legislative governments of the states, which are not the governments of
_American_ citizens, directly to interfere with our individual freedom
and to grant to themselves and to our only government future power to
interfere therewith on a matter not enumerated in the First Article.
Naturally, as real fact would make manifest the absurdity of such
proposal, he states that, when the Constitution was made, “by votes of
the Southern States the power to amend the federal Constitution was
vested in three fourths of the states.” Undoubtedly he meant us to
understand that the Constitution (through whose real making we have
just lived) was made by the states and that the Southern States granted
to the legislatures of three fourths of the states the omnipotent
ability over the human beings of America, which those human beings
themselves had denied to the English king and his legislature. That he
meant us so to understand we shall learn to a certainty in a moment.
Meanwhile, let us note how inadvertently he states part of the truth,
while omitting all reference to the part thereof which would make his
own proposal the clear absurdity which it was.
We note his reference to that part of the Fifth Article which
_mentions_ the ability of three fourths of the state legislatures to
amend the _federal_ Constitution. Because we have lived through the
days of the real American leaders, we recall that our Constitution
is both _federal_ and _national_ and that state legislatures always
had ability to make _federal_ Articles and never had ability to make
_national_ ones. We also remember that those state legislatures were
permitted, by the people who made our Constitution, to retain some
of the ability they had and were given no new ability. We also
remember that the Fifth Article mentions their existing ability to
make _federal_ Articles and prescribes, as the command of the people
of America, that a “Yes” from three fourths of them shall validly make
a change in the _federal_ part of our dual Constitution. For which
reason, with somewhat of amusement, we note Sheppard’s inadvertent
accuracy of statement, when he says that three fourths of the state
legislatures may amend the _federal_ Constitution. With our knowledge,
we do not care what he meant or intended that others should understand.
We know that nothing has been more definitely settled in America, since
1776, than that legislative governments never can make a _national_
Article or change our _national_ Constitution.
We now come to that part of Sheppard’s oration in which he makes
certain his remarkable “knowledge” that our Constitution was made by
the states--which are political entities--and not by the people of
America. With a complacency requisite in one who advocates that unique
constitution of a new kind of government in America, government of
the people by government without authority from the people, we find
him quoting from Calhoun of 1833 the doctrine that the states made
the Constitution. “In this compact they have stipulated, among other
things, that it may be amended by three fourths of the states; that is,
they have conceded to each other by compact the right to add new powers
or to subtract old, by the consent of that proportion of the states,
without requiring, as would otherwise have been the case, the consent
of all.” (_Congressional Record_, Vol. 55, p. 5553.)
The history of America from May 29, 1787, to July 30, 1917, was
clearly a sealed book to Sheppard of Texas on that later day.
On May 30, 1787, at Philadelphia, Randolph of Virginia offered the
three Resolutions, which proposed that the people of America create
a nation and absorb into their _national_ system the _federal_ union
which had been made by the states. The first resolution was to express
the sentiment of the convention “that the union of states merely
_federal_ will not accomplish the objects”; the second was to express
the sentiment that “no treaty or treaties among the whole or part of
the _states_, as individual sovereignties, would be sufficient”; and
the third was to express the sentiment “that a _national_ government
ought to be established, consisting of the supreme legislative,
executive, and judiciary.”
The work of that Philadelphia Convention was carried to a successful
conclusion on the basis of those sentiments. When their proposed
Constitution had been worded, it was sent to and made by the one people
of America, _not by the states_.
The Constitution of the United States was ordained and established,
not by the states in their sovereign capacities, but emphatically,
as the Preamble of the Constitution declares, by the “people of the
United States.”
So declared Justice Story, from the Bench of the Supreme Court, as far
back as the decision of Martin v. Hunter’s Lessee, 1 _Wheat._ 324. As
Story was an associate of Marshall on that Supreme Court, and as he is
recognized as one of the greatest exponents of our Constitution, we
average Americans prefer his knowledge to that of Sheppard even when
the latter does quote from Calhoun. Furthermore, in an unbroken line of
decisions, extending over the entire period of more than a century of
whose history Sheppard knows naught, the Supreme Court has insistently
proclaimed the same fact, namely, that the people of America--not the
states--made our Constitution.
“It is no longer open to question that by the Constitution a nation
was brought into being, and that that instrument was not merely
operative to establish a closer union or league of States.” (Justice
Brewer, in the Supreme Court, Kansas v. Colorado, 206 _U. S._ 46.)
Indeed, many men before Sheppard have attempted to deny that fact.
History, however, records no successful denial. As Sheppard states, the
words of Calhoun were from his reply to Webster in 1833. In the history
of a century, all a sealed book to Sheppard, Haine also asserted,
against Webster, the belief of Calhoun and Sheppard as to what were the
facts of the making of our Constitution. We average Americans, in an
earlier chapter herein, have read Webster’s statement as to what were
the facts of that making. Having lived, ourselves, through the days
when the Americans did make their own Constitution, we agree wholly
with Webster and the Supreme Court and know that the states had no
part whatever in its actual making. Over fifty years ago, however, it
became absolutely immaterial, except for academic purposes, what might
be the personal beliefs of ourselves or Calhoun or Haine or Sheppard
or Webster. Shortly after the middle of the last century, the Southern
States, just as unwilling as Sheppard in 1917 to accept the unalterable
decision of the Supreme Court that our Constitution is not a compact
between states, appealed to the only tribunal to which there is any
appeal from that Court, the tribunal of civil war. Even Sheppard must
know the result of Gettysburg, the surrender forever of any claim that
the Constitution is a compact between the states. Even Sheppard must
some time have heard the echo of Lincoln’s appeal, at Gettysburg, that
government of the people, by them and for them, should not perish from
the earth. Even Sheppard must recognize, whether or not he wish to do
so, how successfully the American people, whose predecessors made the
Constitution, answered that appeal of Lincoln and intend to keep our
government a government of the people, by them and for them, instead of
a Sheppard government of the people, by governments without authority
from the people.
We average Americans, however, do not question the wisdom of Sheppard
in quoting the repudiated claim of Calhoun, so long as Sheppard and
his colleagues intended to continue their effort to impose upon us the
new constitution of a new kind of American government, which is their
Eighteenth Amendment. If he and they were to find anywhere citations
in support of the ability of governments in America to exercise and
to grant undelegated power to interfere with human freedom, to what
source could he or they go for such citations? Their proposition
depended wholly for its validity upon the Tory concept of the relation
of government to its assets and subjects, the people. And, in the
five volumes of the records of the conventions of the Americans, in
the two volumes of _The Federalist_, and in over two hundred volumes
of American decisions in the Supreme Court, he and they knew that no
single citation of authority could be found to support the idea that
we Americans are “subjects” and not citizens. In the face of such a
situation, he and they had but a choice between the repudiated claims
of Calhoun and Haine or the concepts of Lord North and his associates
in the British Parliament of 1775. We average Americans know what
choice we would have made, _under such circumstances_. For which reason
we are not surprised to find Sheppard, after his remarkable quotation
from Calhoun, continuing on to say that the states “by reserving to
themselves the unqualified and exclusive right of amendment kept intact
their sovereign capacity in so far as the organic law of the nation was
concerned.” (_Congressional Record_, Vol. 55, p. 5553.)
With the Supreme Court, we have always known and we still know, despite
Sheppard, that the people of America did all the reserving that was
done and which the Tenth Amendment merely declared had been done. We
note, with intent to remember, how clearly Sheppard demonstrated his
total ignorance of the most important factor in that Tenth Amendment,
“the people,” and of the most important factor in the Fifth Article,
the mention of the reserved exclusive ability of the people themselves,
assembled in their “conventions,” to amend or change or add any
_national_ Article in their Constitution.
As we go on with his oration of that July day, we find him insisting,
as we found the House insisting on a later day, that the states and
their legislative governments are all the protection to our individual
liberties which the American people were able to attain by the efforts
of those remarkable years from 1775 to 1790. Curiously enough, that
insistence is mentioned in the same breath in which he suggests that
we, the citizens of America, have some rights, evidently in the nature
of privileges which a government confers on its subjects. This is what
he has to say: “In refusing the people the right to appeal to the only
tribunal having power of amending, the tribunal of the states, for the
redress of what they consider one of the most terrible grievances in
the republic, Congress would deny to them one of the most sacred of all
rights, the right of petition.”
Why should the supreme legislature not deny that right of petition to
us, if the inferior state legislatures, who are not governments of the
citizens of America, claim power to deny us any right they please, as
they do by their supposed Eighteenth Amendment to our Constitution?
But we waste time on this Sheppard. Let him say his own farewell to
us; the citizens of America, in his closing words of July 30, 1917.
As Webb, in the House, closed with his eloquent appeal to every true
Mohammedan, we naturally find Sheppard closing with his appeal to
whatever Tory sentiment believes that the same most important factor in
the Tenth Amendment and the Fifth Article should be equally ignored.
“At the close of this debate we will have an opportunity to enable the
states to exercise their highest function--the right to shape, alter,
and develop the federal Constitution. They are the proper tribunal to
decide the fate of this Amendment. They compose the mightiest array
of free commonwealths united in a federated whole the world has ever
seen.... If there is anything in the Amendment subversive of _their_
liberties and _their_ welfare, _they_ can be trusted to condemn it.
Let not Congress assume to judge for them. Let Congress discharge its
preliminary task of submission and stand aside. Let it put in motion
the referendum provided by the national organic law--the method of
amendment the states themselves established when they created the
Constitution. Let the states perform the duty which remains the sole
instance of their sovereignty over the federal government itself.”
(_Congressional Record_, Vol. 55, p. 5554.)
If it were still 1833, if there never had been a Gettysburg or an
Appomattox, could Calhoun himself have done better? If there never had
been the Statute of 1776 or an American Revolution to make it the basic
law of America, could any Tory peer in the Westminster Parliament of
1775 have been more zealous to see that the states themselves--which
are mere political entities--should determine whether there was
anything in the Eighteenth Amendment “subversive of _their_ liberties
and _their_ welfare?” If there is, “_they_ can be trusted to condemn
it.” Let _our_ “Congress discharge its preliminary task of submission
and stand aside.” What if there is anything in the Amendment subversive
of _our_ liberties and _our_ welfare? Why should _we_ be trusted with
the opportunity to condemn it, the opportunity which we reserved
exclusively to ourselves by the most important factors in the Tenth
Amendment and the Fifth Article?
