the command of Section 1 to
the citizens of America and to make the grant of Section 2 of power
over the citizens of America.
“We thought it wise to give both the Congress and the several states
concurrent power to enforce this Article and let that power be set
forth and granted in the Article we propose to submit.”
So spoke Congressman Webb, introducing the proposed Eighteenth
Amendment, exactly as it now reads, to the House of Representatives, on
December 17, 1917. This was the day on which that House discussed and
passed the Senate Joint Resolution 17, which proposed that Amendment
and submitted it to _governments_ to make it. Webb was a lawyer of
renown and chairman of the Judiciary Committee and had entire charge of
the passage of the Resolution in the House on behalf of those who had
ordered the American Congress to pass that Resolution.
From one instance alone, we may immediately glean how clearly Webb
and all leading supporters of the Eighteenth Amendment, in and out of
Congress during the past five years, have shown an accurate “knowledge”
of the basic principles of all government in America. We realize that
such knowledge, if human liberty is to remain secure, is an essential
qualification of leaders of a people once “better acquainted with the
science of government than any other people in the world.”
No sooner had Webb read the Section 2 and made his quoted statement of
its purpose than he was asked a pertinent and important question. The
query was whether, if Congress and a state government each passed a
law and they flatly conflicted, which law would control? Webb had made
long preparation to carry out his purpose that the Eighteenth Amendment
be inserted in the Constitution _by government_. He was prepared with
his immediate response to that ignorant question. His prompt answer
was: “The one getting jurisdiction first, because both powers would
be supreme and one supreme power would have no right to take the case
away from another supreme power.” (_Congressional Record_, Vol. 56, p.
424.) It is sad to relate that this lucid explanation of the manner
in which _two_ distinct supreme powers dictate to one “subject,” the
American citizen, elicited the next query, “Does the gentleman say
that as a lawyer?” With the charity that real intelligence displays to
ignorance, Webb again explained the simple proposition of two distinct
_and supreme_ powers to command on exactly the same matter. We commend
Webb’s American mental attitude, without the slightest Tory taint, and
his mastery of American law, to all who ever wish to dictate to human
beings as “subjects.”
Fresh from our education in the experience of the earlier real
Americans, we deem it proper to dwell for a moment further on that
opening statement of Webb: “We thought it wise to give both the
Congress and the several states concurrent power to enforce this
Article and let that power be set forth and granted in the Article we
propose to submit” to the state governments.
We recall vividly the statement of Lloyd George made only last year in
the British Legislature. He was speaking of the proposed treaty with
Ireland, then before that Legislature, and this is what he said, in
substance. “The Parliament at Westminster [legislative government, not
the people of the British Empire] is the source of every power in the
British Empire.” It is our just tribute to Webb and every American who
believes that the Eighteenth Amendment is in the Constitution, that
they understand that the American nation is founded and exists on
exactly the same principle. They have all acted upon the one conviction
that the state governments collectively are exactly the same as the
Parliament at Westminster, are above the American Constitution and need
obey no command in it, and are the legitimate source of any power to
interfere with the individual freedom of the American citizen, on any
matter whatsoever.
On our part, probably blinded by our own education with the earlier
Americans, we still believe that Webb and all who think with him are
hopelessly ignorant of American law. We believe that they do not
understand in the least the vital change in the status of the American
individual, from “subject” to “citizen,” on July 4, 1776.
We remember Marshall’s clear statement, in the Supreme Court, that, in
the days when Americans “were better acquainted with the science of
government than any other people in the world” and the First Article
grants of power over them were requested, the legal “necessity of
deriving those powers from _them_ was felt and acknowledged by all.”
We know that _they_ made no change in the imperative nature of that
necessity. We do not understand how that legal necessity, during the
past five years, has not been known to Webb and those of his Tory faith.