Why should we remember that Jefferson, also from a Southern State,
penned the Statute of 1776 in which the American people commanded that
no government acquire power over people except from people and not
from governments? Why should we remember that Pendleton, also from the
South, while actually engaged with all the rest of the American people
in making the First Article, referred to it and asked, “Who but the
people can delegate powers? What have the state governments to do with
it?” Why should we remember that Wilson, in the previous December, that
of 1787, said of our Constitution, “Upon what principle is it contended
that the sovereign powers reside in the state governments? The proposed
system sets out with a declaration that its existence depends upon
the supreme authority of the people alone? How comes it, sir, that
these state governments dictate to their superiors--to the majesty of
the people?” Why should we remember that Webster, answering Hayne and
Calhoun, said, also speaking of our Constitution, “While the people
choose to maintain it as it is--while they are satisfied with it, and
refuse to change it--who has given, or who can give, to the state
legislatures a right to alter it, either by interference, construction,
OR OTHERWISE?... Sir, the people have not trusted _their_ safety, in
regard to the general constitution, to these hands. They have required
other security and taken other bonds.” (4 _Ell. Deb._ 508.)
It is true that these earlier Americans have clearly in mind the most
important factor in both the Tenth Amendment and the Fifth Article. But
it must not be forgotten that Pendleton and Wilson and the Americans of
that day, in making our Constitution, in constituting a new government
and giving to it some powers over the freedom of human beings, were
acting entirely outside any written law except the Statute of ’76. Is
not their example a sound precedent for those who are now constituting
a new government of Americans and giving it power over their freedom,
for those who made the Eighteenth Amendment and those who upheld its
validity? What if the makers of the new government are themselves
government? If governments choose to act outside of all written law
and to ignore that part thereof which is the important factor of the
Tenth Amendment and the Fifth Article, are these governments not
emulating the example of the American people in 1787? True, these
American people did act in strict conformity to the Statute of 1776,
and this modern constitution of new government by government is not
in conformity with that Statute. But was not that Statute itself
the revolt of human beings against government? If human beings, by
successful revolt against government, could change themselves from
subjects to citizens, why cannot government, by successful revolt
against human beings, change them from citizens to subjects?
If, however, Sheppard and Webb and those of their Tory faith insist
that the new constitution of government is in _our_ Constitution, and
put there validly, under claimed grant from us to state governments of
omnipotence over American citizens, we, on our part, know that their
claim is without the slightest support. Moreover, our knowledge in
that respect is knowledge of indisputable legal fact. That the fact
would be equally indisputable, even if our Constitution was a compact
between states, as Calhoun did claim, and as Sheppard does claim, we
can clearly demonstrate even to Sheppard himself. Our education with
the earlier Americans, who changed their status from that of subject to
citizen, has taught us all we need for that demonstration.
Let us assume, what Sheppard asserts, that the states made the
Constitution, that it _is_ a compact between states. Sheppard is a
Texan. If our Constitution is a compact between states, the State
of Texas is one of the parties to that compact. We ask Sheppard
whether he and the other Texans _are_ the State of Texas or whether
the legislative government in Texas is the State of Texas? If he
answers that the Texas legislature is the State of Texas, we proceed
no further. That answer will be his frank confession that the Texan is
a subject of the Texas government and not a citizen or member of the
Texas State.
On the other hand, if he answers that the human beings of Texas are
the State of Texas, we do proceed further. We proceed along the most
definitely settled legal principle in America. If the human beings in
Texas are its citizens and constitute its State, the constitution of
Texas is their creation and the legislature of Texas is the creature
of that constitution. From the Texans, through the creation which is
their constitution, that legislature derives its every power over
the human beings in Texas and cannot have any _such_ power except by
grant from those human beings themselves. That is the law of Texas,
settled by hundreds of decisions in Texas and America. Now, if our
American Constitution is a compact between the State of Texas--the
human beings in Texas--and the other states--the human beings in the
other states--how comes it that the mere creature of the Texans,
without power over them except from them, can, by combination with
other servant legislatures outside Texas, give to itself and to other
governments outside Texas a new power to interfere with the freedom of
the human beings in Texas?
We are rather afraid that Sheppard and those of his faith, even
assuming that our Constitution is a compact between states, have
entirely overlooked the legal fact that a government is not the State
in America. We are rather afraid that they have reverted to what
Madison called “the impious doctrine of the Old World,” namely, that
the government is the State and the human beings are its asset and its
property. We are rather afraid that they agreed with the concept of
Louis of France, expressed in his famous “I am the State.”
On no other basis can we explain their complete ignorance of the one
important factor in the Tenth Amendment and the Fifth Article, “the
people” of America, who, assembled in their “conventions,” as mentioned
in the Fifth Article, are the citizens of America and compose the State
or Nation of America.
We average Americans, in the light of our education, reading the record
of that July 30 in our Senate, would have thought, _were it not for
one fact_, that every senator was using the expurgated edition of the
Constitution, which Webb later used in the House, and which omits
entirely from the Fifth Article the words, “by conventions in three
fourths of” the states. Were it not for that one fact our thought
would have been justified. We know that the proposition of Sheppard,
embodied in his Senate Resolution No. 17, was that the proposed new
Article should be referred to the tribunal of the state legislative
governments. We know, and we have quoted his own statement, which is
the basis of that knowledge, that he held that legislative tribunal to
be “the only tribunal having power of amending” our Constitution. We
know that he held this legislative tribunal to be “the proper tribunal
to decide the fate of this Amendment.” We know his confidence that this
legislative and government tribunal has “the right to shape, alter, and
develop” our Constitution, ordained and established by the citizens of
America. His conviction, in this respect, is stamped indelibly on our
mind, because it came in such sharp conflict with our knowledge that
_all_ Americans of an earlier day held that every _national_ Article,
like the First Article and the supposed Eighteenth Amendment, must be
referred to that other tribunal, the only tribunal competent to make
_such_ Articles where men are citizens and not subjects, the tribunal
of the American citizens themselves, the tribunal mentioned in the
Fifth Article in the words “by conventions in three fourths of” the
states in America.
We know, therefore, inasmuch as neither Sheppard nor any senator but
one apparently knew of the existence of that other and supreme tribunal
or of the presence of those words in the Fifth Article, that all
senators save that one must have been using an expurgated edition of
the Fifth Article.
On that July 30 we find Senator Ashurst making plain that he has our
edition of our Constitution. He said, “When our federal Constitution
was written in 1787, two methods of amending were provided; and, unless
I am mistaken, it was the first written constitution in history which
provides for two methods of amendment.” This brief and simple mention
of that significant fact, in relation to the Fifth Article, seems to
have been the only cognizance of the fact itself, in the Senate of that
day or in the entire subsequent history of the Eighteenth Amendment,
even in the great litigations about it in which were arrayed against
one another the most renowned “constitutional” lawyers in America.
So far as would appear from the Senate record, no knowledge of the
amazingly important effect of that Fifth Article _mention_ of two
distinct powers (one limited and then existing in government and the
other unlimited and then and now existing in the American people) to
make future Articles was acquired in the Senate or afterward, from the
fact itself or from Ashurst’s allusion to the fact.
Back at Philadelphia in 1787, Gerry, always Tory in his mental attitude
to government and human being, realized fully the amazing importance
of this Fifth Article mention of the two then existing powers to
make Articles, the limited power of legislative governments to make
_federal_ Articles (which had made all the federal Articles of 1781)
and the unlimited and _exclusive_ power of the people themselves
to make _national_ Articles, which had been exercised to make the
national Articles in each existing state constitution, and which the
Philadelphia Convention had already ascertained and held was the _only_
power competent to make such Articles as their own proposed First
Article and the Eighteenth Amendment. While the Philadelphia Convention
had been discussing and deciding that their proposed Constitution,
because of its First Article, the real constitution of government, must
be referred to the people, Gerry had always opposed that decision. He
had always fought to have that First Article sent to government, to
have its grants of power over the freedom of men made by government
to government. When, therefore, the closing business day of that
Convention was reached on September 15, 1787, he made his final and
consistent Tory effort that citizens should be asked to make a Fifth
Article which would change them back again to the subjects they had
been in 1775. That effort was his motion of September 15 to strike
from the Fifth Article, as we know it, the words “or by conventions in
three fourths of” the states. He knew, as we know, by reason of our
education with the Americans who defeated his effort, that those words
are the Fifth Article _mention_ of the then existing only ability in
America which then could or now can make such Articles as the original
First Article or as the supposed Eighteenth Amendment. He knew, as
we average Americans now know, that, only _if_ such mention _were_
stricken from that Fifth Article, could any future possible claim
be made that legislative governments have ability to exercise or to
grant undelegated power to interfere with individual freedom. With the
important object in mind, that he secure _some_ foundation for such
claim in the future, he made his motion to strike that mention of our
exclusive power from that Fifth Article. As we average Americans know,
his effort to have a convention even propose such a Fifth Article to “a
people better acquainted with the science of government than any other
people in the world” was beaten by the decisive vote of 10 to 1.
The proposal of the Eighteenth Amendment by government to government
was the attempt of our servant American government to reverse the
result of that vote of September 15, 1787. The action of the state
legislative governments in America upon that proposed Eighteenth
Amendment was an action depending _entirely_ for its validity upon a
recount of that vote and the assumption that the convention did strike
out that mention of our exclusive power to make national Articles and
that the Fifth Article went to the American people and was made by
them _without that mention in it_. For which very obvious reasons, we
average Americans do not understand how the fact, to which Ashurst made
brief allusion on July 30, 1917, was not the basis of every attack made
in the Supreme Court by many of the most renowned “constitutional”
lawyers in America, when they did assail the validity of that
Eighteenth Amendment.
It is difficult to pick out the one most remarkable thing in the
complete story of the last five years. Yet we are inclined to believe
that, from a certain point of view, the one most remarkable thing
is the absolute failure of even one of those renowned lawyers to
appreciate or know or mention the fact and its _decisive_ effect
upon the alleged validity of the Amendment they challenged, the fact
that the Fifth Article does name two future makers of Articles, the
governments which could and did make the federal Articles of 1781,
but which neither could nor did make the First Article of 1787 or the
Eighteenth Amendment of 1917, and the citizens of America, who could
and did make the First Article of 1787 and who alone can make but have
not made the Eighteenth Amendment.
Even Ashurst seems to have known that it was remarkable, unique in
history, for the Fifth Article to name two different makers of future
Articles. It is amazing that the imperative reason for this naming
of two makers, distinct and different in their ability to make,
never suggested itself to any of the renowned lawyers of 1920, even
though they knew the dual nature, _national_ and _federal_, of our
Constitution. It is amazing when we realize that the Supreme Court, in
1819, had stated, as an obvious thing, that, when the First Article
(granting power to interfere with the freedom of men) was proposed,
the legal “necessity of referring it to the people, and of deriving
its powers _directly from them_, was felt and acknowledged by all.” It
is amazing when the same Supreme Court in 1907 had authoritatively
repeated that statement: “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.”