We remember Marshall’s equally clear statement, again in the Supreme
Court, that, when new grants of such power are wanted from its citizens
by the American government, there is only one way, in which those
grants can be validly or “effectively” made, namely, by those citizens
themselves, assembled in their “conventions.” It is true, the American
citizens assembled in those conventions in their several states. “No
political dreamer was ever wild enough to think of breaking down the
lines which separate the states, and of compounding the American people
into one common mass” and of compelling them to assemble in _one_
“convention,” when it is necessary for them to act, as possessors of
exclusive ability to vest national power over them.
Of consequence, when they act, they act in their states. But the
measures _they_ adopt do not, on that account, cease to be measures
_of the people themselves_, or become the measures of the state
governments. (M’Culloch v. Maryland, 4 _Wheat._ 316.)
We do not understand how Webb and those of his Tory faith have
forgotten this legal fact, possibly the most important in America to
the liberty of its citizens.
We remember how well this legal fact was once known to all Americans,
how clearly the Americans in Virginia expressed it as the then
knowledge of all Americans and their leaders. “The powers granted under
the proposed Constitution are the gift of the people, and every power
not granted thereby remains with them, and at their will.” (Resolution
of the Americans in Virginia, ratifying the Constitution and making the
grants of its First Article, 3 _Ell. Deb._ 653.) We do not understand
how Webb and those of his Tory faith, speaking the language of Lord
North in 1775 and of Lloyd George in 1922 as to the British Government
of “subjects,” should translate the quoted accurate statement of
American law into, “The powers granted under the proposed Constitution
are the gift of the people, but every power not granted therein remains
with the collective state legislative governments and can be granted
by those governments, without any action by the citizens of America
themselves.”
We know that the Supreme Court, in 1907, did not so understand.
The powers the people have given to the General Government are named
in the Constitution, [all in the First Article] and all not there
named, either expressly or by implication, are reserved _to the
people_ and can be exercised only by _them_, or upon _further grant_
from _them_. (Justice Brewer in Turner v. Williams, 194 _U. S._ 279.)
We do not understand how Webb and those of his Tory faith could believe
that one of those reserved powers could be exercised by the collective
state governments, Section 1 of the new Amendment, or could be granted
by those governments, Section 2.
We remember that Madison, who worded the Fifth Article, and Hamilton,
who seconded it at Philadelphia, did not so believe but knew that
such belief came in direct conflict with basic American law. “As the
people are the only legitimate fountain of power, and it is from them
that the constitutional charter, under which the several branches of
government hold their power, is derived, it seems strictly consonant
to the republican theory, to recur to _the same original authority_
[the people themselves in “conventions”] whenever it may be necessary
to enlarge, diminish, or new-model the powers of the government.”
(Hamilton in _The Federalist_, No. 49.) “The fabric of American Empire
ought to rest on the solid basis of the _consent of the people_. The
streams of _national_ power ought to flow _immediately_ from that pure,
original fountain of all legitimate authority.” (Hamilton in _The
Federalist_, No. 22.) “The express authority of the people alone could
give due validity to the Constitution.” (Madison in _The Federalist_,
No. 43.) “It is indispensable that the new Constitution should be
ratified in the most unexceptionable form, by the supreme authority of
the people themselves.” (Madison, at Philadelphia, 5 _Ell. Deb._ 158.)
“The genius of republican liberty seems to demand on one side, not only
that all power should be derived from the people, etc.” (Madison in
_The Federalist_, No. 37.) and “There is certainly great force in this
reasoning, and it must be allowed to prove that a constitutional road
to the decision of the people ought to be marked out and kept open, for
certain great and extraordinary occasions.” (Madison or Hamilton in
_The Federalist_, No. 49.)
We average Americans know that, in the Fifth Article, there is “marked
out and kept open, for certain great and extraordinary occasions a
_constitutional_ road to the decision of the _people_” when their own
exclusive ability is alone competent to do what is deemed wise to be
done. We know that the direct command to American citizens, interfering
with their individual freedom and contained in Section 1 of the new
Amendment, was the first direct command _of that kind_ ever attempted
to be put in our Constitution. We know that the grant of power to
make such commands, which is the grant of the second section of that
Amendment, is the first and only grant _of that kind_ ever supposedly
made since 1788. Knowing these undoubted facts, we cannot understand
why Webb and those of his Tory faith did not know that the request for
the command of Section 1 and for the grant of Section 2 was “a great
and extraordinary” event, and that only through the “_constitutional_
road for the decision of the _people_” themselves, “marked and kept
open” in the Fifth Article, the assembling of the people themselves
in their “conventions,” could a valid command and a valid grant be
achieved.
The more we average Americans consider, however, the Congressional
record of 1917 and the story of the subsequent five years, the more
do we understand the curious mental attitude which has led Webb and
those of his Tory faith, who believe that the new Amendment is in the
Constitution, to think that governments could make that command to and
that grant of power over the citizens of America. Our consideration
leads us to think that none of these men have ever read or grasped
the meaning of the words expressing a knowledge so often shown by our
Supreme Court:
The people who adopted the Constitution knew that in the nature of
things they could not foresee all the questions which might arise in
the future, all the circumstances which might call for the exercise
of further _national_ powers than those granted to the United States,
and after making provision for an Amendment to the Constitution by
which any needed additional powers would be granted, they reserved to
_themselves_ all powers not so delegated. (Justice Brewer, Kansas v.
Colorado, 206, _U. S._ 46 at p. 90.)
We are sorely afraid that Webb and the Congress of 1917 and all
upholders of the new Amendment have made exactly the same vital mistake
which had been made, in that reported case, by the counsel who there
represented the very same government which repeated the mistake in 1917.
That counsel had contended for the proposition that there are
“legislative powers affecting the nation as a whole [the citizens
of America] which belong to, although not expressed in the grant of
powers” in the First Article. The answer of the Supreme Court was
decisive on the mistake of that counsel and the mistake of the 1917
request from Congress to the state governments. The answer was that the
proposition
is in direct conflict with the doctrine that this is a government of
enumerated powers. That this is such a government clearly appears
from the Constitution, independently of the Amendments, for otherwise
there would be an instrument granting certain specified things
made operative to grant other and distinct things. This natural
construction of the original body of the Constitution is made
absolutely certain by the Tenth Amendment. This Amendment, which was
seemingly adopted with prescience of just such contention as the
present, disclosed the wide-spread fear that the National Government
might, under the pressure of a supposed general welfare, attempt to
exercise powers _which had not been granted_. With equal determination
the framers intended that no such assumption should ever find
justification in the organic act, and that if in the future further
powers seemed necessary, they should be granted _by the people_ in the
manner they had provided for amending that act. It reads: “The powers
not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people.” _The argument of counsel ignores the principal factor in
this Article_, to wit, “THE PEOPLE.” Its principal purpose was not a
distribution of power between the United States and the States, but a
reservation _to the people_ of all powers _not_ granted. The preamble
of the Constitution declares who framed it,--“We, the people of the
United States,” not the people of one State, but the people of all the
States; and Article X reserves to the people of all the States the
powers not delegated to the United States. The powers affecting the
internal affairs of the States not granted to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
_States respectively_, and all powers of a national character which
are not delegated to the National Government by the Constitution are
reserved to the _people of the United States_. (206 _U. S._ at p. 89.)
We average Americans know, and Webb and those of his Tory faith cannot
deny, that the power to make the command of Section 1, the power
purported to be granted in Section 2, are among the powers of which the
Supreme Court speaks as reserved, not to the states, but to the people
of America. We also know, and again _they_ cannot deny, that only
those, who have, can give, or grant. For which reason, _we_ ask that
_they_ answer this question: How can the state governments exercise or
grant a power which was not reserved to the states but was reserved by
the citizens of America to themselves?
In asking this question we but echo the learned Pendleton’s question,
in the Virginia convention of 1788: “Who but the people can delegate
powers?... What have the state governments to do with it?” (3 _Ell.
Deb._ 37.) And we also but echo the question of Wilson, in the
Pennsylvania convention of 1787: “How comes it, sir, that these state
governments dictate to their superiors--to the majesty of the people?”