However, we average Americans, still pursuing the history of America
to learn when we again became “subjects,” will later herein consider
the litigation about the Eighteenth Amendment. So far as the Senate
is concerned, we leave it on December 18, 1917, the day on which it
finally proposed that legislative governments make the Eighteenth
Amendment, whose Second Section was exactly of the same nature as the
First Article, namely, an Article of the kind which the Philadelphia
Convention of 1787 had known never could be made by legislative
governments in America. In that Senate, as in the House, the public
record discloses no American who did not ignore the most important
factor in the Tenth Amendment and the Fifth Article, no American
who knew the legal necessity of deriving, directly from the people
themselves, every power to interfere with the individual freedom of the
people.
So far as history tells the tale, in the legislatures of the states,
that legal necessity was “known and acknowledged” by none. There were
many therein, as there were many in the later court litigations, who
opposed the making on the ground of its unwisdom. There were also many,
again as in the later litigations, who contended that there should be
no interference with the freedom of American citizens, as such, except
on the matters enumerated in the First Article. But, neither in our own
American legislature nor in these state legislatures, as in the later
litigations, was there one who knew the only legal and maintainable
ground for that belief, the legal fact, as the Philadelphia Convention
found it, that only the American people could validly grant government
power to interfere with their individual freedom, and the legal fact
that the American people, constituting their government, kept the legal
situation, in that respect, exactly as the Philadelphia Convention
found it, by the most important factors in the Tenth Amendment and the
Fifth Article.
The amazing haste with which the ratifying legislatures exercised, for
the first time in America, this imaginary power to interfere with the
individual freedom of the American citizens is a matter of history. The
manner in which that legislative exercise of imaginary government power
over subjects was secured in many states is something with which we are
all familiar. We desire, however, to emulate the example set by Madison
and Hamilton in _The Federalist_, so far as judgment can restrain the
honest indignation of citizens, when government undertakes to make
them “subjects.” Therefore we leave it entirely to those who uphold
the validity of the supposed new Amendment to substitute irrelevant
matter, mostly personal abuse that is harmless in view of its source,
for the sound legal arguments in support of validity, which they can
never find until the Statute of ’76 is repealed and our constitutions
of government are so changed that we cease to be citizens and become
the subjects our ancestors were in 1775.
For those who would like to look upon all American governments as
model exemplars of American respect for American law and American
constitutions, the date of the proposal in December, 1917, and the
quickness of ratification and the manner in which ratification was
largely secured, are all matters most unpleasant to contemplate. Even
now the most sincere advocate of the new Amendment never speaks of
it without unwittingly showing his chagrin at the general knowledge
that it _was_ proposed and passed by governments when millions of the
citizens of those governments were fighting and were armed to fight for
human liberty, and that even governments would never have dared to pass
it except at that particular time.
These facts, however, reflect only on the virtue of the Amendment. They
have no bearing upon its validity. We average Americans are interested
now only in that claimed validity. We know that, if it is valid, we
have become subjects, that we are no longer citizens. We are seeking
to find out when and how that change was made in our relation to all
governments in America. Beginning on July 4, 1776, we have come down
to December 18, 1917. We have found ourselves, on that day, still
citizens. We know that our servant legislature at Washington made a
proposal on that day, which was legally absurd, unless we had already
become subjects. We have listened carefully to what they had to say,
in support of that proposal, and have ascertained that they neither
knew nor understood the most important factor in our Tenth Amendment
and Fifth Article, by which our ancestors kept their own and our status
as citizens. We know that the state legislatures could not change that
status. Therefore we now simply note the fact that, in 1918, some of
them ratified the proposal on the basis that all of us were their
subjects. We know that our own government at Washington has acted,
whenever it felt disposed to enforce the supposed new command against
us and not to disobey it openly itself, as if we _were_ the subjects of
those ratifying legislatures.
We know also that in 1920, after more than a year of exhaustive
study of our history and our Constitution and our laws by hundreds
of our most eminent lawyers, all working for one object, the legal
demonstration of the invalidity of the new Amendment, a chosen
number of the most renowned “constitutional” lawyers in America
appeared in the Supreme Court and orally argued against validity
and filed the briefs against validity which were the result of this
concentrated effort. We know also that, in that court, on behalf of
our own government and on behalf of those other governments which
that government has proclaimed to be the supreme dictator in America,
there also appeared another chosen array of the most renowned
“constitutional” lawyers, in the forefront being a former justice of
that court, now the American Secretary of State. This latter array
appeared to demonstrate how and when, since 1790, our own status was
changed from citizen to subject and the collective legislatures of
some of the states were substituted for ourselves as possessors of the
supreme constitutional will in America.
We average Americans, therefore, to complete our education, now turn to
the arguments of these lawyers and to their briefs, with somewhat of
chagrin at our own unaided ability to ascertain the “when” and “how”
_we_ became subjects and _our_ Constitution, in its _national_ Articles
and aspect, became the creature of legislative governments, although
the American people originally created it to be the master of all
governments.
CHAPTER XIX
ARE WE CITIZENS?
“The establishment of a Constitution, in time of profound peace, by the
voluntary consent of a whole people, is a prodigy.” (_Fed._ No. 85).
Those were the words of Hamilton, in a final appeal to the people of
America, as they were about to assemble in their “conventions.”
As he thought it a prodigy that their voluntary consent should be
secured to that constitution of government contained in the First
Article, he frankly added that he looked forward “with trembling
anxiety” to their own determination as to whether or not _they_ would
give that _necessary_ consent to the enumerated grants in that First
Article. We know how the patriotic efforts of himself and Madison and
his other colleagues were later rewarded by the giving of that consent.
We know _where_ those average Americans of that day gave that consent,
_where_ they made that constitution of their _national_ government
which is that First Article. “It is true, they assembled in their
several states--and where else should they have assembled? 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. Of consequence, when _they_ act, they act _in_ their
states. But the measures _they_ adopt do not, on that account, cease to
be the measures of the people _themselves_, or become the measures of
the state _governments_.”
In the many other Supreme Court decisions, telling the tale of the
completion of the “prodigy” and all stating the same legal fact, is
there a more apt and accurate expression of the knowledge of the
American people, who were better acquainted “with the science of
government than any other people in the world,” that the “conventions”
in the respective states, assembled to constitute their American
government by grants like those in the First Article and the
Eighteenth Amendment, are the Americans themselves and that the state
_governments_ never are the American people themselves and never
represent _those_ people for _national_ purposes. It was natural that
such apt and accurate expression of that concept should have been
voiced by Marshall in the Supreme Court. He had been one of those
people, fighting on the battle-field with them to wrest from all
governments in the world any ability to constitute government by making
grants like those in the First Article or the Eighteenth Amendment. He
had been one of those people in one of those “conventions,” in their
respective states, where _they_ made the only Article _of that kind_
which ever entered their and our _national_ American Constitution.
Later it became his privilege and duty (_and our great good fortune_)
to explain _who_ alone could make and did make that First Article and
_who_ alone can ever validly make Articles like it or the Eighteenth
Amendment, namely, the American people themselves, assembled in
convention in their respective states.
When, therefore, we read the Fifth Article, made by him and his fellow
Americans in those “conventions,” we recognize at once and we will
never forget or ignore _their_ mention of _themselves_, in the very
word by which he and they then described _themselves_, “conventions” in
their respective states.
In making the Eighteenth Amendment grant of power to interfere with
American freedom, we--the American citizens and “conventions” of this
generation--have been ignored as completely as if we were not named in
the Fifth Article.
We have been trying to ascertain “when” and “how” the American human
beings, now ourselves, ceased to be “citizens of America” and again
became “subjects” of governments. We have gone to the record of our
Congress on those days in 1917, in which it acted on the assumption
that the “when” and “how” were already history. We have found no
Senator or Congressman who vouchsafed any information or displayed any
knowledge of this matter, so vitally important to us who were born
citizens and free men. We have seen the leader of the House advocates
of the new constitution of government, the Eighteenth Amendment,
read a Fifth Article in which the “conventions” of those who made it
and the First Article are not mentioned. We have seen the leader of
the same advocates in the Senate complacently assert the repudiated
thought that the states made the First Article, our constitution of
_our_ government. We have seen him follow up this error with the Tory
mistake of assuming that the government of the state is the state. We
have seen him point out, to our American amazement, the remarkable
and hitherto unknown fact, never mentioned by the people who made the
Fifth Article, that the state governments are the only tribunal in
which our _national_ constitution of government can be changed, that
those governments are a tribunal in which new enumerated power can be
given by government to government to interfere with our own individual
freedom.
Fresh from our education with the Americans who made that Fifth
Article in “conventions” of the very kind mentioned therein, we see
that those legislators of 1917 know naught of American history or law
or constitution of government of men, that from them we cannot learn
“when” or “how” we ceased to be “citizens” and became “subjects.” But,
there assembled in the Supreme Court in March, 1920, many renowned
“constitutional” lawyers. Some came to challenge, some to uphold the
new Amendment, the new government-made constitution of government right
to interfere with individual human freedom.
To the reading of all their briefs and arguments we bring our knowledge
that the new Amendment never entered our Constitution _unless_ we were
“subjects” before 1917 or _unless_ the new Amendment was itself a
revolution (by government against citizens) which made us “subjects.”
We expect the lawyers _against_ the new Amendment to challenge its
existence with the facts and knowledge we bring from our education with
the Americans who made themselves free men and citizens.
We expect the lawyers _for_ the new Amendment to point out the day and
the manner in which they claim that government of the American people
by the American people _did_ disappear from America.
Unless these lawyers for the Amendment do point out that day and manner
and sustain their claim as to both, we know that the existence of the
new Amendment is successfully challenged by the facts which we have
acquired in our education. Before we listen to the expositions of
these facts by the lawyers against the new Amendment, let us briefly
review the facts themselves as they bear upon the supposed existence of
the new Amendment.
When 1776 opened, the American people were subjects in rebellion
against their omnipotent government. By direct action of themselves, in
July, 1776, they made themselves free men, made their former colonies
independent states and made each of themselves a citizen of some one of
those states. Almost immediately, the Statute of ’76 having declared
the actual fact that the supreme will in America was possessed by the
American people, at _their_ suggestion and with _their_ permission,
the citizens of each state constituted their own government with its
_national_ powers to interfere with the individual freedom of its own
citizens. In strict conformity to the Statute of ’76 and to the sole
American concept of the relation between government and human being,
those grants of power to interfere with individual freedom, like every
other grant _of that kind_ until the Eighteenth Amendment, were made by
the respective citizens to their respective governments.
In 1777 the committee of the American people known as the Second
Continental Congress proposed a union of states or political entities
and a general government to govern states but not to interfere directly
with the human freedom of the individual. Because there is a vital
distinction between the ability to govern states and the ability to
interfere with individual freedom, those Americans knew that states or
political entities could make _federal_ Articles but that only citizens
could ever validly make _national_ Articles. It was impossible for
these Americans not to know this difference between the respective
abilities of states and citizens of America. Their Statute of ’76
had declared this sole American concept of the law controlling the
relation of government to human being. They were actually engaged in
their Revolutionary War for the very purpose of making it forever
American law that no governments could ever grant _national_ power in
any matter. Because, therefore, the proposed Articles of 1777 were
only _federal_ Articles with grants of _federal_ power, it was “felt
and acknowledged by all” that the state legislatures were competent
to make _those_ Articles. So we recall, with intent to remember, that
those _federal_ Articles were made in the exercise of that legislative
government ability to make _federal_ Articles, which is mentioned in
our own Fifth Article.
In 1787, from the same Philadelphia, there came the proposal that
the American people, collectively the possessors of the supreme will
in America, create a new nation, with themselves as its members or
citizens and, as its members, constitute its government with _national_
powers to interfere with their own individual freedom. Because the
legal necessity of deriving powers _of that kind_ from the people
themselves was “felt and acknowledged by all,” the inevitable legal
decision was reached at Philadelphia that the existing ability of
legislative governments to make _federal_ Articles neither then did
nor ever could include the ability to make _national_ Articles like
the First Article and the supposed Eighteenth Amendment. By reason of
that legal necessity and its then recognition by all, because the First
Article contained grants of _national_ power, “by the convention, by
Congress, and by the state legislatures, the instrument was submitted
to the people. They acted upon it in the only manner in which they can
act safely, effectively, and wisely on such a subject, by assembling
in convention.” The reasoning and the decision itself were embodied in
Article VII and in the Resolution which went from Philadelphia with the
proposed seven Articles, including the Fifth Article.
As the Supreme Court has definitely settled, the Tenth Amendment
merely declares what was in that original proposed Constitution.
Therefore the Constitution gave no new government ability anywhere
except to the government at Washington. It gave to that government only
specific ability to govern human beings, in certain matters. It merely
_reserved_ to _each_ state government some of its former ability to
govern its own citizens. It gave neither to any state government nor
to all state governments collectively any new ability to govern. And
it reserved to the American people themselves all ability to exercise
or to grant any _national_ power to interfere with the freedom of
American citizens except those enumerated powers in the First Article.
The Supreme Court has definitely settled that this reservation of such
power exclusively to themselves, by the makers of the Fifth Article, is
the most important factor in our constitutional distribution of that
kind of power among our American government, our state governments
and, most important of all, ourselves, the citizens of America. For
which reason, until this generation, it has always been axiomatic that
the mention of that exclusive ability of our own, “conventions” of
_Americans_ in their respective states, is the most important factor in
the Fifth Article.
In strict conformity with the Statute of ’76 and without usurping
the reserved powers of the most important factor in both the Tenth
Amendment and the Fifth Article, seventeen _federal_ changes were made,
between 1789 and 1917, in the _federal_ part of our Constitution, which
is both a _federal_ and a _national_ Constitution. The situation in
1917 was exactly the same as it had been since July 4, 1776, when it
was known even to the humble townsmen of Concord that governments could
not make _national_ Articles in American constitutions. Or rather, the
situation in 1917 was the same _unless_, somewhere prior to 1917, the
Statute of ’76 had been repealed and the most important factor in both
Articles had been eliminated from the Fifth Article and Tenth Amendment
of the American Constitution, which is the security of the American
citizen against usurpation of power even by governments in America.
We know that Gerry moved to strike that important factor from the Fifth
Article in September, 1789, and that he failed in his effort. We know
that Webb and the legislative advocates of the new Eighteenth Amendment
had a Fifth Article in which that most important factor was not
present. Apparently they based their government proposal and government
ratification of the Eighteenth Amendment upon a Fifth Article which did
not contain that most important factor, the reference of the makers of
the Fifth Article to themselves as the makers of all future Articles
of a _national_ kind, the reference of those makers to themselves in
the words “conventions” of the American people, assembled in their
respective states.
Keeping all these settled facts clearly in our minds, we now take
up the arguments and the briefs in which, in March, 1920, the
constitutional lawyers of America, who disputed the presence of
the new Amendment in our Constitution, should have presented these
irresistible facts. Then we shall take up the arguments and briefs of
those other renowned lawyers in which _they_ presented those other
facts (still unknown to us average Americans) which can alone refute
our knowledge that the new Amendment never went into our Constitution,
because we are still citizens and governments are yet unable to create
government power to interfere with our individual freedom.
CHAPTER XX
LEST WE FORGET
“The important distinction so well understood in America, between
a _Constitution_ established by the people and _unalterable by the
government_, and a _law_ established by the government and alterable by
the government, seems to have been little understood and less observed
in any other country.... Even in Great Britain, where the principles
of political and civil liberty have been most discussed, and where we
hear most of the rights of the Constitution, it is maintained that the
authority of the Parliament is transcendent and uncontrollable, as well
with regard to the Constitution, as the ordinary objects of legislative
provision. _They_ [the legislature] have accordingly, in several
instances, _actually changed_, by legislative acts, some of the most
fundamental Articles of the government.” (_Fed._ No. 53.)
Coming from Madison or Hamilton, this is the best kind of testimony
that the earlier Americans, who established that constitution of
government which is the First Article, knew that it was “unalterable
by government.” And it is the best kind of testimony that the same
American makers of the Madison Fifth Article knew that it did not grant
to state governments any ability to add to or subtract from the First
Article enumerated and constituted powers in government to interfere
with the freedom of American citizens. If Madison and Hamilton had
been with us in our Congress of 1917, their statement would have been
slightly altered. They would have spoken of “the important distinction
so well understood in America” in 1787, as one which “seems to have
been little understood and less observed in any other country” and not
known or observed at all by our Senators or Congressmen of 1917.
The Americans of 1787, who “so well understood” the important
distinction, made their knowledge a noticeable thing in the
language of their Statute of ’76 and of their Constitution. With
their knowledge of the important distinction, they permitted the
respective states, through the respective legislatures thereof, to
constitute the government of states, to make the _federal_ Articles
of 1781. With their knowledge of the important distinction and in
deference to their own clear Statute of ’76, these intelligent
Americans refused to permit the states or the legislatures of the
states to establish the government of men, to make the _national_
Article--the First Article--which is the constitution of government
power to interfere with individual human freedom. Moreover, by their
knowledge of the important distinction and of the Statute, they knew
_that_ Constitution, that enumerated grant of national power over
themselves, to be “unalterable by government.” And that we and _all_
later Americans might also know it, _they_, the American people or
“conventions” of that day, insisted that the Tenth Amendment expressly
declare that they, those “conventions” of the American people, reserved
to themselves and their posterity, the “conventions” of any later day,
exclusive ability to alter that constitution of _national_ power, the
First Article. And, for the same purpose, _they_, the “conventions,”
mentioned themselves, the particular reservee of the exclusive ability
to alter that grant of national power, in one particular earlier part
of the Articles they made, the part we know as the Fifth Article.
Naturally, the two men, who worded that Article at Philadelphia and who
paid its later makers the deserved tribute to their knowledge of the
important distinction, mentioned those makers, “conventions,” in that
Fifth Article as future makers of all grants of _national_ power and
mentioned the legislatures, in the Fifth Article, as competent future
makers of Articles that do not constitute new _national_ government.
Because we have lived through the experience of the Americans to whom
the tribute was paid, we know the distinction between a constitution
of _national_ government, “unalterable by government,” and Articles
constituting government of political entities or states, alterable by
the states or the legislatures of the states. Moreover, by reason of
our experience, we sense the clear recognition of the distinction in
the Fifth Article distinct mention of the people or “conventions,”
as _sole_ makers of _national_ Articles, and the similar mention of
the “legislatures” as competent makers of _federal_ Articles. To our
regret, we have found that our Congress, in 1917, knew naught of the
distinction and naught of its recognition in the language of the Tenth
Amendment and the Fifth Article. It is with relief, therefore, that we
turn to the great litigations in the Supreme Court of 1920, in which
the lawyers of the America, where the important distinction was _once_
so clearly known, attacked and defended the proposal from the Congress
of 1917 and the action of the state legislatures on that proposal.
Fresh from the utter legislative ignorance of that distinction, it is
with relief that, in our first glance at the briefs of those lawyers,
we find what seems the clear echo of the accurate knowledge we have
acquired in the company of those earlier Americans.
“There is only one great muniment of our liberty which can never be
amended, revoked or withdrawn--the Declaration of Independence. In this
regard, it ranks with the Magna Charta.”
The clear tribute to the unrepealed Statute of ’76 excuses, while it
does not explain, the error of the allusion to Magna Charta. Graduate
students of the history of the advance of Americans from subjects to
free men, we average citizens grasp the error of the statement, “in
this regard [that neither can ever be revoked] the Statute of ’76 ranks
with the Magna Charta.” We know that the Statute _was_ the revocation
of the basic doctrine on which Magna Charta rested. Magna Charta was
the grant of privilege from an omnipotent government to its subjects.
All that subjects ever have are the revocable privileges granted by
the master government. The Statute of ’76 states the basic American
law that there are no subjects in America, that the human members of
any political society or state or nation, except as they directly
grant power over some of their human rights to secure enjoyment of the
rest, need obey the command of no one except Him who gave them their
human rights. In a free nation, such as the earlier Americans made of
themselves, no man has any privileges _granted_ by a master government.
In a free nation, citizens or members of the society (and the supreme
will therein) have their servant governments to which those citizens
give whatever _national_ powers those governments ever have. Except
for the grants of _such_ power which those citizens so make, the human
beings retain, not as a gift or privilege of government but as the gift
of Him Who created them, all human freedom of action. As _citizens_,
they also possess the particular privileges which arise from membership
in that particular society of men; but even those privileges are not
the gift of government but the creation and effect of the society
itself, just as every power of the government is also the gift of the
society.
We pardon the error of the reference to Magna Charta, however, when
we read on in the brief and find it immediately quoting from our
Statute: “We hold these truths to be self-evident, that all men are
created equal; that they are endowed by their Creator with certain
unalienable Rights; that among these are Life, Liberty and the pursuit
of Happiness. That to secure these Rights, Governments are instituted
among men, deriving their just powers from the consent of the Governed.
That whenever any Form of Government becomes destructive of these ends,
it is the Right of the _People_ to alter or to abolish it, and to
institute new Government, laying its foundation on such principles and
organizing its powers on such form, as to _them_ shall seem most likely
to effect _their_ Safety and Happiness.”