(2 _Ell. Deb._ 444.)
But we, the citizens of America, have a further charge, at this point,
to make against Webb and all who claim that the new Amendment is in
the Constitution or that any governments could put it there. In the
case of Kansas v. Colorado, supra, counsel for the government of
America made a monumental error by displaying his ignorance of the
most important factor in the Tenth Amendment, “the people” of America.
By reason of that particular ignorance, he assumed that all power to
interfere with the individual freedom of Americans, on every subject,
must be vested in some government or governments. This was the Tory
concept, accurately rebuked by the supreme judicial tribunal, knowing
only American law based on the American concept of the relation of
“citizens” to their servant government and not on the Tory concept
of the relation of the master government to its “subjects.” He did
not know what Cooley knew when he made his accurate statement that
“There never was a written republican constitution which delegated
to functionaries all the latent powers which lie dormant in every
nation and are boundless in extent and incapable of definition,”
(_Constitutional Limitations_, 7th Ed., 1903, p. 69.) By reason of
his ignorance, he contended that government could command American
citizens by interfering with their individual freedom on a matter not
enumerated in the First Article. His particular error, in that respect,
is repeated by Webb and all who uphold the validity of the command made
in Section 1 of the new supposed Amendment.
But they were not content with repeating his one monumental error. They
have not only ignored the most important factor in the Tenth Amendment,
“the people.” They have also wholly ignored the most important factor
in the Fifth Article, the mention of the _way_ in which the citizens
of America made their only valid grants of power to interfere with
their individual human freedom, the mention of the only way in which
new grants _of power of that kind_ can ever be _constitutionally_ made,
the assembling of _those_ citizens in their “conventions” in their
several states. So assembled in such “conventions,” they made all their
grants in the First Article and then, in their Fifth Article, mentioned
their own assembling in exactly similar conventions in the future and
prescribed that a “Yes” from three fourths of those conventions would
be the only valid signature of the citizens of America to any new
grant of a further enumerated power to interfere with their individual
freedom.
There never has been any other possible meaning to those words in the
Fifth Article, “or by conventions in three fourths thereof.” To the
Americans who worded that Article at Philadelphia and to the Americans
who made that Article, assembled in just such “conventions” as are
mentioned in words therein, that quoted phrase was the most important
factor in the Fifth Article. To them, those quoted words therein were
the complement of their most important factor in the Tenth Amendment,
the reservation to themselves (“the people” or citizens of America) of
every _national_ power not delegated in the First Article. Together,
the two important factors were the command of the citizens of America
that all _national_ powers so reserved to themselves could be delegated
only by themselves, assembled in their “conventions” --“by conventions
in three fourths of” their states. We, who have lived through their
education with them, realize this with certainty. Webb and those who
believe with him know nothing about it.
Recognizing that Congress had been given no power to make the command
which is Section 1 of the new Amendment, they first asked the state
governments to make that command to the citizens of America. This was
an exact repetition of the error made by counsel in Kansas v. Colorado,
supra. This was their ignoring of the most important factor in the
Tenth Amendment. Then, that the display of their own ignorance should
contain something original, they ignored the most important factor
in the Fifth Article and requested that a new power, reserved by the
citizens of America to themselves, should be granted by the state
governments. Everything that they have said or done, during the last
five years, is based on that ignoring of that most important factor in
that particular Article.
Indeed Webb himself made this very clear at the very opening of his
appeal that Senate Resolution Number 17 be passed in the House on
December 17, 1917. He merely paused to make the lucid explanation
of how _two_ supreme powers act, and then went on to read the Fifth
Article as it appears in his expurgated edition of our Constitution.
This is the Fifth Article he read to our only legislature:
“that Congress, whenever two thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution ... which
... shall be valid to all intents and purposes as part of this
Constitution, when ratified by the legislatures of three fourths of
the several states.”