At last, in this brief, we are getting the clear echo of our own
knowledge that, _until this Statute is revoked_, it is not the right
of “_government or governments_” to institute new government, laying
its foundation on such principles and organizing its powers in such
form as to “governments” shall seem most likely to effect the safety
and happiness “of governments.” Moreover, in this brief, we are getting
the clear echo of our own knowledge that this Statute can _never_ be
revoked, while we remain free men and citizens instead of the subjects
we were until that Statute was enacted.
And when we turn to another brief for a moment, we are cheered to find
the refutation of the Sheppard ignorance of the identity of those who
made _our_ Constitution, “We, the people of” America, in its Preamble
and its most important factor of the Tenth Amendment, the “conventions”
of ourselves in its Seventh and its Fifth Articles. With gratification
that some “constitutional” lawyers still know and observe the important
distinction between the ability of ourselves, the “conventions”
of the Seventh and Fifth Articles, and the lack of ability in the
“legislatures” of the Fifth Article to give to government _national_
powers, we average Americans recognize, in the following challenge
of _this_ brief, the challenge we would have made to the Sheppard
proposition that legislatures attempt to constitute such new government
over us. This is the challenge of the brief to Sheppard: “The
Constitution is not a compact between states. It proceeds _directly_
from the people. As was said by Mr. Chief Justice Marshall in McCulloch
v. Maryland, 4 _Wheat._ 316, etc.” Then follows the Marshall clear
exposition of how the people themselves, the “conventions,” made
the constitution which is the First Article and how, if any other
constitution of that kind, such as the Eighteenth Amendment, is ever
to be made “safely, _effectively_, and wisely” it must be made by
ourselves, assembled in the “conventions” named in the Fifth Article.
The full extract from Marshall has been set out already herein at page
98.
In a second brief, in a different case, the same distinguished lawyer
of 1920 is found bringing into bold relief another part of our
knowledge so intimately connected with the supposed new constitution of
government, the Eighteenth Amendment. And it is a part of our knowledge
which challenges a new constitution made entirely by governments
without any action by ourselves, the people or the “conventions” named
repeatedly in the Constitution made by themselves. In that other brief,
we find him stating as one of the propositions on which he bases his
argument, “What the expression ‘legislatures of the several states’
meant as used in Article V, when that Article was adopted as a part
of the Constitution, it means now.” The statement being undeniably
true, he immediately proceeds to urge, with equal truth, that “however
popular approval or disapproval [i.e., the _direct_ action of the
people themselves, as, for example, in the ‘conventions’ whence, as
he already stated, _our_ Constitution proceeded ‘directly from the
people’] may be invoked, the people do not become a ‘legislature.’...
As well confound the creator and the creature--the principal and the
agent through which he acts.”
This is the echo of Marshall’s clear statement of the vital distinction
between the same “legislatures” (who never are the people and
never have the reserved ability of the people) and the “people” or
“conventions” (which are the people and have the exclusive ability
of the people). We recall the tribute paid to this distinction at
Philadelphia. We recall the legal decision there, a decision based
squarely on that distinction, that the legislative ability to make
_federal_ Articles could not constitute new government of men, as
did the First Article, and that all Articles like it or the new
Eighteenth Amendment must go to the “people” of the Tenth Amendment,
the “conventions” of the Seventh and Fifth Articles. We recall
Marshall’s appreciation of the accuracy of that legal decision, when
he mentioned that the ability of the state governments or legislatures
had been competent to make the _federal_ Articles of 1781 but, when it
was proposed to constitute government of men, to vest the _national_
powers of the _national_ First Article, “the necessity of deriving
those powers directly from the people [the “conventions” of the
Seventh Article] was known and recognized by all.” We remember that
the “people” or “conventions,” so recognizing and knowing, mentioned
themselves in the Fifth Article so that no one ever should forget the
similar legal necessity that every Article like the First, such as the
new Article, must always be made by those “conventions” so mentioned.
It is, therefore, with considerable satisfaction that we read, in this
brief of 1920, the clear echo of all these settled facts, the knowledge
that “legislatures” never are the people and never become the people.
“As well confound the creator and the creature--the principal and the
agent.”
In our gratitude for such remembrance, we ignore the inaccuracy of a
suggestion that the “legislatures” of the Fifth Article are the agent
of the principal therein mentioned, the “people” of America, the
“conventions” which made the Constitution. Each of those “legislatures”
is an agent of one particular reservee among those named collectively
in the reservation of the Tenth Amendment in the words “to the states
_respectively_,” while the “conventions” in the Fifth Article is the
one most important reservee in that Tenth Amendment, “the people”
of America, the most important factor in that Tenth Amendment and
in America. For the purpose of making any Articles, whether federal
or national, that important reservee has no legislative agents. For
any purpose, it has but one legislative agent, the Congress; and
to that one legislative agent it has given no power to _make_ any
constitutional Articles; but it has, in the Fifth Article, _left_ with
that agent the mere ability to _draft_ and _propose_ a new Article of
either kind and, as did the Philadelphia Convention, from the nature of
the Article it drafts, whether within the ability of “legislatures” or
within the exclusive unlimited ability of the people or “conventions,”
to _ascertain_ and _propose_ which shall make the drafted Article.
That the state legislatures are not agents of the American citizens,
in that capacity, is self-evident. Each legislature is chosen by the
citizens of a state. Moreover, the Constitution itself distinctly
states that the “conventions” of the American citizens grant no power
of any kind therein to the state “legislatures.”
When the American people created a national legislature, with certain
enumerated powers, it was neither necessary nor proper to define the
powers retained by the states. These powers proceed, _not from the
people of America_, but from the people of the several states; and
remain, after the adoption of the Constitution, what they were before,
except so far as they may be abridged by that instrument. (Marshall in
Sturges v. Crowinshield, 4 _Wheat._ 122.)
That is why anything which _these_ “legislatures” do, when it comes
in conflict with a valid action of _our_ legislature, the Congress,
must always yield. We have the supreme will in America, and when
_our_ agent, the Congress, speaks with authority from us, it speaks
for us, while the inferior agents of other lesser wills never speak
for us. That clear distinction does not detract from the ability of
those legislatures to make _federal_ Articles in our Constitution.
They do not get that ability from us, the citizens of America. They
had that ability from those respective inferior wills, when we made
our Constitution. By its exercise, they had made the federation of
states and the _federal_ Articles of its government. When we made our
national Constitution, we continued that federation and the ability of
its component members to make its federal Articles and put them in our
Constitution, which is both our national Constitution and their federal
Constitution. The ability to make those _federal_ Articles is one of
the powers reserved to those inferior wills by the reservation of the
Tenth Amendment which reads “to the states respectively”; and it is not
an ability to make Articles which is granted in the Fifth Article. No
ability to make Articles is _granted_ in that Fifth Article.
Inasmuch, however, as the writer of the brief in 1920 has known that
“legislatures” do not ever become “the people,” it is quite probable
that his reference did not intend to suggest that the legislatures of
which he spoke and who are the agents respectively of other citizens,
were the agents, for any purpose, of the citizens of America. With
his recognition that legislatures never are the people and with the
other quoted extracts of those briefs of 1920 before us, echoing the
knowledge we have acquired, we feel at least that in the court of 1920,
from the debate of men who know, we will learn whether and “when” and
“how,” we, between 1907 and 1917, became subjects instead of the free
men and citizens which we clearly were up to 1907.
At least such was the thought of one American citizen, when he read
this quotation, in one of the briefs of 1920, “that the people do
not become a legislature.... As well confound the creator and the
creature--the principal and the agent through which he acts.” It was
almost incredible to this particular American citizen that he found
this statement and the statement that--“The Constitution is not a
compact between states. It proceeds directly from the people.”--both
in the briefs of the foremost champion of the new Amendment. And it
seemed equally incredible to him to find the quotation about the
Statute of ’76 being “one great muniment of our liberty which can never
be amended, revoked or withdrawn” in the brief of the counsel for the
political organization which dictated the new state government command
to the citizens of America.
An unusual method had been adopted for the hearing of what were later
reported under the one title the “National Prohibition Cases,” 253
_U.S._ 350. In that hearing, which continued for days, seven different
litigations were argued because all dealt either with the validity of
the Eighteenth Amendment or with the meaning of its remarkable second
section or with the statute enacted under that section and known as
the Volstead Act. For the same reason, the briefs on both sides of
the various litigations were clearly the result of conference and
collaboration. Nearly all of the briefs, challenging the new Article,
made their challenge on the same two main points and in the expression
of those two challenges, made constant reference to the different
expression thereof in the other briefs.
In the litigation and argument of that March, appeared many of the
best known lawyers in America. Among them were distinguished counsel,
appearing on behalf of those legislative governments who claim and, in
the new Article, have attempted to exercise the omnipotent supremacy
over the citizens of America which was denied by the people of America
to the British Parliament. Among them were other distinguished
counsel, appearing on behalf of what had always been known as the
supreme legislative government in America, _our government_ with
its _enumerated_ powers and without omnipotence over us. Among them
were still other distinguished counsel, appearing on behalf of some
separate states or political entities to contend that there existed
no _constitutional_ ability anywhere, even in ourselves, to take
from their particular state any more of its sovereignty than it had
surrendered in those early days when the states made the Constitution,
as Sheppard claimed in the Congress of 1917. Among them were still
other distinguished counsel, some of them the most distinguished of
all, appearing to oppose, as best they knew how, the total destruction
of all _legitimate_ industry in a business in which it was the _human_
right of Americans to engage even before Americans wrote their Statute
of ’76 and consequently not a privilege of the citizen of America or
the citizen of any state.
As this fact has been the basis of many errors in that comedy and
tragedy of errors, which is the five-year tale of the Eighteenth
Amendment, we average Americans may well dwell for a moment upon the
certainty of that fact. It is the natural mistake of those, who have
the Tory concept of the relation of men to government, that they should
first confuse the meaning of the words “privilege of a citizen” with
the words “privilege of a subject” and thus believe that the nature of
both privileges, and the source of each are the same. That mistake is
but the echo of the error which confuses the nature of Magna Charta
with that of the Statute of ’76. Magna Charta is the declaration of
certain privileges which government will permit its subjects to keep as
long as the government pleases. The Statute of ’76 is the declaration
that destroys the relation of government to subjects, creates the
relation of citizens to their servant governments, and states that the
servants shall have no power to interfere with the human rights of
the masters, given by their Creator, except such power as the masters
choose to give, and that the servants shall keep that power only so
long as the masters will. To the Tory concept, always concentrated
on the relation of subject to master government, it is difficult of
apprehension that the human being is born with the right to use his
human freedom as he himself wills, so long as he does not interfere
with the similar exercise of human freedom by the rest of us human
beings. If men, in the exercise of their free will, would always obey
the defined law of Him who created them, the exercise of human freedom
by one individual would never interfere with the exercise of human
freedom by all other individuals, and no human government need ever be
constituted.
Among the human rights of Americans, as of all human beings, when
they come into the world, is the human right to do everything which
is forbidden in the first section of the Eighteenth Amendment. It is
true, as we frequently hear stated, that the Supreme Court has decided
that the right to do any of those things is not the “privilege” of
American citizens or of the citizens of any state. It is also equally
true, although the Supreme Court has never been called upon to
decide that very obvious fact, that the right to breathe is not the
“privilege” of an American citizen or of the citizen of a state. Both
rights are among the rights of human beings, _as such_, and they are
each of them among the rights of themselves, which we, “the people”
of America, established and ordained our Constitution to secure. When
we established that Constitution for that purpose, we admittedly gave
our only American government no power to make the command of the first
section of the Eighteenth Amendment. That is why the governments of
_other_ citizens were asked to make the command to ourselves, the
citizens of America.
Each of the Americans, who created the nation that is America, already
lived as a member and citizen of a state. In that state, when they had
constituted it, the citizens _thereof_ had subjected their human right
(to do what the new Amendment says shall not be done) to a power in the
government of that state (a power which _they_ gave it and can take
back from it) to make that kind of a command _to them_ in that matter.
We thus have clearly in our minds that the individual in America has
the human right (with which the new Amendment interferes) and that it
is subject to the interference of no government, except as the citizens
of that particular government have given it power so to interfere with
it. The undoubted fact that the right itself is not the privilege of
the citizen of America or the citizen of the state is simply another
way of saying that the original human right itself is not granted
to the human being by government or governments but by the Creator
Who made him. Without the Tory concept, no man would even make the
mistake of believing that a citizen gets any of his privileges from
any government. The privileges of a citizen are the things which
he acquires by his voluntary association with the other citizens as
the members of a political society which is the nation. The human
rights of the same individual are the rights which he brings into that
association and subjects to whatever powers of its government are
granted by himself and those other citizens with whom he associates as
the nation.
Of course, the early Americans, with whom we have now been educated,
not only knew these things clearly and accurately, but on their
knowledge of them based everything that they did in the fifteen years
which we have lived with them. The Americans of today, who uphold
the new constitution of government made entirely by government, do
not know them at all or understand them when they hear them. Neither
would the aristocrats of France, before the French Revolution, nor the
Tories of England, even at the time of our Revolution, have known or
understood them. That is why the Americans continued their Revolution
and won it, so that these things might be the basis of every government
interference with any human right. Later they made the American
Constitution solely to secure the greatest possible protected enjoyment
of all individual human rights. That security is one of the privileges
acquired by citizenship in the society which that Constitution created.
Wherefore, it is of interest for us to know how clearly Madison, who
largely planned that Constitution and who worded its Fifth Article, did
know and understand these facts in relation even to the very things
forbidden in the new constitution of government made entirely by
government.
In the House of Representatives, in the first session of the new
Congress with the enumerated powers of the First Article, on May 15,
there came up for discussion “a proposed bill laying duties on goods.”
Madison “moved to lay an impost of eight cents on all beer imported. He
did not think this would be a monopoly, but he hoped it would be such
an encouragement so as to induce the manufacture to take deep root in
every state of the Union.” (4 _Ell. Deb._ 345.)
That the knowledge of Madison was not unknown to the Supreme Court a
century later, in 1890, is a matter of record.
That ardent spirits, distilled liquors, ale, and beer are subjects of
exchange, barter, and traffic, like any other commodity _in which a
right of traffic exists_, and are so recognized by the usages of the
commercial world, the laws of Congress, and the decisions of courts,
is not denied. (Leisy v. Hardin, 135 _U. S._ 100.)
Returning to the courtroom of 1920, therefore, we are sincerely glad to
note the appearance of quite an array of eminent counsel on behalf of
those legitimately engaged in a business which is just as legitimate
an exercise of human right, as it was when Madison hoped that it would
take deep root in every state of the America he loved so well, a
business which will continue free from _unlawful_ usurpation of power
by government so long as the Constitution planned by Madison is obeyed
by governments in America. It is too bad that the eminent counsel, who
shared Madison’s views in relation to that legitimate business, did
not also have Madison’s accurate knowledge of the only way in which
legitimate government power can be created to interfere with that or
any other human right, the way which Madison so clearly stated in the
Fifth Article--by grant from the “conventions” of American citizens.
When we average Americans look over the great array of counsel and
the respective clients whose causes they champion, one fact lends no
encouragement to our hope that we may learn the merits of the claim
that, somehow between 1907 and 1917 we became subjects and lost our
status as free men. Although each client is represented by his own
distinguished attorneys and although eminent counsel argue and file
briefs, as _amici curiæ_, on behalf of the state governments which
claim that we are subjects and on behalf of some of the litigating
other states and individuals, no _amicus curiæ_ files any brief on
behalf of us, the citizens of America, the reservees of the Tenth
Amendment, the “conventions” of the Seventh and the Fifth Articles.
There is, however, this comfort. If, _because_ the counsel in
opposition to the new Amendment do not know and urge our legal
protection against any new constitution of _national_ government except
by ourselves, the citizens of America, the “conventions” of the Fifth
Article, and if, _because_ of such ignorance on the part of counsel,
the Court should not be called upon either to consider or pass upon
our protection, no decision of the Court will be intended to have--as
no decision of the Court could have--any effect upon our protection.
If counsel fail to bring before the Court the legal facts which
demonstrate that the new Amendment is not in the Constitution unless
we Americans are “subjects,” our day in Court is merely postponed.
And when that day shall come, when that Court is addressed by counsel
who do represent the citizens of America and who accurately know the
constitutional protection which we have for all our rights, there is
not the slightest danger that the Court, established and maintained
by us for the sole purpose of protecting our individual rights against
usurpation by government, will decide that we are subjects and that
governments can create new government power to interfere with the
freedom of the individual American citizen.
Meanwhile, let us examine the briefs of March, 1920. In them, despite
our regret that not one of them was written in our behalf, it may be
possible, it ought to be a certainty, that we will hear something about
the “when” and the “how,” _after_ 1907, we are supposed to have lost
our status as free men and citizens of America.
CHAPTER XXI
BRIEFS IGNORE THE AMERICAN CITIZEN
There is one man whose skill as an artist could do justice to the
atmosphere in which all the briefs of that March must have been
written. Unfortunately, the reports of the death of that man are no
longer greatly exaggerated. It is unfortunate that the man who pictured
the sensations of a Yankee in King Arthur’s Court could not have lived
to reverse the feat. Only his genius could picture one of the Americans
of 1790 living in the atmosphere of the briefs of 1920 _for_ the new
Amendment and learning therein that the Americans of his own day never
became citizens of America. Only the unique word-artist, who defined
a cauliflower as a cabbage with a college education, could adequately
state the startling fact that not one of the briefers knew that all
were assembled in the court room of March, 1920, seriously to debate
whether the Americans in 1788 voluntarily surrendered their status
as free men and, repealing their Statute of ’76, declared themselves
and their posterity subject to a legislative government superior to
what they called their supreme legislature, a legislative government
“invested with power to legislate for us in all cases whatsoever.”
Because Mark Twain is dead, we must get from those briefs, without
his aid, the knowledge that the new Article depends entirely on the
extraordinary concept that the Fifth Article constituted a hitherto
unknown government of all American citizens, not our government
of enumerated First Article powers but an entirely distinct
government--not a member of it chosen by American citizens--“invested
with power to legislate for us in all cases whatsoever.”
In other words, we are to learn from the briefs _for_ the new Article
that our supposed only and supreme American government is, and that
all American citizens are, subject to the omnipotence of a still more
supreme legislative government, consisting of the state legislative
governments on whose behalf some of the most distinguished lawyers
of 1920 appeared. It is the clear concept of those lawyers that upon
the _will_ of the governments they represented, a will subject to
the restraint of no Constitution in America, depends entirely what
measure of human freedom we individual American citizens may enjoy.
This concept stands out clear and sharply defined in their briefs,
although neither they nor their opponent lawyers grasp the fact. On
the fact that the Fifth Article _mentions_ their client governments,
the state legislatures, they base the entire claim that the Eighteenth
Amendment is in our Constitution. On this _mention_ rests their
extraordinary assumption that the Fifth Article is a _“grant”_ of power
to those governments--and to the very “conventions” which made the
Fifth Article--to make new Articles of every kind, whether _federal_
to govern states or _national_ to interfere with the freedom of the
individual.
Furthermore, we are to learn, from the briefs of the lawyers _against_
the new Article, that they all assert, like their opponents, that the
Fifth Article _is_ a _grant_ of power to the grantors and to the state
governments. To our amazement, in the briefs of the lawyers _against_
the new Article, we shall find no knowledge of or insistence upon
the important fact that the Constitution is both a _federal_ and a
_national_ Constitution. Most amazing of all, in no brief of any
lawyer, shall we find the faintest recognition of the _decisive_ fact
that the “conventions” of the Fifth Article are the American citizens
themselves, while the state “legislatures” of the Fifth Article are
respectively the attorneys in fact for respective citizens of other
political entities than the nation which is America. Most briefs, _for_
the new Amendment, will dwell upon the fact that the people of America,
not the states, made the Constitution. Yet, although it is equally
true to say that the whole people of America or the “conventions” of
the Seventh Article made the Constitution, no briefer will know that
the “conventions” of the Fifth Article are also the whole people of
America, while the state “legislatures” never are the attorneys in fact
for the citizens of America, who never chose a single member of those
“legislatures.”
That all those lawyers, who debated the _extent_ of the imaginary
“grant” of power in the Fifth Article, may do themselves strict
justice, let us accurately state a few indisputable facts before we
consider their briefs.
It _is_ a fact that the subject matter of the first section command and
the second section grant, in the Eighteenth Amendment, is the exercise
of a human right, not the privilege of a citizen of America or the
citizen of any state.
It _is_ a fact that the Americans in each former colony, in 1776,
constituted a state for themselves and a government of that state
and subjected that particular right, as all _their_ individual human
rights, to the general welfare state power of _that_ government, the
power which is now known as the police power.
It _is_ a fact that, from 1776 to 1787, that particular individual
right, as _all_ the human rights of the citizens of any state, was
subject to no interference by any government or governments in the
world except the one legislative government of that particular state.
It _is_ a fact that all the legislative governments of the other states
and the government of the federation of states could neither exercise
nor grant, as some of them have attempted to do in the Eighteenth
Amendment, any power to interfere with that particular individual
freedom or any other individual freedom of the citizens in that
particular state.
It _is_ a fact that, on June 21, 1788, the Americans in the nine states
became collectively one political entity, the citizens of America,
composing the nation which is America. It _is_ a fact, _and a fact
which flatly denies the existence of the Eighteenth Amendment_, that,
on June 21, 1788, the existing state legislatures did not become an
omnipotent legislative body of the new nation “invested with power
to legislate” for American citizens “in all cases whatsoever” in
interference with our individual freedom. It _is_ a fact that those
legislatures did not then become any government for the citizens of
America on any subject whatsoever.