It is clear to us, who have followed the framing of that Article in
Philadelphia in 1787, that the Americans who framed it there and
the Americans who made it, in their later “conventions,” would not
recognize _their_ Fifth Article. In the expurgated edition, the most
important factor in the real Fifth Article is not only ignored but is
entirely missing. It has been stricken from the Article. We do not know
who ordered that it be stricken out. We recall with interest that, on
September 15, 1787, at Philadelphia, Gerry, always a consistent Tory
in mental attitude, moved that it be stricken out of the Article. We
recall that his motion was defeated by a vote of 10 to 1. Nevertheless,
when we come to read that Article, as Webb and his colleagues for the
new Amendment know it, we find that they must have some other record
of the vote on that old September 15, 1787, and of the later votes in
the “conventions” of the citizens of America. We find that in the
Fifth Article, as Webb and his colleagues know it, there are no words
“by conventions in three fourths of” the several states. We realize
that this reading of _his_ Fifth Article and the absence of those
important words from it was no mere inadvertence on the part of Webb.
Clearly those words are not in _his_ Fifth Article. Only a few moments
after his reading of it, on December 17, 1917, he quoted with approval
a statement, by some former Senator, that the American people have
a “right to be heard in the forum of the state legislatures, where
_alone_ the question can be decided whether the _national_ Constitution
shall be amended.”
In view of these facts, we educated citizens of America have no
difficulty in grasping the Tory mental attitude of Webb (and his
colleagues _for_ the new Amendment) that all constitutional protection
for our individual freedom may be legally dispensed with at any time
_by government_, if governments only get together and act jointly, as
in the proposal and supposed adoption of the new Amendment entirely
by governments. For the edification of Webb and those of his faith
in that respect, we would like to inform them that all who believe
that the new Amendment has been or can be put in the Constitution by
governments, “seem to have lost sight of the people altogether in
their reasonings on this subject; and to have viewed” our national
and state governments, “not only as mutual rivals and enemies, but
as uncontrolled by any common superior in their efforts to usurp the
authorities of each other. These gentlemen must be here reminded of
their error. They must be told that the ultimate authority, wherever
the derivative may be found, resides in the people alone, and that it
will not depend merely on the comparative ambition or address of the
different governments, whether either, or which of them, will be able
to enlarge its sphere of jurisdiction at the expense of the other.”
(_Fed._ No. 46.) It contributes not a little to the importance of the
quoted statements that they were written by Madison, who also wrote
the real Fifth Article. They are his warning to the then “adversaries
of the Constitution.” They serve well as our warning to the present
adversaries of our Constitution, who assume and have acted on the
assumption that they can ignore its most important factors whenever
government desires to exercise or to grant a new power to interfere
with our individual freedom, although we have not granted it but have
reserved it to ourselves.
We might continue somewhat indefinitely the story of Senate Joint
Resolution 17 in the House of Representatives on that December day
of its passage therein. We would find, however, what we have already
seen of Webb and his colleagues there to be typical of all they have
said and all that they knew of basic American law. We cannot leave
that House on that day, however, without some comment upon the final
eloquent appeal made by Webb at the close of his arduous labor to
secure the passage of the Resolution.
To those, who have any knowledge in the matter, it is well known
that Christ preached the doctrine of free will and temperance, while
Mohammed laid down the law of prohibition. With great curiosity,
therefore, we have listened for years and still listen to the ceaseless
tirade coming from Christian churches where men style themselves
American “Crusaders” and denounce, in no temperate language, all
Americans who do not align themselves under the “Crescent” flag of
Mohammed and respect his Mohammedan command embodied in the First
Section of the Eighteenth Amendment. Our curiosity is not lessened by
the fact that their denunciation of those, who flatly deny that the
command itself is Christian, is always accompanied with an equally
temperate denunciation of those who dare to question their Tory concept
that governments in America can constitute new government of men.