It _is_ a fact that not one of those state legislatures received any
new power to interfere with human freedom anywhere by any grant of
_such_ power in the seven Articles of our Constitution. The opening
words of the First Article expressly so declare. They are, “All
legislative powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and a House of
Representatives.” Moreover, the Tenth Amendment, the declaration
insisted upon by the whole “people” of America in their “conventions,”
expressly so declares. Its declaration is that the entire Constitution
gives no new power to any government except the new government of
America, the government constituted by the First Article.
It _is_ a fact, again a fact which denies the existence of the
Eighteenth Amendment, that the _general constitutional restrictions
upon government power to interfere with individual freedom_ are
restraints upon the exercise of every grant of such power in the
Constitution, and that they do not restrain the state governments
_because those governments are the donee of no power of that kind in
that Constitution_. This fact, a patent fact hardly needing settlement,
was decisively settled in 1833 by the decision of the Supreme Court,
announced by Marshall, in Barron v. Mayor of Baltimore, 7 _Peters_, 43.
Barron contended that the Fifth Amendment restrained the power of the
state governments. Marshall said:
The question thus presented is, we think, of great importance, _but
not of much difficulty_. The Constitution was ordained and established
by the people of the United States for themselves, for their own
government, and not for the government of the individual states. Each
state established a constitution for itself, and in that constitution
provided such limitations and restrictions on the powers of its
particular government as its judgment dictated. The people of the
_United States_ framed _such_ a government for the United States as
_they_ supposed best adapted to _their_ situation, and best calculated
to promote _their_ interests. The powers _they_ conferred on this
government were to be exercised by _itself;_ and the limitations on
power, if expressed in general terms, are naturally, and, we think,
necessarily, applicable to the _government created by the instrument._
They are limitations of power _granted in the instrument itself;_ not
of distinct governments, framed by different persons and for different
purposes.
The decision settled that the entire Constitution vested in the state
governments not a single power to interfere with individual freedom
in any respect. The decision is based on that one fact. The fact and
decision expose the absurdity of the thought that the Fifth Article is
a “_grant_” of any _such_ power to the state governments, much less a
grant of _every_ such power to those governments. This absurd thought,
however, is the assumption on which every advocate of the Eighteenth
Amendment based his argument in March, 1920: and it is the assumption
upon which wholly depends the existence of the Amendment.
It _is_ a fact that the state legislatures, before the Constitution
was even proposed, had existing ability to make _federal_ Articles. It
_is_ a fact, as the Tenth Amendment declares, that the “conventions” of
the Seventh Article _reserved_ that _federal_ ability to those state
governments and that the Fifth Article did not “_grant_” it to them. It
_is_ a fact, that the “conventions” of ourselves, the American citizens
assembled in their respective states, the “conventions” of the Seventh
_and_ the Fifth Article, even before the Constitution was worded
or proposed, had _exclusive_ ability to make _national_ Articles,
which either directly interfere or grant ability to interfere with
individual freedom. It _is_ a fact that this power of the “conventions”
included the ability to make any kind of Article, either _federal_ or
_national_. It _is_ a fact, therefore, as the “conventions” of the
American citizens had this omnipotent power before the Fifth Article
was even drafted, and as the Tenth Amendment states that _they_
reserved it to _themselves_, that they did not grant _all of it_ (as
the advocates of the new Amendment claimed in March, 1920), or _part
of it_ (as the opponents of the new Amendment claimed in March, 1920)
to themselves in their own Fifth Article. It _is_ a fact, therefore,
that the _mention_ of the two existing abilities (the existing
omnipotent ability of the “conventions” and the existing _limited_
ability of the “state legislatures”) does _not_ make the Fifth Article
any “_grant_” of power either to the “conventions” (who made the
Article) or to the state “legislatures.”
It _is_ a fact that the very “conventions” named in the Fifth
Article and the American citizens assembled therein, while they
were making that Article, accurately knew that it was nothing but
a _constitutional_ mode of procedure for two distinct and existing
powers, and that it did not “_grant_” any power whatever to the state
governments.
Speaking of the Constitution, with its Fifth Article, the entire
convention in Virginia declared that all the powers granted in the
Constitution were being granted by the people _of America_ “and that
every power, not granted thereby, remains with _them_, and at _their_
will.” Nothing could more clearly express the knowledge that the Fifth
Article was not a grant of any power by the “conventions” to the
“conventions” or to the state governments. In the Virginia convention,
Lee stated: “This new system shows, in stronger terms than words could
declare, that the liberties of the people are secure. It goes on
the principle that all power is in the people, and that rulers have
no powers but what are _enumerated_ [in the First Article] in that
paper.... Candor must confess that it is infinitely more attentive to
the liberties of the people than any state government.” (3 _Ell. Deb._
186.)
In the South Carolina convention, Pinckney said: “With us, the
sovereignty of the Union is in the people” (4. _Ell. Deb._ 328), and
again “I conceive it as _indispensable_, in a republic, that all
authority should flow from the people.” (4 _Ell. Deb._ 326.)
Hamilton, one of the people assembled in the New York convention, said:
“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, the “conventions” of the Fifth
Article and the Seventh, “whenever it may be necessary to enlarge,
diminish, or new-model the powers of government.” (_Fed._ No. 49.) He
could hardly have made more clear his knowledge that the Fifth Article
was not a “grant” of power to the state governments. As Madison and
Hamilton proposed and seconded the only Fifth Article, at Philadelphia,
which ever mentioned the state legislatures, their own words have great
weight in the interpretation of its language. For which reason, it is
well to recall again that Madison, in _Federalist_ Number 37, clearly
said that “the genius of republican liberty seems to demand ... not
only that all power should be derived from the people.” And either
Madison or Hamilton said in _The Federalist_, Number 49, the reference
to the Fifth Article being unmistakable from what they said, “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.” As they both maintained, at the Philadelphia Convention
and thereafter, that the ability of state governments was incompetent
to constitute government with national powers to interfere with human
freedom, and as they both repeatedly stated that it would be contrary
to the genius of republican liberty that _any_ governments should
have that ability, they have made unmistakable _their_ knowledge that
the Fifth Article, which they proposed and seconded and which Madison
probably worded, did not grant any such ability to governments.
In the Pennsylvania convention, Wilson clearly expressed the knowledge
which reads the new Eighteenth Amendment out of our Constitution, when
he said: “In this Constitution, the _citizens_ of the United States
appear dispensing a part of their original power in what manner and
what proportion _they_ think fit. They never part with the whole; and
they retain the right of recalling what they part with.” (2 _Ell. Deb._
437.) Can any man, even a modern “constitutional” lawyer, reconcile
that knowledge with the thought that the Fifth Article is a grant of
power to the state governments? Again in the same convention, he said,
speaking of our Constitution: “Here, sir, the fee simple of power
remains in the people _at large_ and by this Constitution _they_ do not
part with it.” (2 _Ell. Deb._ 435.) In the North Carolina convention,
Iredell, later on the Supreme Court Bench, said: “No man, let his
ingenuity be what it will, could enumerate all the individual rights
not relinquished by this Constitution.” (4 _Ell. Deb._ 149.)
All these facts should be dwelt upon and emphasized in the briefs of
the lawyers _against_ the new Article in which government attempts
to exercise ungranted power and to grant new power to interfere with
the individual freedom of the American citizen. And against all _our_
education in the “conventions,” it must be the burden of the briefs of
the lawyers _for_ the new Amendment to uphold the amazing proposition
that all the individual rights of the American citizens were, by the
Fifth Article, made subject to a supposed omnipotence granted to the
state governments, not a member of which is chosen by the citizens of
America.
CHAPTER XXII
NO CHALLENGE TO THE TORY CONCEPT
We average Americans, therefore, come to the courtroom of 1920
with some knowledge that is a mathematical certainty. We know that
everything done at Philadelphia by the “conventions” named in the
Seventh Article was done with one dominant purpose--the security of
individual human freedom. We know that, at Philadelphia and in those
“conventions,” the old states and their governments, the _federal_
government and its continuation in the new Constitution, the new
nation and its Constitution and its government were only important as
the American citizens considered that each or all would contribute to
the security of American _individual_ freedom. We know that, only in
rare instances, such as that of Gerry, did a Tory mental attitude lead
a man into the error (for any American after ’76) of thinking that
political entities (such as states or nations or their governments)
have the slightest importance except in so far as they contribute to
the individual freedom of the citizens who create them and _must_
control them, if an American is to remain a citizen. We know that
every American, in those “conventions,” discussed and voted upon
every mention of these political entities, with insistent realization
that nothing anywhere in the Constitution was intended to disturb
or did disturb the legal fact that only the citizens of America,
in “conventions,” ever could say _how much national power_ the new
government should have, _how much_ each old state should be allowed
to retain over its own citizens and _how much_ the citizens of America
should reserve from all governments in America. We also know this legal
fact to have been the most important legal fact in America to the
Americans in those “conventions.” We know that it was the legal fact
whose denial by the British Parliament caused the Revolution. We know
that, from July 4, 1776, everything which the Americans did was solely
to make it impossible that any one could ever deny this legal fact in
America.
And we also know, something that has been entirely ignored since 1917,
that these “conventions” knew that the “conventions” of the Seventh and
the Fifth Articles were identically the same thing and were the most
important reservee in the Tenth Amendment, “the people” of America, in
their aggregate and collective capacity as Henry accurately put it.
With this simple and amazingly important knowledge of facts, a
knowledge acquired by our education with the Americans who made
themselves and their posterity free men instead of “subjects,” we come
to the arguments and briefs of 1920. There we expect to learn how the
opponents of the Eighteenth Amendment presented and its supporters
answered these facts. Because these facts we do know, if they are _all_
the facts, flatly deny the existence of that new _national_ Article,
made by governments alone.
If forbearance were the sole rule for conduct, if conscience permitted
us to ignore the great danger to our own _individual_ freedom in
_every_ matter, we would be absolutely silent as to the contents of all
those briefs. But, that the _supposed_ presence of the new _national_
Article in the _national_ Constitution of a free people may never be a
precedent for other _government_ making of _national_ Articles, it is
our duty to learn and state what those briefs all disclose.
Not one of them recognizes the identity of the “conventions” of the
Fifth Article with the “conventions” of the Seventh. And all ignore the
identity of the Fifth Article “conventions” with “We, the people” of
America, in the Preamble, and with the most important reservee of the
Tenth Amendment, “the people” of America.
Every argument, whether for or against the new _national_ article,
is based upon the sheer and absurd assumption that the “conventions”
in their Fifth Article _did_ make a _grant_ to themselves, the
“conventions,” and to the state governments. The advocates of the new
Article assume that the “conventions” _granted_ to themselves and to
the state governments _all_ the inalienable omnipotence of the American
people themselves, in their aggregate capacity as the citizens of
America, the very omnipotence the supposed grantors were exercising
when they made the Fifth Article. The opponents of the new _national_
Article assert the absurd assumption of a “_grant_,” but contend for
diverse reasons--remarkable by reason of the fallacy of a “_grant_”
on which each rests--that the “conventions” grant to themselves _only
a part_ of the omnipotence which they already had and were exercising
when they made the supposed “grant.” On which theory, they urge that
the supposed “grant” to the state governments, being identical with
the supposed “grant” to the grantors themselves, is _only part_ of the
omnipotence which the grantors already had and does not include ability
to make Articles like the Eighteenth Amendment.
Not one of these briefs recognizes or urges that the Fifth Article
is not a “grant” of ability _to make_ Articles whether _federal_
or _national_. No brief knows the Fifth Article to be simply the
ratification, by the whole American people, of a hitherto revolutionary
mode of procedure as the future CONSTITUTIONAL mode in which may be
exercised either the existing and limited ability of state legislatures
to make _federal_ Articles or the existing and unlimited ability of the
“people” (the “conventions”) to make _any_ Articles. No brief either
recognizes or urges the absurdity of the thought that the “conventions”
intended to grant or did grant to themselves, the “conventions,” any
part of the omnipotence which the supposed grantors were actually
exercising when making the supposed grant.
No brief recognizes that one of the supposed grantees _is_ the
supposed grantor. No brief seems to know that the supposed grantees
were respectively competent makers of certain kinds of Articles even
before the Fifth Article was written at Philadelphia. No brief seems
to know--or to sense the decisive effect of the fact--that, within the
twelve years which immediately preceded the supposed “grant,” each
of the two respective makers of Articles, who are mentioned in the
Fifth Article, had exercised its respective ability to make Articles
_of a certain kind_. No brief seems to know that one of the supposed
grantees, the “conventions,” at the very moment of the supposed
“grant,” was exercising its own unlimited ability to make Articles of
every kind. For all that the briefs disclose, in the decisive effect of
the two facts upon the supposed validity of the Eighteenth Amendment,
the “state legislatures” might never have made the _federal_ Articles
of 1781 and the “conventions” might never have made the _federal_ and
_national_ Articles of 1788.
No brief urges the greatest legal decision made at Philadelphia in 1787
as binding legal authority that the state “legislatures” of the Fifth
Article _never_ can, while the Fifth Article “conventions” _always_
can, make a _national_ Article like the First Article or the Eighteenth
Amendment. One brief does suggest that decision as authority for the
absurd proposition that the Fifth Article mentions no CONSTITUTIONAL
mode in which even the exclusive ability of the “conventions” of the
American citizens can be again exercised to make Articles like the
First Article and the Eighteenth Amendment. In urging that absurd
proposition, the briefer wholly ignores the fact that the Philadelphia
Convention, which made that legal decision, reached its conclusion by
ascertaining what were and still are the _respective_ abilities (to
make Articles) of the state “legislatures” and the “conventions,” both
of which are named as future makers in the Fifth Article.
No brief recognizes the fact (or urges any argument based upon it) that
the Constitution _is_ both a _federal_ and a _national_ Constitution.
For which reason, no brief points out that the Tenth Amendment
expressly reserves the ability to make _federal_ Articles to the state
“legislatures” and the exclusive ability to make _national_ Articles
to the “conventions.” For which reason, no brief points out that each
of the two reservees, named in the Tenth Amendment, is mentioned
separately in the Fifth Article as a possible maker of future articles,
whenever a proposed future Article is of the kind which the existing
ability of the proposed maker is competent to make.
No brief, _against_ the new Amendment, challenges the sheer and absurd
assumption that the Fifth Article _is_ a “grant.” No brief, _for_ the
new Amendment, offers or suggests the slightest fact in support of that
sheer assumption.
Every brief _for_ the new Amendment, on the fallacy of the _sheer
assumption_ that the Fifth Article _is_ a grant, contends that the
Article makes a fractional part of the state legislatures an omnipotent
Parliament for the American people, a Parliament not restrained by any
constitutional limitations in state or national constitutions but a
Parliament which can do what it will with every individual right of
every human being in America. These briefs neither know nor care that
their concept of the Fifth Article means that the “conventions” of the
American citizens, twelve years after the Declaration of Independence,
intended to make and did make themselves absolute “subjects” of
governments, not one of whose legislators was to be elected by
Americans in their capacity as American citizens. The foremost of
these briefs were written by eminent “constitutional” lawyers who had,
as clients, the very governments which claimed this omnipotence over
individual Americans as their “subjects.”
Every brief, _against_ the new Amendment, not only admitted but
asserted the absurd assumption that the Fifth Article is a “grant”
to the grantors and to the state governments. In the foremost brief
against the new Amendment, that absurd assumption is asserted or
mentioned over fifty times. On this absurd assumption, every argument,
in _these_ briefs, as well as in the opposing briefs, is based. In
this respect, there was but one difference between any brief and
another. That difference was in reference to the _extent_ of the
supposed “grant” which the grantors made to themselves and to the state
governments.
Not one brief, presented in these litigations of 1920, knew or urged
the undoubted fact that, _because_ our government is both federal
and national, if it wants new power to interfere with the freedom of
the American citizen, that government can get that power in only one
CONSTITUTIONAL mode, through the “conventions” named in the Fifth
Article. No briefer knew the legal necessity that all power _of that
kind_ must be obtained directly from the citizens of America, assembled
in their “conventions.” We ourselves know that there was a day in
America when that legal necessity “was felt and acknowledged by all.”
It is almost impossible for us, therefore, educated as we are in the
experience of the Americans who did know, to believe these statements
about these briefs. Yet the briefs speak for themselves.
Before, however, we turn to verify the statements by the briefs
themselves, it is well that we recall one amazing question and answer,
during the arguments of 1920 in the Supreme Court, which question and
answer overwhelmingly demonstrate that none of these “constitutional”
lawyers knew or cared about the facts we know.
The Supreme Court had listened, for several days, to many clever
arguments against the new _national_ Article. The arguments had
challenged validity on the ground that the new Article infringed upon
the political freedom of some political entity, such as a state or its
government. Sometimes the arguments had challenged validity on the
ground that the new Article infringed upon the liberty of the citizens
_of some particular state_. No argument had challenged validity on the
one patent and unanswerable ground that the “conventions” of 1788 had
provided that no _national_ Article, which (like the First Article and
the Eighteenth Amendment) directly interferes with or grants power to
interfere with individual liberty of the American citizen, could ever
be CONSTITUTIONALLY made, except in the one CONSTITUTIONAL mode of
procedure, in which the _only_ competent makers of _national_ Articles
can make _such_ Articles, the “conventions in three fourths of” the
states, mentioned in the Fifth Article.
Rice of Rhode Island, one of the many prominent lawyers _against_
validity, was urging his particular argument. Ignoring the citizens
of America in the “conventions” of the Fifth Article, he claimed that
no power in America could interfere with individuals in Rhode Island,
outside the First Article matters, without the consent of Rhode Island
itself. He was interrupted by the Court. In substance, this is the
question and answer that followed: Justice Brandeis: “The court is
now fully acquainted with the nature of the arguments of the various
counsel as to why the new Article has _not_ been validly made. The
Court would like to know, In what way do counsel think that the new
Article _could_ be _constitutionally_ made?” And the answer of Rice,
undoubtedly voicing the conviction of all his colleagues, for none of
them had any other answer to volunteer, was: “_In no way._”
Fresh from the “conventions,” which knew that _they_ could have made
what is supposed to be the Eighteenth Amendment, we could make the
correct answer to that question. Our answer is that the “conventions”
of the whole American people could have made this new Article in 1788
just as they did make the First Article of exactly the same kind. They
could have made it, not because any Constitution gave them the power
to make it. They could have made it because, in its making, they would
have exercised exactly the same existing ability which they exercised
when they destroyed the power of the British Government over themselves
in 1776, which they exercised when they ended the complete independence
of each state in 1788 and which they exercised when they made _all_
the Articles of 1788. When they did each of these things, they had
prescribed no “constitutional” mode of procedure in which they might
_constitutionally_ exercise that exclusive ability of their own. By
the declaration of the Tenth Amendment, they reserved that exclusive
ability to themselves. And, in the Fifth Article, they prescribed,
for the first time, exactly the same mode, in which they were then
exercising that exclusive ability, as the future CONSTITUTIONAL
mode for its further exercise. As Marshall stated, in the Supreme
Court, there is but one way in which they can exercise it, “safely,
effectively, and wisely,” by assembling in their “conventions” in their
respective states.
If the accuracy and truth of this sole possible correct answer to the
question of 1920 is so well known to us, certainly it should have
been known to at least one of the “constitutional” lawyers of 1920.
Moreover, _every_ “constitutional” lawyer of 1920 should have known
that the mention of state governments in the Fifth Article was not
intended to make them omnipotent over the individual rights of the
American citizen or to provide an unsafe, ineffectual and unwise way
or any way in which government in America could create new government
power to interfere with individual freedom.
Madison wrote the Fifth Article. Immediately after he had secured
its proposal from Philadelphia, in the Virginia convention he paid
his famous tribute to the “conventions”--but not to the “state
legislatures”--which he mentions in his Fifth Article. “Mr. Chairman,
nothing has excited more admiration in the world than the manner in
which free governments have been established in America; for it was
the first instance, from the creation of the world to the American
Revolution, that free inhabitants have been seen deliberating on the
form of government, and selecting such of their citizens as possessed
their confidence, to determine upon and give effect to it.” (3 _Ell.
Deb._ 616.)
But, whatever the ignorance of our constitutional lawyers, _we_ know
why Madison, in his Fifth Article, mentions these “conventions”
in which free inhabitants are seen deliberating on new grants or
constitutions of government power to interfere with individual
freedom. When future grants of such power are suggested, there is
to be a CONSTITUTIONAL mode prescribed for the reassembling of such
“conventions” to make or refuse the grants.
Our experience with Madison and his colleagues would educate these
“constitutional” lawyers to keen realization that the Americans of old
knew the vital distinction, so important to individual liberty, between
permanent and existing state legislatures and these “conventions” of
the American people themselves, chosen for the one purpose of answering
“Yes” or “No” to a particular question previously carefully considered
by all the American citizens.
Let these “constitutional” lawyers spend a moment with Hamilton, on
Friday, March 14, 1788, when he was urging the American people to
adopt the Constitution with that Fifth Article.