We have seen Webb, with a candor only equalled by ignorance, frankly
array himself with those who believe the Tory concept, that the
legislatures of the state citizens are “the only tribunal” in which
the _national_ part of the Constitution of the American citizens can
be changed. To his credit, therefore, we find it a matter of record
that, with equal candor, he frankly arrays himself under the “Crescent”
flag of Mohammed and eloquently appeals to all other devotees “of the
great Mohammed” in support of the Mohammedan and un-Christian precept
embodied in the Eighteenth Amendment. That full justice may be done
his eloquence and his candor, these are his own words on his immortal
December 17, 1917: “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 that, 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.” (_Congressional Record_, Vol. 56, p. 469.)
CHAPTER XVIII
THE TORY IN THE SENATE
When our present Constitution was before the people of America, waiting
their approval or rejection, Madison and Hamilton published their
series of essays, now known as _The Federalist_. It is not our intent
to dwell upon the knowledge of American basic law shown by these two
men. Elsewhere our Supreme Court has paid its deserved tribute to _The
Federalist_ as an authority of the greatest weight in the meaning of
our Constitution. At this moment, we desire to mention one remarkable
quality which makes those essays unique among arguments written in the
heat of a great political controversy. They were written to urge that
human beings create a great nation and grant some enumerated powers
to interfere with their own freedom. They were written when other
great leaders were opposing that project with the utmost ability and
eloquence. These opponents, as is the custom with men in any heated
controversy, denounced the project and its advocates. The abuse of both
project and advocates has probably never been exceeded in America. Yet
it is one remarkable quality of the arguments of Madison and Hamilton,
in _The Federalist_, that they themselves never leave the realm of
reason and fact and law, or descend to irrelevant abuse of those who
differ in opinion with them.
We, who have lived through the last five years in America, can
truthfully say that the advocates of the new constitution of
government, the Eighteenth Amendment, have made their essays and
speeches and arguments notable for the same quality, by its utter
absence.
Because fact would interfere with the making of their new Constitution,
they have changed fact. Because law meant that government could not
constitute their government of the people, they have stated law which
has never been law in America since 1776. Because reason would prevent
the achievement of their purpose, they have appealed to irrelevant
abuse of those who dared to differ in opinion with them.
In view of these known facts, we average Americans shall not be
surprised when we read the record of the Senate on its own proposal
that government should exercise a power not delegated to interfere with
individual freedom. Fresh from the reading of the record in the House,
we shall not be surprised to find that the Senate also ignored the most
important factors in the Tenth Amendment and the Fifth Article, “the
people” in the one, and the mention of the people’s exclusive ability
to make _national_ Articles in the other.
When his proposing Resolution came before the Senate on July 30,
1917, Senator Sheppard quickly made clear his mental attitude on the
relation of government to human beings. Whenever a sincere Tory has
voiced himself on that matter, it has always been inevitable that he
betray the thought that human beings are the assets of the State and
not its constituent members. As Madison said, “We have all known the
impious doctrine of the Old World, that people were made for kings and
not kings for the people.” In the country _or in the mind_ where that
doctrine prevails, it is held to be the right and the privilege of
government to see that the people, like the other assets of the State,
are kept in good condition so that all property of the State may have
its greatest economic value in the market of the world.
And so we find Sheppard, through all his opening support of the new
constitution of government based on the Tory doctrine, making clear the
necessity that our government keep that asset, which is the citizens of
America, in good physical condition like any other machine that may be
in America.
“In an age of machinery and of business transactions on a scale more
enormous and complicated than ever before, the clear eye, the quick
brain and the steady nerve are imperatively demanded. Society today is
more dependent upon the man at the machine than at any previous period.
We are coming to understand that the engine of the body must have the
same care as the engine of the aeroplane, the battleship, the railway
train, the steamship or the automobile; that the trade in alcohol is a
form of sabotage which the human machine cannot endure; that it is no
more to be tolerated than would be the business of making and selling
scrap iron to be dropped into the delicate and complex machinery of
modern manufacture, transportation and commerce.” (_Congressional
Record_, Vol. 55, p. 5550.)
After this admirably accurate appreciation of the relation of our
American government to the asset which is ourselves, Sheppard then
proceeded to teach us (who have just lived through the education of the
American human beings who made the Constitution) the real facts of that
making, _as he knows them_.